R. Anthony Rupp, III, Plaintiff-Appellant v. City of Buffalo, Daniel Darenda*, individually and in his capacity as Police Commissioner of the Buffalo Police Department, Todd C. McAlister, individually and in his capacity as a Buffalo Police Officer, Nicholas Parisi, individually and in his capacity as a Buffalo Police Officer, and Jeffrey Giallella, individually and in his capacity as a Buffalo Police Lieutenant, Defendants-Appellees** Appeal by plaintiff from so much of a judgment of the United States District Court for the Western District of New York, William M. Skretny, Judge, as dismissed his complaint against defendants City of Buffalo and/or certain members of its police department principally for malicious prosecution, First Amendment retaliation, and false arrest on a charge of noise-ordinance violation for crudely shouting to a policeman — who was driving on a city street in the dark without headlights both before and after having to stop short of hitting two crossing pedestrians — to turn on his headlights. The district court granted summary judgment in favor of defendants, holding principally that plaintiff’s shout was not protected by the First Amendment because he did not know he was addressing a police officer, and that all of his claims were barred by the existence of probable cause — or at least arguable probable cause sufficient to give the officers qualified immunity — for plaintiff’s arrest. See Rupp v. City of Buffalo, 2021 WL 1169182, at *8, *11-*12 (W.D.N.Y. Mar. 29, 2021). Plaintiff challenges those rulings, arguing principally that the court erred in concluding that he was required to show an intent to criticize a police officer in order for his speech to be protected under the First Amendment, and in ruling that there was probable cause to believe that his shout constituted noise that was unreasonable under the City’s noise ordinance; he also contends that, on the undisputed facts, summary judgment should have been entered in his favor on his principal claims against the officer who operated the unlit vehicle. We conclude that with the record viewed in the light most favorable to the side opposing summary judgment, neither movant was entitled to summary judgment on the above claims, as there were genuine issues of fact concerning the existence of probable cause; that the district court erred in granting summary judgment to defendants on those claims by resolving fact issues in their favor; and that the court erred in ruling, on the present record, that plaintiff’s speech was not subject to First Amendment protection. To the extent that plaintiff also claimed that the City’s noise ordinance was unconstitutional as applied to him, we conclude that that claim was properly dismissed because, as plaintiff was found not to have violated the ordinance, it was not in fact applied to him. Any cognizable aspect of this claim was essentially duplicative of his claims of false arrest, malicious prosecution, or First Amendment retaliation, which we reinstate. Affirmed in part, vacated in part, and remanded. AMALYA KEARSE, C.J. Plaintiff R. Anthony Rupp, III, appeals from so much of a judgment of the United States District Court for the Western District of New York, William M. Skretny, Judge, as dismissed his complaint against defendants City of Buffalo (“City” or “Buffalo”) and/or certain members of its police department principally for malicious prosecution, First Amendment retaliation, and false arrest on a charge of unreasonable noise in violation of the Buffalo City Code noise ordinance (or “City Code”) for crudely shouting to a policeman — who was driving on a city street in the dark without headlights both before and after having to stop short of hitting two crossing pedestrians — to turn on his headlights. The district court granted summary judgment in favor of defendants, ruling principally that plaintiff’s shout was not protected by the First Amendment because he did not know he was addressing a police officer, and that all of his claims were barred by the existence of probable cause — or at least arguable probable cause sufficient to give the officers qualified immunity — for his arrest. Rupp challenges those rulings, arguing principally that the court erred in concluding that he was required to know that he was criticizing a police officer in order for his speech to be protected under the First Amendment, and in ruling that there was probable cause to believe his shout constituted noise that was unreasonable under the Buffalo noise ordinance; he also contends that, on the undisputed facts, summary judgment should have been entered in his favor on his principal claims against the officer who operated the unlit vehicle. For the reasons that follow, we conclude that, with the record viewed in the light most favorable to the side opposing summary judgment, neither