Non-violent felons can be stripped of their firearms

This is the golden age of gun litigation. In 2007, the Supreme Court said for the first time in the Heller case that the Second Amendment protects the right of private gun ownership, and in 2022, the Court held in the Bruen case that gun laws violate the Second Amendment unless comparable laws were in place when the amendment was adopted in 1791. Bruen makes it harder to regulate guns, but some gun-plaintiffs will still lose their cases. This is one such case.

The case is Zherka v. Bondi, issued on June 9, two years after oral argument Plaintiff was denied a gun permit because he is a convicted felon. He argues the Second Amendment is no barrier to gun ownership because he was not convicted of a violent felony. His conviction relates to making a false statement to a bank and signing a false income tax return. According to the Second Circuit (Lynch, Carney and Perez), he "defrauded federally insured banks of tens of millions of dollars and flouted the tax laws of this country to the tune of over one million dollars," landing him in jail for 37 months and three years of supervised release. He also paid $8.5 million in fines. That background description of plaintiff's life does not bode well for his case. Courts will emphasize these facts as a prelude to a defense victory.

In this case, the defendant is Pam Bondi, the attorney general. She is a defendant in name only. Zherka is really suing the United States, arguing that the federal statute cannot apply to him because he is not violent. This is an attractive argument. You do not want guns in the hands of violent people. Tax and other fraud is bad, but it's not street violence. Since this case was argued in 2023, before the current Justice Department took office, it was defended by the Biden Justice Department. I wonder what would have happened to this case if the current administration was defending this case.

As I mentioned, plaintiff can win the case if the historical tradition of firearm regulations renders the federal statute constitutional as to Zherka. This requires federal judges to serve as historians, giving new life to old treatises and law review articles. Judges are allowed to review laws post-dating 1791 in performing the "historical tradition" analysis. Over the years, Congress has made it illegal for felons to own a gun, not just for crimes of violence but for crimes punishable by one years' imprisonment. The Court notes that other federal circuits have held that the constitutional "founders likely would have considered disarmament permissible as punishment for a felony conviction since they passed laws instituting the death penalty and forfeiture of a perpetrator's entire estate as punishment for both nonviolent and violent felonies." The Court also notes that early American laws demonstrated that legislatures had broad authority to regulate firearms based on their status, i.e., political dissenters and racial minorities, suggesting that gun regulations back then did not turn on the propensity for violence, even if these early laws were morally reprehensible. Judge Lynch concludes as follows:

Because legislatures at or near the Founding had the authority to pass laws disarming large classes of people based on status alone, we conclude that the Second Amendment does not bar Congress from passing laws that disarm convicted felons, regardless of whether the crime of conviction is nonviolent.

We acknowledge and are sympathetic to the fact that felon-in-possession laws have contributed to the mass incarceration crisis and its associated racial inequalities.61 It may well be that there are sound policy reasons for restoring Section 925(c), or some similar regime, to effective operation. But that judgment is for Congress. The test that Bruen requires us to apply uses history as its guide, not policy concerns. Our task here is solely to follow the history.

This issue will reach the Supreme Court, maybe through this case. The Bruen framework is difficult for lower courts to apply, resulting in legal analysis that judges normally never engage in. This decision is loaded with historical discussion about old gun laws. All new Supreme Court rulings leave numerous unanswered questions. This case is one of them

Third Department holds student was denied a fair hearing in sexual assault case

Students who sue their universities for due process violations arising from in-house discipline have an uphill battle. These cases usually lose, as the courts find the university may generally comply with their disciplinary rules, even if they do not comply with their internal procedures to the letter. This plaintiff wins his case, however, demonstrating that the university denied him a fair shot at challenging a sexual assault allegation.

The case is Bibler v. State University at Albany, a Third Department ruling issued on June 5. A female student claimed that plaintiff had kissed and touched her against his will. Plaintiff said it was consensual. The university held a proceeding in response to the accuser's allegations, sustaining the charge and expelling plaintiff. Plaintiff wins the appeal, as he was denied a fair hearing.

