Friday, January 20, 2017

Free speech retaliation case dies on the vine

Public employees who sue their employers for retaliation arising from their free speech face a number of hurdles. The first hurdle is the plaintiff has to show he spoke as a citizen on a matter of public concern. Assuming the police can establish that, he must show his termination/demotion/whatever was caused by someone's negative reaction to the speech. This case is a causation case.

The case is Birch v. City of New York, a summary order decided on January 12. The public concern component of a First Amendment retaliation case is typically the death knell, ever since the Supreme Court said in the Garcetti case (2006) that it's not free speech if the utterances are part of the plaintiff's normal job responsibilities. But in this case, the plaintiff apparently did engage in free speech in complaining about police department quota policies. The issue here is whether he can prove the retaliatory acts were caused by his free speech. He cannot prove that.

Without direct evidence that the speech caused the adverse action, the plaintiff has to rely on circumstantial evidence. One way to do that is by showing the adverse action closely followed the free speech. Revenge may be a dish best served cold, but the courts do not see it that way. In this case, the gap is too long. Plaintiff spoke out in December 2011 and February 2014. The retaliation took place 17 months later. That will not cut it. Three or four months might do it, but not 17 months. Case dismissed.

Thursday, January 19, 2017

Lawyer-plaintiff cannot sue the police

The plaintiff in this case is a lawyer who sued the police for malicious prosecution, selective enforcement and excessive force. He loses each of those claims in the Court of Appeals.

The case is Tyk v. Surat, a summary order decided on January 12. Tyk was arrested for reckless endangerment, harassment and disorderly conduct. He was acquitted, prompting this lawsuit. This is how the district court summarizes the facts:

Plaintiff admits that he illegally parked his car outside of Maimonides Medical Center (“MMC”) in violation of a New York City ordinance. He returned to find that his car was gone. MMC security personnel informed plaintiff that his car had been towed. An argument ensued and Alexander D’Atri, director of security at MMC, directed MMC security officers to handcuff plaintiff.

New York City Police Officer Eric Surat responded to the scene and spoke with MMC security personnel Fernandez and Castillo as well as D’Atri. Officer Surat observed a red marking on D’Atri’s nose. D’Atri and the security officers reported to Officer Surat that plaintiff became upset and violent after learning that his car had been towed, and that plaintiff struck D’Atri in the face with his hand while holding his cellphone. Officer Surat arrested plaintiff. Plaintiff alleges that Officer Surat handcuffed him too tightly. Plaintiff was issued a desk appearance ticket.

A couple of months later, Assistant District Attorney Roger Yu interviewed D’Atri regarding the altercation at MMC. Based on that interview and the statements made therein by D’Atri, ADA Yu prepared a criminal complaint, which D’Atri signed. D’Atri alleged that plaintiff struck D’Atri on the bridge of his nose with his cellphone, and that D’Atri was given medical treatment for an abrasion.

The District Attorney charged plaintiff with multiple crimes including assault in the third degree, reckless endangerment in the second degree, menacing, trespass, and harassment in the second degree. The case went to trial, and plaintiff was acquitted.
Acquittals mean the prosecution cannot prove your guilt beyond a reasonable doubt, but it does not mean you can bring a lawsuit. No reasonable doubt does not mean no probable cause.The police had probable cause to arrest Tyk because he interviewed three hospital workers about the incident and saw that one of them had red marks on the nose. That gives you probable cause to arrest for reckless endangerment, harassment and disorderly conduct. The police also learned that Tyk was told to leave the hospital property, which supports the trespass arrest. While Tyk says the police could have done a better job in the investigation -- which would have proven Tyk's innocence -- the police are not required to conduct a full investigation before arresting someone. 

Wednesday, January 18, 2017

Supremes grant police officer qualified immunity in shooting case

Qualified immunity protects governmental employees when someone sues them for civil rights violations. Johnny Citizen does not enjoy this immunity. But police officers do. The Supreme Court routinely takes up these cases. Lately, the Court has been ruling in favor of the police in excessive force cases.

