Supreme Court reminds us that police-shooting cases must be reviewed holistically

 

The Supreme Court has issued a plaintiff-friendly ruling on the excessive use of police force, holding that courts have to consider the totality of the circumstances and not a narrow time window in determining whether a police officer had an objective basis to shoot someone in the course of a traffic stop or arrest.

The case is Barnes v. Felix, issued on May 15. The ruling is 9-0, but four Justices issue a concurrence that reminds us how difficult it can be for officers who make traffic stops.

Here is the sequence of events. Officer Felix pulled over Barnes because he had outstanding toll violations. Barnes rummage around the car's interior for his papers, and the officer smelled marijuana in the car. At Felix's direction, Barnes opened the trunk from his seat, and then the officer ordered Barnes to exit the car. At this point, Barnes started up the car again and began to drive. As the car began to move forward, Felix jumped onto the doorsill and fired his gun at Barnes, killing him. On these facts, the Fifth Circuit held, under its "moment of threat" doctrine guiding excessive force claims, Barnes' estate could not sue Felix because, at the precise moment that Felix pulled the trigger, objectively speaking, Felix could have reasonably believed his life was in danger. 

The Supreme Court reverses, revising its precedents governing the excessive use of police force. In Graham v. Connor, 490 U.S. 386 (1985), the Supreme Court held that courts must evaluate these cases under the "totality of the circumstances" test in determining if the use of force was objectively reasonable under the Fourth Amendment. The problem with the Fifth Circuit's "moment of threat" analysis is that it views the interaction from a narrow perspective -- the moments leading up to the use of force -- without considering what took place prior to that. The moment of threat test, especially here, where the lower courts focused on the few seconds prior to the police shooting, conflicts with the totality of the evidence test, the Supreme Court holds.

The case returns to the Fifth Circuit to re-evaluate the case under the totality of the circumstances. Justice Kagan writes, 

In looking at only the two seconds before the shot, they excluded from view any actions of the officer that allegedly created the danger necessitating deadly force. So, to use the obvious example, the courts below did not address the relevance, if any, of Felix stepping onto the doorsill of Barnes’s car. And because they never considered that issue, it was not the basis of the petition for certiorari. The question presented to us was one of timing alone: whether to look only at the encounter’s final two seconds, or also to consider earlier events serving to put those seconds in context. 

What it all means is that, under the Fifth Circuit's narrow focus, that court may have had a basis to rule in the officer's favor, as Barnes was trying to drive away when Felix was in the doorsill; shooting Barnes may have been necessary to protect Felix. But we cannot look at the case so narrowly. It may be that, in the minute or so prior to the shooting, Felix knew he was not facing any risk of serious harm that would justify the shooting. The lower court may instead find, on remand, that Felix knew, prior to stepping into the doorsill, there was no such risk since Barnes was only allegedly guilty of a toll violation and had not done anything prior to driving away to suggest that Felix was at risk of serious harm. In other words, maybe Felix created a dangerous situation by stepping into the doorsill, and creation of such a situation would tilt the case in Barnes' favor.

Appellate Division says State HRL aligns with City HRL

In 2019, the State Legislature amended the New York State Human Rights Law to make it less burdensome for employment discrimination plaintiffs to win their cases. Prior to that, the state HRL was usually an afterthought and an add-on claim to the federal causes of action that most plaintiffs cited in federal court. The HRL is now stronger than federal law in many ways. But in portions of the amended statute, the language was not clear about the plaintiff's evidentiary burden. This ruling by the Appellate Division Second Department provides some guidance, holding that the state law aligns with the New York City Human Rights Law, long recognized as one of the most liberal antidiscrimination laws in the country.

The case is Wright v. White Plains Hosp. Medical-Center, issued on April 23. Plaintiff alleged she was fired because of her pregnancy. Supreme Court granted defendant's motion for summary judgment. Prior to 2019, the Second Department notes, "The standards for establishing unlawful discrimination under the NYSHRL previously were the same as those governing title VII cases." When the HRL was amended, however, the State Legislature advanced this statutory construction: the HRL should “be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed.” That's good language for plaintiffs. What does it mean?

The Appellate Division says this language means "the NYSHRL now aligns with the standards of the New York City Human Rights Law." In addition, "Under the NYCHRL, unlawful discrimination must play 'no role' in an employment decision. Thus, a defendant’s motion for summary judgment must be analyzed under both the familiar framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and under the newer mixed-motive framework, which imposes a lesser burden on a plaintiff opposing such a motion." 

Also, “A defendant must make ‘a prima facie showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in their challenged actions.’ A plaintiff may defeat summary judgment by coming forward either with evidence that the defendant’s stated reasons were a pretext for discrimination or with evidence that discrimination was one of the motivating factors for the defendant’s conduct.”