These disciplinary hearings are not like trials. Courts hold that "there is a limited right to cross-examine witnesses generally," as that is not regarded as "an essential requirement of due process in school disciplinary hearings." However, cases hold, if the university does allow for cross-examination, or other procedural rights not compelled under state law, then the university must substantially comply with those procedures. In this case, the accuser did not testify (and therefore was not cross-examined) and the panel that ruled against plaintiff credited the accuser's unsworn written accusation against plaintiff. The panel thus denied plaintiff a fair hearing on the issue of whether the sexual encounters were consensual. Not only was plaintiff denied due process, but there was no substantial evidence to support the adverse findings against him.

Another problem with the hearing: the disciplinary panel did not apply the proper definition of "consent" under the state Eduction Law. Under the law, "consent" can be given by words or actions as long as the words or actions give "clear permission regarding willingness to engage in sexual activity." Silence or lack of resistance is not consent under the statute. Since the disciplinary panel said that only "verbal consent" could demonstrate the accuser's willingness to engage in sexual activity, it did not properly adhere to the "consent" definition under state law. This provides the plaintiff another avenue toward victory. SUNY is directed to reinstate plaintiff as a student. 

Eastern District of New York awards sexual harassment plaintiff $1.3 million in damages

A trial judge in the Eastern District of New York has sustained as hostile work environment verdict and ruled the plaintiff, who endured years of sexist flyers, comments, and gestures from supervisors, may recover $1 million in compensatory damages and $300,000 in punitive damages.

The case is Russo v. Tuttnauer USA Company Ltd, 21-cv-01720, 2025 WL 1604063 (E.D.N.Y. June 6, 2025). The case was tried in January 2025. Frederick K. Brewington, Esq., tried the case. Along with Scott Korenbaum, I handled the post-trial motions. The factual portion of the ruling reveals a locker-room styled workplace where supervisors left anonymous flyers in Russo's office depicting sexist and generally vulgar comments about Russo and other female coworkers. We also have some gestures/actions that are too provocative to describe here. Here is how the district court (Hon. Joan M. Azrack) handled the issues:

1. One defendant, Basile, argued that he could not be held liable under the New York State Human Rights Law because the harassment attributed to him predated the statute of limitations. While some of the harassment occurred prior to August 15, 2017, the jury was able to find that, in early 2018, Basile himself gave plaintiff an "anonymous" flyer that made a sexist reference to a roll of toilet paper shortly after she complained to Basile about the lack of toilet paper in the women's bathroom. The jury was able to assume that Basile was responsible for this flyer. Since this missive was similar in tone and message to the sexist flyers that pre- and post-dated the August 15, 2017 statute of limitations, the jury was able to find that Basile aided-and-abetted the harassment, and that his toilet paper flyer was part of a continuing violation. Basile also sent sexist emails to plaintiff prior to August 15, 2017. Also, before and after August 15, 2017, Basile, a supervisor, did not investigate plaintiff's complaints about the work environment or intervene when others in his presence made sexist comments about female employees; Basile himself made sexist comments, as well. All of this was part of the continuing violation, even if some of the harassment predated August 15, 2017.

2. Since the jury awarded $2.5 million for pain and suffering, defendants sought a remittitur. The district court agrees this verdict is excessive under New York law. In doing so, the court allocates all the damages under state law (less one dollar under Title VII) which does not cap such damages; that procedure is appropriate when the plaintiff sues under state and federal law. Judge Azrack finds this case is comparable to other "egregious" cases under the three-part matrix adopted by the Second Circuit. Cases that fall into that category can reach $1 million in pain and suffering, including Turley v. ISG Lackawanna, 774 F.3d 140 (2d Cir. 2014), where the plaintiff was awarded $1.4 million in 2025 dollars, and Zeno v. Pine Plains Central School District, 702 F.3d 655 (2d Cir. 2012), where the Title VI student-plaintiff recovered $1.56 million in damages (in 2025 dollars) for student-on-student bullying. We do not see too many $1 million employment discrimination verdicts sustained post-trial, but Russo's case joins that limited universe. The reason for this, the district court holds, is that Russo put on extensive evidence of her pain and suffering, including panic attacks and medication, and trial court put on a treating physician and lay corroborators on the extent of Russo's pain and suffering. 

