ALBANY – Judicial immunity protects a county judge from a lawsuit by the disgruntled father of a 16-year-old whom the judge sentenced as an adult for a shooting in Cooperstown, a federal judge has determined in dismissing the action.
Anthony Pacherille Sr. accused Otsego County Judge Brian Burns (See Profile) of violating his First and Fourth Amendment rights by seeking to block him from publicly protesting decisions involving Anthony Pacherille Jr.
Northern District Judge Gary Sharpe (See Profile) ruled in Pacherille v. Burns, 3:13-cv-789, that it was “objectively reasonable” for Burns to have perceived a threat to his own and his family’s safety, without believing he was violating Pacherille’s rights, when the judge complained to police about Pacherille.
In April 2010, Pacherille Jr. encountered Wes Lippett, a classmate, near the Baseball Hall of Fame in Cooperstown. He chased Lippett into the police station where he shot Lippett in the arm. Pacherille Jr. then shot himself in the jaw in a suicide attempt.
He recovered and Burns accepted Pacherille Jr.’s guilty plea to second-degree attempted murder.
In July 2011, Burns sentenced him as an adult to 11 years in prison. His father objected to the disposition of the case, saying his son, who is white, had been bullied for years by Lippitt, who is black, and his friends. Pacherille Sr. contends his son was ridiculed for being Italian and Roman Catholic.
The state Court of Appeals will hear an appeal of his prosecution and sentencing in People v. Pacherille early next year.
After Pacherille Jr. entered his plea, but before he was sentenced, the court said his father helped create “coophallofshame.com,” a website that excoriated Burns, Otsego County District Attorney John Muehl and others for originally charging Lippitt’s shooting as a hate crime and failing to see his son as a “tortured child” and a “mentally ill boy.”
On Aug. 2, 2011, Pacherille knocked on the door of Burns’ home. His wife Elizabeth asked him in a brief conversation to get off her porch, according to the ruling. “I guess I am in the right place,” Pacherille said as he left.
Pacherille said he only wanted to confirm the home as the judge’s so he could apply for a permit from the city of Oneonta to demonstrate in front of it.
On Aug. 3, 2011, Pacherille received a cease-and-desist letter from Unified Court System Counsel John McConnell informing him that his visit to the judge’s home was “unacceptable” and a violation of state law.
“Be advised that you are unwelcome at Judge Burns’ home or upon his property, and that you are directed to refrain from any harassing, offensive or otherwise disruptive contact or communication with Judge Burns or any member of his family,” McConnell’s letter said. “In the event that you persist in such conduct, we will take all appropriate steps to bring about your prosecution to the fullest extent permitted under criminal and civil law.”
Two days after that, Burns swore out a complaint against Pacherille for second-degree harassment and secured an order of protection in Oneonta City Court. Burns said in a sworn deposition that Pacherille intended to “intimidate, harass and annoy” him. The judge added that he feared for himself and his family.
Pacherille said in his federal suit that the order of protection and the cease-and-desist letter effectively blocked him from exercising his constitutional right to protest Burns role in his son’s case.
Pacherille also argued that his advocacy for his son and criticism of Burns forced him to move out of Cooperstown and prompted the foreclosure on the home he was unable to sell because of the controversy.
He sought $3 million for that alleged loss and for the emotional and physical trauma he said he suffered because of his dispute with the judge.
Sharpe ruled that under 1996 congressional amendments to 42 U.S.C. §1983, a judge “is immune from all forms of suit” unless he acts either beyond his judicial capacity or “in the complete absence of all jurisdiction.”
While it was a legal matter involving Pacherille’s son, and not Pacherille himself, that prompted the confilct, Sharpe said the elder Pacherille had enough of an active role in the court matter to allow the judge to invoke judicial immunity.
“The principles underlying judicial immunity … are evident here: exposing Judge Burns to liability for his decision to file harassment charges in response to Pacherille’s activities, which were in response to Judge Burns’ judicial decisions in a case before him, would be inconsistent with the protection of the independence of his decision making,” Sharpe wrote, citing Huminski v. Corsones, 386 F.3d 116 (2d Cir. 2004).
In February 2012, the harassment charge against Pacherille was dismissed by Judge James Downey, who wrote that in the absence of overly threatening remarks or behavior toward Burns’ wife, “The benefit must go to the defendant that he was there for the legitimate purpose of solely verifying the address.”
Frank Policelli of Utica represented Pacherille Sr. in the case before Sharpe. He said Friday he had not yet discussed a possible appeal to the U.S. Court of Appeals for the Second Circuit with his client.
Policelli is also representing Pacherille Jr. in the Court of Appeals case. He said he had high hopes for the prospects of that appeal in light of what he said were the evolving attitudes toward juvenile offenders and the standards of responsibility that younger criminal offenders should be held to for criminal behavior.
Burns declined to comment on Sharpe’s ruling.
His attorney, Timothy Murphy of Hancock Estabrook in Syracuse, said that Sharpe “applied the law very well” in determining that Burns was shielded from the father’s claim.
Murphy said Burns did not seek to have the “coophallofshame.com” website taken down. The site remains online.
David Bookstaver, a spokesman for the Unified Court System, said there were 370 threats against the judiciary in New York in 2013, a total he said has been rising “substantially” over the past decade. Citing security concerns, he declined to say how often cease-and-desist letters are sent on behalf of judges but said it’s “only done under the most compelling circumstances.”