This language looks to be more favorable for employment discrimination plaintiffs than the prior state HRL. So that's good for plaintiffs. But it does not help this plaintiff. The Second Department, which uses this case as a vehicle to explain the contours of the amended law, finds (with limited factual analysis) that plaintiff still cannot win the case because "the plaintiff offered nothing but speculation that the decision to terminate her employment was motivated, even in part, by unlawful discrimination."

False confession verdict for $6.5 million is sustained on appeal

This is a hell of a case. The plaintiff gave a coerced confession for a double homicide that he did not commit, as the arresting officer took advantage of the plaintiff's schizoprehnia. The plaintiff spent over a decade in jail for this, but he was eventually exonerated after a law enforcement task force revealed that plaintiff had nothing to do with the murders, and other people eventually went to jail for these crimes. The jury awarded plaintiff over $5 million for pain and suffering and $1.5 million in punitive damages. The Court of Appeals affirms the verdict.

The case is Ortiz v. Stambach, issued on May 9, more than a year after oral argument. The factual background reads like a something out of a Netflix miniseries, or a John Grisham book. Defendant Stambach found a way to get Ortiz to confess to the murders. There was no corroborating evidence proving that Ortiz had killed anyone. The jury convicted Ortiz of murder. The U.S. Attorney's office eventually exonerated plaintiff, resulting in this lawsuit and the positive jury verdict.

The Court of Appeals (Leval, Bianco and Raggi) sustains the verdict, rejecting all of defendant's challenges, holding as follows:

1. The malicious prosecution verdict is sound because, while the grand jury indictment usually proves the officers had probable cause to arrest plaintiff, the jury was able to find the indictment was procured by fraud. Holdings like this in the Second Circuit are rare: it is difficult to prove such fraud, but in this case, the Court finds, the jury was able to credit plaintiff's testimony that his mental state at the time of the confession should have convinced the officer that plaintiff was making a false confession. That kind of circumstantial evidence is enough to win the malicious prosecution claim. We leave it to the jury to decide whether to believe a testifying officer in a case like this, especially since the officer had inconsistencies in his testimony. The jury disbelieved the defendant and that is enough for plaintiff to win. The fabrication of evidence verdict is also sound, largely for the same reasons the malicious prosecution verdict is sound. 

2. Defendant raises qualified immunity argument, which shields law enforcement from civil lawsuits if they acted reasonably in light of clearly established law. This immunity is a wild card in Section 1983 cases. There no way to really predict if prior case law is sufficiently similar to this case to defeat qualified immunity. Here, defendant actually waived the argument, failing to raise it at trial. That makes things easier for the Court of Appeals. In light of that waiver, he has to prove the verdict is a manifest injustice, but that is not an easy argument to win, certainly not on the facts in this case.

3. Defendant seeks a new trial based on the sufficiency of the evidence. But even assuming such an argument is reviewable on appeal, "the court should only grant such motion when the jury's verdict is egregious" or the jury has "reached a seriously erroneous result or the verdict is a miscarriage of justice." Since courts defer to the jury's credibility assessments, to articulate this standard is to resolve the issue. The Court finds no miscarriage of justice here.

4. By now you can see why the Court sustains the $1.5 million in punitive damages. The jury was able to find the coerced concession was egregious and malicious sufficient to support this relief. As for the pain and suffering, while the courts have authority to reduce the damages, the jury was able to credit plaintiff's testimony about how horrible prison conditions were in light of his mental health struggles, and courts have awarded $1 million for each year of wrongful incarceration.

2d Circuit rules against Trump administration in free speech visa-revocation case

TrumpWorld has now reached the Second Circuit, which holds that the administration cannot stay a district court order that a Turkish graduate student at Tufts University who was picked up by ICE and relocated from Massachusetts to Vermont due to her political opinions cannot have her habeas corpus petition decided in a Vermont federal court. That issue may seem relatively mundane. What is not mundane are the allegations resulting in the habeas petition and how the Court of Appeals sees the case.

The case is Ozturk v. Hyde, issued on May 7, only one day after oral argument. The Second Circuit is moving quickly on this case. As background, Ozturk was studying in Massachusetts when ICE seized her and took her to Vermont, and then to Louisiana. Her attorneys filed the habeas petition in Massachusetts, but the judge sent the case to Vermont, because that is where ICE took Ozturk. For a time, her lawyers did not know where Ozturk was, so they filed the petition in Massachusetts. While the government says the case transfer to Vermont was improper, even though it concedes it withheld Ozturk's whereabouts intentionally, the Court of Appeals says the case transfer was legitimate, noting that the government was responsible for the confusion since it moved Ozturk around the country without notifying her lawyers.