3. As for punitive damages, the question here is whether Russo may reach the full $300,000 cap under Title VII. Without arguing that the evidence did not entitle the plaintiff to punitive damages, Defendants instead claimed the company was too small for that cap and that plaintiff may only recover $50,000. But, the trial court held, we have to include the hundreds of employees working for the parent company, based in Israel. The trial court applies a complicated analysis in determining whether the plaintiff may point to the employer's foreign workforce in reaching the $300,000 cap. The court also applies the "integrated enterprise" cases in determining whether to aggregate all the employees for this purpose. Since everyone in the company answered to the home office in Israel, and the parent company made the decision to terminate the plaintiff's employment, Tuttauer USA operated as the sales-arm to the parent company. The $300,000 cap, reserved for the largest employers, Title VII, applies here. 

Supreme Court rejects heightened prima facie framework for "majority" plaintiffs

On June 5, the Supreme Court issued Ames v. Ohio Dept. of YouthServices, which holds that Title VII did not authorize the Sixth Circuit’s requirement that “majority” plaintiffs satisfy a heightened pleading burden to assert a prima facie case of discrimination under Title VII. As is often the case, we also get an interesting and provocative concurrence from Justice Thomas, joined by Justice Gorsuch.

The plaintiff in Ames is a heterosexual woman who was denied a program administrator position. She claimed the defendant instead hired a gay man for the position. Ames claimed this personnel action violated Title VII’s prohibition against sexual orientation discrimination. The Sixth Circuit held the plaintiff did not plead a prima facie case because failed to assert “background circumstances to support the suspicion that the defendant is the unusual employer who discriminates against the majority.” The Supreme Court holds this heightened pleading burden is incorrect with a plain textual reading of the statute. Four other Circuits have similarly interpreted Title VII: the Seventh, Eighth, Tenth and D.C. Circuits. Writing for a unanimous Court, Justice Jackson states as follows:

 

● “As a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs. Rather, the provision makes it unlawful ‘to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.’” 

 

● “By establishing the same protections for every ‘individual’—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”

 

● Not only have prior Supreme Court rulings suggested that all Title VII classes have equal protection under the statute, but “[t]he ‘background circumstances’ rule also ignores our instruction to avoid inflexible applications of McDonnell Douglas’s first prong. This Court has repeatedly explained that the ‘precise requirements of a prima facie case can vary depending on the context and were never intended to be rigid, mechanized, or ritualistic.’” Yet, in violation of this principle, the “background circumstances” rule “uniformly subject[s] all majority-group plaintiffs to the same, highly specific evidentiary standard in every case.” (emphasis in original). As the Court “has long rejected such ‘inflexible formulation[s]’ of the prima facie standard in disparate-treatment cases,” it holds that all classes of people are held to the same test in asserting a prima facie case.

 

This ruling is the latest in a trend at the Supreme Court, at least in the Title VII context, to dispense with complex, non-textual analyses in favor of a "plain reading" of the statute. We saw this in Bostock v. Clayton County (2020), which held that Title VII prohibits discrimination on the basis of sexual orientation and transgender status. The analysis in Bostock applied the plain terms of the statute and said that this discrimination is a form of sex discrimination. Then, in 2024, the Court held in Muldrow v. City of St. Louis, that "adverse actions" under Title VII needn't be "material" or "significant" to violate the statute, as the statute does not support such a legal standard. 

Justices Thomas and Gorsuch concur in the Ames ruling. Thomas writes that the prima facie rule rejected in this case was the product of "improper judicial lawmaking" and "lacks any basis in the text of Title VII." He goes on to highlight the adverse consequences of the "background circumstances" rule, stating that it forced courts to decide whether the plaintiff is a member of a majority or minority group, as some plaintiffs live in majority Black cities and others are mixed-race. In a footnote, Thomas further states that the "background circumstances" rule improperly assumes that discrimination against majority groups is sufficiently "unusual" to warrant a different prima facie test, as "American employers have long been 'obsessed' with 'diversity, equity, and inclusion' initiatives and affirmative action plans," placing them under pressure "to discriminate in favor of members of so-called minority groups."