The case is White v. Pauly, decided by the Supreme Court on January 9. Under the qualified immunity test, we ask two questions: (1) did the police officer violate the plaintiff's rights; and (2) were those rights clearly-established at the time of the violation. This standard allows the defendant to win unless a court somewhere has found that a case with similar facts violated the Constitution. Whether a case was directly on point is in the eye of the beholder. In this case, the Supreme Court beholds that the defendant police officer did not violate any clearly-established rights when he showed up late to a dispute and shot and killed an armed occupant in a house without giving a warning.

After two people reported Pauly's crazy driving, they followed him as he drove away. He then drove to his house, which he shared with his brother. Officer Truesdale, meanwhile, responded to the 911 call and determined with two other officers there was no probable cause to arrest Pauly. These officers then went to Pauley's house to ask him questions. When Pauly and his brother realized the police were outside, they armed themselves, unaware it was the police outside. One of the Pauly brothers told the police they had guns. Meanwhile, Officer White came upon the scene and arrived when he heard the brother shout out they had guns. Daniel Pauly fired his gun while screaming loudly. Samuel Pauly opened the window and pointed his gun at Officer White. One officer shot at Samuel but missed. A few seconds later, White shot and killed Samuel.

While the Court of Appeals said a reasonable police officer would know that their conduct would cause Samuel to defend his home and that White should have known a warning was necessary before pulling the trigger. The Supreme Court disagrees and rules in White's favor. There is no precedent quite like this one, the Court says, which means the law was not clearly-established. This case is unique because of White's late arrival on the scene during an ongoing police action. "No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or his fellow officers in instances like the one White confronted here."

Tuesday, January 17, 2017

Courtroom closure during criminal trial was legal

Habeas corpus petitions are routinely denied by the federal courts because Congress in 1996 told them to defer to the constitutional judgments reached by the state appellate courts. This means the New York Appellate Divisions and the State Court of Appeals can get it wrong, but unless they get it unreasonably wrong, the conviction stands and the defendant remains in jail.

The case is Moss v. Colvin, issued on January 9. There are many ways to upset a criminal conviction. One way is to argue that that the trial court closed the courtroom during the criminal trial without a good reason. That's what Moss argues here. He was arrested for selling drugs. An undercover officer nailed him. Of course, undercover had to testify in court against Moss. But since undercover witnesses cannot show their faces, trial judges sometimes close the courtroom during their testimony. Since the State Court of Appeals upheld the conviction, the Second Circuit is his last resort.

Here is the test for determining whether the criminal court violated the Constitution in closing the courtroom:

(1) “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced” if the courtroom is not closed, (2) “the closure must be no broader than necessary to protect that interest,” (3) “the trial court must consider reasonable alternatives to closing the proceeding,” and (4) the trial court “must make findings adequate to support the closure.”

The Second Circuit (Katzmann, Carney and Wesley) says the state courts got it right in finding the government had an excellent reason for closing the courtroom. The undercover officer continued to work in the area of the arrest (so that people attending the trial would know who he was), he had received numerous threats in the past, and he had encountered suspects in the courthouse. He also took steps to protect his identity when he entered courthouses. In finding the courtroom closure did not violate the Sixth Amendment right to a public trial, the New York Court of Appeals did not unreasonably apply the Constitution,

Tuesday, January 3, 2017

Some Privileges & Immunities action for y'all

The Privileges and Immunities Clause of the U.S. Constitution does not get much attention these days, but you can challenge state laws and regulations under that Clause if you are an out-of-stater and the state treats in-state people more favorably than you. That a simplified version of the P&I Clause but the point is that it ensures "the citizens of the United States [are] one people, by placing the citizens of each State upon the same footing with citizens of other States," even if people in those other states elect someone that we despise to the White House.