moving side was entitled to summary judgment, as there were genuine issues of fact concerning the reasonableness of Rupp’s shout; that the district court erred in granting summary judgment to defendants by resolving fact issues in their favor; and that the court erred in ruling, on the present record, that plaintiff’s speech was not subject to First Amendment protection. To the extent that Rupp also complained that the City’s noise ordinance was unconstitutional as applied to him, we conclude that that claim was properly dismissed because, as he was found not to have violated the ordinance, the ordinance was not in fact applied to him. Any cognizable aspect of this claim was essentially duplicative of his claims of false arrest, malicious prosecution, or First Amendment retaliation, which we reinstate. I. BACKGROUND Rupp is an attorney residing in or near Buffalo. The principal individual defendants are Todd C. McAlister and Nicholas Parisi, who at the relevant time, were officers of the Buffalo Police Department (“BPD”), and Jeffrey Giallella, a BPD lieutenant. The case concerns a December 2016 encounter between Rupp and McAlister in Buffalo that ended in the issuance of a noise-ordinance-violation summons to Rupp. A. The Events Most, but not all, of the relevant facts are not in dispute, as gleaned principally from the parties’ respective admissions or undisputed assertions as to material facts on the motions for summary judgment (“Undisputed Local Rule 56(a) Statements” (or “Undisputed “)). 1. The Undisputed Facts At approximately 8:30 p.m. on December 1, 2016, Rupp and his wife, near 291 Seneca Street, after leaving Chef’s Restaurant, began to cross the street to get to Chef’s parking lot. (Undisputed 1.) “As the couple crossed to the middle of the street, plaintiff noticed a vehicle approaching without its headlights on.” (Defendants’ brief on appeal at 1 (internal appendix citations omitted).) “McAlister…was driving the vehicle on Seneca Street towards Rupp and his wife in the dark with no headlights activated or running lights illuminated.” (Undisputed 4.) Rupp and his wife quickly made their way across the street. (See Defendants’ brief on appeal at 2.) After Rupp and his wife safely crossed, “two women began to cross the street and stepped directly into the path of the police vehicle” (Defendants’ brief on appeal at 2 (internal appendix citations omitted)). McAlister stopped without hitting the women (see id.) — although as described in Part I.A.2. below, there may be different views as to how close he came. McAlister “stopped and flashed his headlights as a signal to the women that they could safely cross.” (Id.; Undisputed 7.) And “[a]fter the women safely crossed, the vehicle’s lights then went dark again as McAlister proceeded.” (Defendants’ brief on appeal at 2 (internal appendix citations omitted (emphasis added)); see Affidavit of R. Anthony Rupp III dated February 28, 2019 (“Rupp Aff.”), 6 (after “the operator of the vehicle…flashed either his headlights or high-beams at the pedestrians” he “then turned the car lights back off.”).) After McAlister had avoided hitting the pedestrians, Rupp called out “turn your lights on, asshole.” (Undisputed 8.) Upon hearing Rupp’s shout, McAlister immediately pulled into the Chef’s parking lot where Rupp and his wife were walking to their car. (Undisputed 10.) Rupp then, “for the first time,…realized” that the “vehicle was a Buffalo Police Department” vehicle. (Rupp Aff. 10.) McAlister “rolled down the front passenger window, leaned across the console, and said, ‘You know you can be arrested for that.’” (Id. 11; see Undisputed 11.) Rupp, in response, told McAlister that he should not be driving down a city street after dark without his headlights activated; he “reminded defendant McAlister that [McAlister] had almost cause[d] a pedestrian accident.” (Undisputed 12.) McAlister then “got out of his vehicle and told Rupp he was detained.” (Undisputed 13.) When McAlister asked Rupp for identification, Rupp provided his government-issued attorney identification card which bore his photograph. McAlister then demanded Rupp’s driver’s license, which Rupp eventually provided, following a repeated request and the arrival of Officer Parisi. (See Undisputed
14, 20-21.) Eventually Lieutenant Giallella also arrived. (See Undisputed 22.) After Parisi arrived, McAlister admitted that he had been driving the vehicle without using headlights. (See Undisputed 17.) Rupp repeatedly argued to McAlister, Parisi, and Giallella, that McAlister had violated the New York Vehicle and Traffic Law (“VTL”) by driving at night without headlights. Rupp insisted that McAlister was not exempt from complying with the VTL just because he was a police officer; he asked Parisi and Giallella to cite McAlister for that violation; both refused. (See, e.g., Undisputed