 

Perhaps more interesting, the concurrence provides a lengthy attack on the familiar McDonnell-Douglas burden shifting model that courts have been using since 1973 to resolve employment discrimination cases. If you've read this far, you know that burden-shifting scheme: plaintiff must show a prima facie case and then attack the employer's articulated justification for the adverse action as pretextual." Thomas argues this judge-made model is confusing and does not work, in part because it does not square with summary judgment principles. If the Court were to overturn the McDonnell-Douglas model, that would be a major event in the lives of employment discrimination lawyers. The concurrence does not offer an alternative evidentiary model.

Court of Appeals sustains defense verdict in excessive force case

This case highlights the unpleasant realities when you lose your case at trial and take up an appeal. Most verdicts are affirmed. Some are reversed, that is true. But the standard of review on appeal gives the jury (or the trial judge following a bench trial) the benefit of the doubt. In this excessive force claim against the City of Mount Vernon, the plaintiff lost at trial and proceeded to the Second Circuit. The Court of Appeals affirms.

The case is Ketcham v. City of Mount Vernon, a summary order issued on May 27. This was a bench trial. Plaintiff alleged the police officers used excessive force against him. If true, that would violate the Constitution. The seminal case in this are is Graham v. Connor, 490 U.S. 386 (1989), which requires courts and juries to consider the following in assessing these cases: the severity of the crime at issue, whether the suspect posed an immediate threat to anyone's safety, and whether he was actively resisting arrest. The Fourth Amendment does not cite any of these factors; the Supreme Court came up with this balancing test to facilitate application of the Fourth Amendment.

This case last reached the Court of Appeals in 2021, when the Second Circuit reinstated plaintiff's case after the trial court dismissed it on summary judgment. The Court four years ago said the evidence did permit a verdict in plaintiff's favor, necessitating a trial. But just because you survive a summary judgment motion does not mean you will win the trial. In that ruling, the Court of Appeals noted that both sides had dramatically different interpretations of the evidence. This is why we have trials.

Excessive force claims are often fact-intensive. If the officer uses force, he will claim he had no choice because the suspect was dangerous or running away or the force was needed to protect the officers. Here, plaintiff says that while "he may have actively resisted arrest in the technical sense, such conduct was justified given that the officers never identified themselves as police officer, were driving an unmarked car, and heard Ketcham screaming for someone to call the police during the ensuing altercation" Under these circumstances, plaintiff says, a reasonable officer would not have used force against him.

This argument fails. The Court of Appeals (Wesley, Sullivan and Park) notes the officers had an arrest warrant, and they found a man (Ketcham) who resembled the wanted individual. The decision is not clear about this, but the officers may have been looking for someone else. The officers saw plaintiff walking on the sidewalk, so the plainclothed officers approached him, though plaintiff saw that one of them was wearing a badge or shield around his neck. Plaintiff adopted a "defensive posture" as the officers approached and would not identify himself, instead making "challenging" responses to the officer's inquiries. Plaintiff then resisted when the officers approached, twisting his torso, moving his head, and "screaming at the top of his lungs." It took the officers several minutes to place him into handcuffs. Then plaintiff placed his leg in the doorframe as the officers tried to get him into the police car. 

On this record, viewing the evidence most favorably to the officers (the standard of review on appeal from a verdict), the trial court did not improperly find in favor of the officers. The Court of Appeals issues a similar holding in finding the trial court properly rejected Ketcham's argument that the handcuffs were too tight. 

Sex discrimination case is reinstated

Here is a sex discrimination case that applies the general rules guiding motions to dismiss these cases. The Court of Appeals reinstates the lawsuit thanks to the plaintiff's allegations that two superiors told her that the decisionmaker will not hire women for a law enforcement position.

The case is Fay v. Barbera, a summary order issued on June 2. Plaintiff was a part-time officer with the Rockland County Sheriff's Department and wanted a promotion to a full-time patrol officer position. When plaintiff inquired about the promotion, two superiors with in the Sheriff's Department, one of who was married to the defendant Undersheriff Mary Barbera, said that Barbara does not appoint women to patrol officer positions and that plaintiff was "too pretty" for the job. When plaintiff asked Barbera what she had to do to be appointed, Barbera said she was under no obligation to interview plaintiff and that she selected a male candidate who, unlike plaintiff, had been inactive in the unit prior to his appointment as Deputy Sheriff.