The case is Clement v. Durban, an Appellate Division ruling from December 21. Plaintiff is a personal injury victim. Her case was dismissed in State Supreme Court, so she wanted to take up an appeal. Since plaintiff moved to the State of Georgia while the lawsuit was pending, state law requires her to post a bond in case she loses the appeal and has to pay the defendant's costs. Is this legal? What about the P&I Clause, you know, the one that says we're on the same page, even if we live somewhere else?

The out-of-state bond requirement is legal. The Second Department summarizes how the P&I Clause works, but it cautions that strict equality is not required.

"This does not mean . . . that state citizenship or residency may never be used by a State to distinguish among persons.'" " Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do.'" "Rather, . . . the Privileges and Immunities Clause protects only those privileges and immunities that are fundamental.'"
New York imposes this out-of-state bond requirement to ensure that "if he loses the case he will not return home and leave defendant with a costs judgment that can be enforced only in plaintiff's home state." The rule protects the defendant "from frivolous suits and is assured that, if successful, he will be able to recover costs from the plaintiff."

While out-of-staters have a fundamental right under the P&I Clause to sue in New York, the Supreme Court said years ago that the Clause is satisfied "if the nonresident is given access to the courts of the state upon terms which in themselves are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically and precisely the same in extent as those accorded to resident citizens." This rule of law allows New York to require the Georgia plaintiff to post a bond to ensure the prevailing defendant will recover any costs expended on appeal.

The challenged statutory provisions do not deprive noncitizens of New York of reasonable and adequate access to New York courts. The requirement that a nonresident plaintiff who has not been granted permission to proceed as a poor person post the modest sum of $500 as security for costs is reasonable to deter frivolous or harassing lawsuits and to prevent a defendant from having to resort to a foreign jurisdiction to enforce a costs judgment. while the U.S. Supreme Court has never considered a direct challenge to a state statute requiring nonresident plaintiffs to post security for costs, it has cited such a requirement as an example of one that would not run afoul of the Privileges and Immunities Clause.

Friday, December 30, 2016

Ferrari's Farraari

This due process case is interesting because the Court of Appeals vacated a plaintiff's verdict and entered judgment for the County of Suffolk. The case is also interesting because the plaintiff's last name is Ferrari, and the case stems from the County's seizure of his Ferrari after Mr. Ferrari drove wildly while under the influence.

The case is Ferrari v. County of Suffolk, decided on December 27. Suffolk County had a law that allowed the government to seize your car if you violated the drunk driving laws. After the County seized the car, there was a post-seizure hearing intended to comply with the Due Process Clause, which restricts when the government can seize your property. The district court granted the County's motion for summary judgment, ruling that plaintiff had established the County routinely fails to prove that it needs to retain the cars even though the County establishes at these post-seizure hearings that the vehicle was used as the instrumentality of a serious offense, as well as evidence that the driver had previously been convicted of car-related offenses. The County also usually proves at these hearings that the driver poses a danger to the public with his car. The district court also ruled that the County did not address alternative measures to ease the hardship on the driver. Following this ruling, a jury awarded Ferrari $95,000 in damages to compensate for the seizure of his car. (News reports at the time said the plaintiff bears no family relation to the Ferrari company).

The Court of Appeals (Livingston, Leval and Carney) reverses and says Ferrari did not deserve to win the case and that the County is entitled to judgment as a matter of law. The Due Process Clause is basically a fairness clause. It says very little about what the government must do to protect you from unwarranted seizures of property or liberty. The rules for this derive from case law, as judges adopt multi-part tests to weigh the interests of citizens and the competing interests of the government. This case raises a new issue for the Court of Appeals, which poses the question this way:

when, at a retention hearing, Suffolk County presents evidence that a driver such as Ferrari has a history of intoxicated or reckless driving (evidence that serves to make out a prima facia case that retention pendente lite is necessary to protect the County’s financial interest and its interest in protecting the public) may the County, consistent with the Due Process Clause, then shift the burden of going forward onto the owner‐driver to point to a specific alternative measure that he is willing and able to sustain that might satisfy the County’s interests, and to demonstrate that such alternative measures would be feasible for him?
The answer to this question is Yes. Suffolk County's procedure is legal. The County may, after putting on prima facie evidence that it needs to immediately seize the car, require the driver to prove other feasible ways to protect the government's interests. In weighing the competing interests, the Court says that (1) the driver ma have an important interest in retaining the use of his car right after the arrest, but (2) plaintiff's interest in forcing the County disprove the feasibility of alternative measures to seizing the car is weak. "A requirement that Suffolk bear the initial burden of proving the infeasibility of alternative measures as part of its prima facia case does not greatly add to the protection already afforded such owners pursuant to Suffolk’s existing procedures." Also, the County's practice of requiring the vehicle owners to articulate an alternative measure does not have a material effect on the owner's interests because he already knows from County prior to the hearing that the availability of alternative measures will be discussed at the hearing.

You get the point. Each side must be given a fair shake at these hearings. Under the Due Process Clause, it does not take much for the government to give you a fair shake. Most of the Due Process Clause cases that I have seen over the years do not put the government through the ringer in this regard. Some fairness, even if that fairness is not compelling, is all it takes.   

Thursday, December 29, 2016

Employment retaliation 101

This case provides a good introduction into how employment discrimination cases are decided in the Second Circuit. The plaintiff alleges retaliation for speaking out on financial abuses, and brings this action under the Sarbanes-Oxley Act, which courts resolve under traditional employment retaliation standards.

The case is Yang v. Navigators Group, a summary order decided on December 22. The district court threw out Yang's case on summary judgment. The Court of Appeals (Leval, Sack and Raggi) revives the claim, and it heads to trial. Here is how the district court got it wrong:

1. The district court said Yang did not engage in protected activity when she communicated concerns about some investment risk models because she only offered her own deposition and affidavit testimony about her protected activity. But the Court of Appeals reminds us that this "self-serving" testimony is enough to create an issue of fact for trial. We do not need corroborating evidence if the plaintiff testifies from her personal knowledge that something happened. For more on this concept, see Danzer v. Norden Sys. Inc., 151 F.3d 50, 57 (2d Cir. 1998) and Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 80 (2d Cir. 2016). This is an important pointt in discrimination/retaliation cases, as plaintiffs often find they cannot find corroborating witnesses, most of whom will disappear once the lawsuit is filed because they do not want to suffer their own retaliation for assisting the plaintiff-traitor.

2. The district court also said that plaintiff cannot prove she was fired because of her outspoken objections. She was fired two weeks after plaintiff opened her mouth. That is normally close enough to draw a retaliatory inference, but the district court said there was an intervening factor that cut off the causal connection: she gave a disorganized and incoherent presentation to defendant's senior executive team. Intervening factors can in fact kill off a retaliatory inference, and defense lawyers are always looking for this kind of evidence, but the parties here dispute what happened at that meeting. The jury has to resolve this evidentiary conflict, not the district court. As an aside, the district court relied on another district court case in support of its holding that the intervening cause entitled management to summary judgment. But that district court ruling has since been overturned by the Second Circuit, Sharkey v. JP Morgan Chase, 2016 WL 4820997 (2d Cir. Sept. 12, 2016).

3. Plaintiff also wins this appeal because defendant offered conflicting reasons for her termination. Those conflicting reasons suggest defendant was dissembling to shield a retaliatory motive. While defendant cites generalized performance concerns to justify plaintiff's termination, she was never told of these concerns during her employment. Rather, plaintiff says she was only told she was fired because she did not fit into defendant's "culture" and lacked a "hands on" approach to her position. This is an interesting holding. Usually, the "inconsistent explanations" theory of retaliatory or discriminatory intent involves different reasons offered by defendant once the case proceeds to litigation. In this case, we look at what management told plaintiff prior to her termination and compare it with defendant's explanations post-lawsuit.