Since the administration wants to stay the district court's ruling that the habeas petition is properly heard in Vermont, it has to show its defense to this case is meritorious; that is the heart of any injunction application. As noted above, the Court of Appeals flatly rejects the government's arguments. The habeas petition will be resolved in federal court in Vermont. 

The noteworthy portion of the ruling, for those of you whose eyes glaze over in reading statutes and caselaw relating to habeas petitions, is how this case started in the first place. Ozturk is a third-year doctoral student on a visa who studies Child Study and Human Development. She co-authored an opinion piece for the student newspaper that took a strong position on Tufts University's response to resolutions passed by the student government that would have the university "acknowledge the Palestinian genomics, apologize for [the] University President['s] ... statements, disclose its investments and divest from companies with direct or indirect ties to Israel." 

In other words, she advanced a common editorial theme at American colleges and universities these days. The administration seized her and placed her in custody on the basis that she "had been involved in associations that may undermine U.S. foreign policy by creating a hostile environment for Jewish students and indicating support for a designated terrorist organization including co-authorizing an op-ed that found common cause with an organization that was temporarily banned from campus." In other words, heavily-armed plainclothes officers, some of them masked, arrested Ozturk without warning, and without a chance to speak with counsel, due to her editorial in the student paper. The State Department approved revocation of her visa "based solely on the assessment by DHS and ICE that Ozturk's co-authorship of the op-ed a year earlier demonstrated her involvement in organizations that may undermine U.S. foreign policy."

The Court of Appeals (Parker, Nathan and Carney) feels strongly about this case. It was argued yesterday and decided today in a lengthy ruling. You rarely see that. The Court also emphasizes throughout the ruling that this happened to Orzurk because she wrote an editorial for the student newspaper that criticized Israel. The Second Circuit -- no Circuit, really -- will come out and say it, but my guess is the Court is horrified what happened here.

First Department allows plaintiff to sue anonymously

Most plaintiffs file lawsuits in their name, but some cannot. They proceed as John Doe or Jane Doe, but proceeding anonymously requires permission from the trial court, which weighs different factors in determining if the public's right to know the parties to public lawsuits is outweighed by the plaintiff's right to privacy. These motions are not always granted. In this case, the trial court denied Jane Doe's motion, but the First Department says Jane Doe can proceed anonymously.

The case is Doe v. Kipp, a First Department ruling issued on May 6. I briefed and argued the appeal. Doe is a teacher for a charter school who was fired after highly intimate video circulated in the school community depicting her in a sex act. Her affidavit in favor of anonymity said there was no way her career would survive if she had to litigate this case case under her name, and it explained the psychological damage that would ensue in the event she could not proceed as Jane Doe. The trial court denied her motion, and the case went to the First Department. Here is the reasoning:

Defendants do not identify any source of prejudice to them from allowing plaintiff to proceed by pseudonym, as they know who she is and therefore are not impeded in mounting a defense . The public interest in disclosure of plaintiff’s identity is also minimal. Even if the charter school defendants were deemed public entities for these purposes, that fact would not be dispositive, especially because plaintiff is not requesting that court records be sealed or public access denied. Furthermore, the termination decision at issue here is not claimed to be the result of any government policy.

One issue was whether the identity of the defendant, a charter school, factored into whether plaintiff could proceed anonymously. A line of cases makes it harder to proceed as a Jane Doe plaintiff when she is suing a governmental entity. But charter schools are not not quite governmental entities, though they are regulated by the government. Defendant's status as a charter school, highly relevant to the trial court's ruling against plaintiff, did not prevent the First Department from ruling in her favor.

It was not clear to the plaintiff's team why the defendant fought so hard to prevent plaintiff from suing the charter school anonymously. Their appellate briefs argued in part that the public has the right to know plaintiff's identity since it might have been her fault that students had accessed the sex video. But the lawsuit did not concede that it was her fault that students had accessed the video, and it may have been that she was the victim of "revenge porn."
 

 

Did colleges breach an implied contract right in denying classroom instruction during COVID?

When COVID-19 shut down the world in spring 2020, colleges and universities began on-line instruction. Students the sued these institutions for breach of contract, claiming the remote instruction, instead of the in-person instruction, denied them their money's worth, or that the remote instruction was not consistent with promises made by the college when the students paid their tuition. These cases have been kicking around for a few years now. The Second Circuit now determines that the State Court of Appeals needs to issue a definitive ruling on these issues, and that is where this case is now going.

The case is Beck v. Manhattan College, issued on April 29. Our issue: can the students bring an implied contract claim in these circumstances? Surely online instruction is not the same as classroom instruction. The problem is the cases are all over the place on this issue.

