judgment on the basis of qualified immunity and thus may prevail if he had “arguable” probable cause to charge Jaegly with those crimes. See Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). For the reasons stated in our accompanying opinion with respect to false arrest, we affirm the district court’s ruling that Couch had probable cause to initiate a criminal prosecution against Jaegly for harassment in the second degree. See Opinion at 6. It is a close question, however, whether Couch had probable cause to initiate a criminal prosecution against Jaegly for criminal contempt in the first degree under New York law, see Opinion at 5-6, but we need not decide whether Couch had probable cause, see Ehrlich v. Town of Glastonbury, 348 F.3d 48, 59-60 (2d Cir.2003) (<HOLDING>). In light of the protective order that
recognizing that the determination is an equitable one holding that courts may decline to make a constitutional determination at the first stage of the qualified immunity inquiry where that determination would be based on an interpretation of uncertain state law holding that at this stage of the proceedings review is limited to a determination of whether the circuit court afforded due process and whether the court observed the essential requirements of law holding that a court of appeals should review de novo a district courts determination of state law recognizing that a state courts determination is not an unreasonable application of law merely because it is erroneous