This case was dismissed on a Rule 12 motion. The district court said that plaintiff did not plead a plausible sex discrimination claim, but the Court of Appeals (Lee, Merriam, and Kahn) reinstates the case, holding that we can in fact infer that Barbera was the decisionmaker for this position and that the adverse decision was based on sex discrimination because of what the two superiors had said (Barbara does not hire women for patrol officer positions and plaintiff was "too pretty" for the job) and then what Barbara said about appointing the less-qualifed male officer. 

Under Second Circuit precedent, including Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), the plaintiff does not have to plead a prima facie case of employment discrimination, only enough facts to suggest that discrimination was the motive. That is a low bar for plaintiffs. This is not the only case where the Court of Appeals has reversed a Rule 12 dismissal order on facts like this. It will not be the last. What this case tells us, at least as to the "admissions" from the two supervisors, is that the plaintiff can proceed to discovery on allegations that those close to the decisionmaker may be in a position to make comments that bind the employer in a discrimination case.

Supreme Court will not hear student speech case over t-shirt promoting only "two genders"

The Supreme Court has declined to take up an appeal involving student speech relating to the the culture wars of the Trump-era, relating to LGBTQ and gender identity. Strong dissents from Justices Thomas and Alito.

The case is L.M. v. Town of Middleborough, dated May 27. The middle school student in this case wore a shirt to school stating there are only two genders. The school made him change his clothing on the basis that the shirt was offensive to members of the LGBTQ population at the school and might disrupt the educational environment. Plaintiff argued this was viewpoint discrimination in violation of the First Amendment, as other students routinely expressed contrary opinions during school hours.

Normally, viewpoint discrimination is struck down in the federal courts., even in limited public forums. But the First Circuit said in this case that the seminal student speech precedent, Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969), does not recognize that viewpoint discrimination in the educational context violates the First Amendment. That ends the case. 

Tinker is a famous precedent, one of the high points of the Warren Court, which held that students were allowed to wear black armbands to protest the Vietnam War. I had a law school classmate who went to school in Des Moines  and he emphasized in one of our constitutional law classes that, in Iowa during the 1960's, protesting the war in this manner was socially unacceptable. He could not emphasize this point strongly enough. All hell probably broke loose when the students in Tinker wore those armbands. Anti-war activism may have been fashionable in New York City or San Francisco back then, but Iowa was not New York City or San Francisco. The decision in Tinker was written by Justice Fortas, one of the great defenders of civil liberties who eventually resigned from the Court over financial conflict-of-interest allegations. Those were the days when allegations like that could ruin your career in public office.

Justice Alito objects, arguing that language in Tinker does in fact hold that the First Amendment does not tolerate viewpoint discrimination in the grade school setting, and that the two-part test that the First Circuit formulated in resolving cases like this -- which takes into account whether the speech would demean "characteristics of personal identity" and potentially "poison the educational atmosphere" -- finds no place in the Supreme Court's jurisprudence. Alito writes that the Court should take up this case, for these reasons:

First, we should reaffirm the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech.  Tinker itself made that clear. See 393 U.S. at 511 (“Clearly, the prohibition of expression of one particular opinion . . . is not constitutionally permissible”). Curiously, however, the First Circuit declined to follow Tinker in this regard, instead cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates. By limiting the application of our viewpoint-discrimination cases, the decision below robs a great many students of that core First Amendment protection.

Second, we  should also grant review to determine whether the First Circuit properly understood the rule adopted in Tinker regarding the suppression of student speech on the ground that it presents a risk of material disruption. We have described this standard as “demanding.” But the First Circuit fashioned a rule that is anything but. The lower courts are divided on how to apply Tinker’s “material disruption” standard in a context like this one,1 and the decision below underscores the pressing need for clarification.

Justice Thomas signs onto Alito's dissent from the denial of certiorari, But Thomas also reminds the reader that he has previously said that Tinker was wrongfully decided and the First Amendment does not recognize that grade-school students have any free speech rights at all. So far, no one else on the Supreme Court has agreed with this proposition.