The Second Circuit, for example, held in Rynasko v. Albany College of Pharmacy, 633 F.3d 81 (2d Cir. 2021), that when the college markets itself as a great place to learn on campus and promotes the benefits of in-person instruction, the college is creating an implied contract that the students will enjoy those benefits. Of course, the worldwide pandemic made those benefits impossible. But the state courts have ruled differently. The Second and Fourth Departments have held in COVID-19 cases that a similar breach of contract claim cannot lie, as the college's advertisements and representations about the benefits of on-campus instruction were too vague to create an implied contract right. The Fourth Department has even said that Rynasko was wrongly decided. 

The Second Circuit has authority to certify a state law issue to the New York Court of Appeals for a definitive ruling on the issue. When the State Court of Appeals resolves the disputed legal issue, the case returns to the Second Circuit to apply the new ruling to the facts of the federal case. That will happen here. 

In certifying the case for New York's highest court, the Court of Appeals notes, "the New York Court of Appeals has not yet resolved whether New York law requires a specific promise to provide exclusively in-person learning as a prerequisite to the formation of an implied contract between a university and its students with respect to tuition payments. The Second Circuit (Sullivan, Nathan and Kahn) further states that New York has an important interest "in determining the allocation of losses arising from the COVID-19 pandemic between a student and a university and in more broadly setting forth guidance for whether and when courts should find an implied contract between students and universities."

Qualified immunity denied in Vermont health-case protest case

This case arises from a non-violent protest in Vermont, where plaintiff, who had linked her arms with her compatriots, was forcibly removed from the statehouse during a mass protest in favor of universal healthcare. While the forced removal caused plaintiff to suffer physical injuries, the trial court granted the arresting officer qualified immunity. The Court of Appeals reverses and finds the jury could find the defendant violated clearly-established law under the Fourth Amendment.

The case is Linton v. Zorn, issued on April 24. The opinion provides a minute-by-minute account of plaintiff's arrest, thanks to video footage. The opinion says the officers used "pain compliance" methods to force plaintiff's removal from the statehouse after she said she was already in pain and unable to comply with their directive to leave.

The Court of Appeals (Sack and Perez) finds that, if the jury accepts plaintiff's version of events, clearly-established case law had placed the officer on notice that he was violating the Fourth Amendment. That case was Amnesty America v. Town of West Hartford, 361 F.3d 113 (2d Cir. 2004), where the Court of Appeals said anti-abortion protesters who had employed passive resistance techniques to impede their arrest (going limp, etc.) could sue the police for the use of excessive force. While Amnesty America was not a qualified immunity case, it was a Fourth Amendment case, and that is enough to put the officers on notice that such actions may violate clearly-established law. Other cases hold that the use of gratuitous force may also violate the Fourth Amendment. In sum: "we conclude that Amnesty America did clearly establish that the gratuitous use of pain compliance, techniques -- such as a rear-wristlock -- on a protester who is passively resisting arrest constitutes excessive force and is therefore violative of that arrestee's Fourth Amendment rights."

When you frame the qualified immunity issue that way, it supports plaintiff's case and mandates reversal of summary judgment  The Second Circuit holds that her case is close enough to Amnesty America that the officers were on notice that that they could be violating established legal principles, as defined through Second Circuit case law. While the Court thinks the jury would find that plaintiffs was resisting arrest and would not leave the statehouse willingly, the Court also finds the jury could find the use of force was excessive in forcing her removal. Since resisting arrest does not invite the use of excessive force, only some necessary force, the jury must decide if defendant used excessive force. The Court recognizes the jury could go either way on this issue.

Judge Cabranes dissents, noting that the trial judge had changed his mind during the case on whether Amnesty America created the clearly-established right recognized by the majority. If judges cannot agree on what is a clearly-established right, then police officers cannot be expected to, either. Nor does Judge Cabranes think that Amnesty America is close enough to this case as to disentitle the officer to qualified immunity. This judge also finds, upon reviewing the video, that this "was a routine arrest and removal" without any "specter of disproportionality," as plaintiff was "adamantly refusing to leave and resisting arrest -- at one point  nearly striking [defendant] in the face." Defendant "had limited options at his disposal to safely navigate the situation." 

The dissent suggests the Second Circuit  is not entirely faithful to Supreme Court authority of qualified immunity: "there is growing daylight between our Circuit's holdings on qualified immunity and the clear teachings of the Supreme Court." The reason for this may be that qualified immunity is difficult to define and its application turns on the unique facts of each case. This immunity has bedeviled judges and lawyers for years. There is in fact strong language in the Supreme Court that this immunity is quite forgiving for defendants, and that the plaintiff needs a damned strong case to overcome the qualified immunity defense. My guess is that Judge Cabranes's language, and his observation that the Second Circuit is straying from Supreme Court authority on this issue, will invite an en banc petition in the Court of Appeals and a certiorari petition in the Supreme Court if that effort fails.