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Vives v. City of New York (Challenge to New York State Statute criminalizing mailing of “annoying” or “alarming” materials)

This case involves a challenge to the constitutionality of New York State’s aggravated harassment statute, which makes it a crime to mail materials that are annoying or alarming. Carlos Vives was arrested and detained by the NYPD for about nine hours in April 2002 for mailing nonthreatening political and religious materials to a woman who was running for political office and complained to the police that the materials alarmed her. The District Attorney’s office declined to prosecute the case. In August 2002, the NYCLU filed suit in federal District Court arguing that the statute under which Mr. Vives was arrested was unconstitutional under the First Amendment and that the arrest was unlawful.

On Nov. 24, 2003, the District Court ruled that the statute was unconstitutional on its face and that the arrest of Mr. Vives violated his First and Fourth Amendment rights. Further, the court enjoined the NYPD from further enforcement of the statute and denied the city’s motion to dismiss the damage claims against the arresting officers upon the ground that they enjoyed a qualified immunity. The city immediately appealed the qualified-immunity ruling with respect to the individual officers. As for damages against the city, the court denied the city’s motion that it cannot be held liable under 42 U.S.C. §1983 for damages arising out of its enforcement of a state statute. On Dec. 21, 2004, the Second Circuit reversed and held that the individual officers were entitled to qualified immunity. However, the court deferred judgment regarding the constitutionality of the statute for further proceedings.

The NYCLU filed a motion for summary judgment claiming that the city could be liable for damages for enforcement of an unconstitutional state statute, which was granted by the District Court on Dec. 22. Mr. Vives also had a damages claim arising out of his unlawful arrest and detention. The parties were unable to settle that claim, and the claim was presented to a jury on March 10, 2005. The jury returned an award of $3,300 for Mr. Vives. The city appealled the District Court’s legal rulings. In December 2005, Second Circuit heard oral argument.

On May 1, 2008, the Second Circuit ruled that while a municipality cannot be liable for enforcing state law that affirmatively obligates the municipality to act, it can be held liable for its discretionary enforcement of state law so long as it has adopted a conscious policy of enforcing the specific law in question. A simple policy of enforcing all state law is not sufficient to create municipal liability. The court further found that the aggravated harassment statute did not compel the City to act, so it may be liable in this case. Nonetheless, the court concluded that the record was not sufficiently clear about whether the city had adopted a conscious policy of enforcing the statute and thus remanded the case to the District Court to make findings on this issue. 

S.D.N.Y., Index No. 02 Civ. 6646 (SAS) (HP), U.S. Court of Appeals, 2nd Cir., No. 03-9270 (direct) 

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