Tuesday, June 30, 2020

Court of Appeals reinstates excessive force verdict in Taser case

The plaintiff in this case went to trial on his excessive force case against the police, who tased him twice in the course of trying to arrest him. Plaintiff won the trial, and the jury awarded him $30,000 in punitive damages. But the trial judge struck the verdict, ruling the officer had qualified immunity in the belief that the plaintiff was still resisting after the first tasing, necessitating the second blitz with the Taser gun. The Court of Appeals reinstates the verdict and finds the officer did not have qualified immunity because the jury found that plaintiff was not resisting arrest after the first tasing.

The case is Jones v. Treubig, issued on June 26. Qualified immunity means the police cannot be sued if they are not violating clearly-established case law at the time of the incident. The Court of Appeals finds that it was clearly-established in the Second Circuit in 2015 (when this episode took place) that officers cannot tase or pepper spray someone who is complying with police demands, poses no immediate threat to the police, or is not resisting arrest. The Court of Appeals has ruled this way in pepper spray cases, and it finds the logic in those cases applies to Tasers. So this is the first time the Second Circuit squarely holds that a Taser cannot be used except in special circumstances.

The problem is that the district court, post trial, determined that the plaintiff had conceded at trial that he was resisting arrest after the first tasing. That was actually not the case. The trial court got it wrong. The jury found that plaintiff was not resisting at this time. If plaintiff did make such a concession, then the police would have qualified immunity because the case law has never held that a police cannot cannot use a Taser when someone resists arrest. While plaintiff "was pushing himself off the ground at the time of the first tasing," the Court of Appeals (Bianco, Cabranes and Reiss [D.J.]) says, prior to the second tasing, "he was already subdued face down, arms spread," and on the ground. In that circumstance, there was no need to blitz the plaintiff.

When the jury returned its verdict, it answered a few questions that the trial court posed to it about the state of the officer's knowledge at the time of the incident. The jury said that while plaintiff was not resisting arrest, the officer believed he was. Is that enough for qualified immunity to attach? No, says the Court of Appeals, because qualified immunity only protects reasonable factual mistakes on the part of the police officer, not any mistake in fact. The jury was not asked if the officer's belief about plaintiff's resistance was reasonable when the officer activated the Taser.

The officer tries to win the appeal by arguing that the Taser blasts took place in rapid succession and he deserves the benefit of the doubt when he must act quickly. But the Court of Appeals says the jury was able to find the officer actually had time to think about tasing the plaintiff before he did so a second time. And the officer kind of admitted at trial that after the first use of the Taser (which lasts five seconds), he "reassessed the situation" and then tased the plaintiff again. Since it is clearly established law that the reasonableness of the amount of force is determined "at the moment" the force is used. "Thus, any reasonable officer would have understood in April 2015 that, if he or she has an opportunity to re-assess a situation after firing a taser, any additional force (such as re-cycling the taser) must be justified under the Fourth Amendment based upon the totality of the circumstances that existed at the time of the re-assessment."

Finally, the officer argued that he had to tase the plaintiff again because he needed to handcuff him. But the Court of Appeals rejects that argument, holding that "there was more than sufficient evidence for a rational jury to conclude that he was no longer resisting arrest after the first tasing or posing an ongoing threat to the safety of the officers or others. Thus, any belief by [defendant] that the second tasing was necessary to effectuate handcuffing Jones was unreasonable," particularly since Jones was face down on the ground with his arms spread after the first tasing.

Friday, June 26, 2020

Federal court strkes down New York State religious shutdown order

A federal judge in Albany has ruled that the New York State's prohibition against certain religious gatherings during the Covid-19 pandemic violate the Free Exercise clause of the First Amendment, which protects religious freedom.

The case is Rev. Stoos v. Cuomo, issued by Judge Sharpe of the Northern District of New York. Under the most recent public gathering orders issued by the Governor, houses of worship must operate at 25 percent indoor capacity during Phases 2 and 3. No secular, non-religious entity, must adhere to a 25 percent restriction (except for those entities that remain closed). Offices and certain retail stores were permitted to open at 50 percent capacity during Phase 2, and restaurants in Phase 3 locations can open at 50 percent capacity indoors. As Judge Sharpe sees it, the 25 percent indoor capacity limitation for houses of worship is under-inclusive. Starting on June 26, in-person graduation ceremonies can have no more than 150 people. In layperson's terms, the 25 percent restriction is narrower than that afforded to non-religious entities.This means the state must advance a compelling reason for the distinction.

The Court holds the state cannot justify the distinction. The public gatherings at issue here, including the religious and non-religious gatherings, are not significantly different from each other to justify the disparate percentages. Judge Sharpe also deems it relevant that New York City Mayor de Blasio has actively encouraged the mass protests over the death of George Floyd and systemic racism in general in recent weeks, and he has "openly discouraged religious gatherings and threatened religious worshipers with arrest if they did not adhere to the guidelines. The Governor has also sent a "clear message that mass protests are deserving of preferential treatment."

The Free Exercise Clause claim is therefore likely to succeed. This ruling is a preliminary injunction, in which the court enjoins the government from enforcing its restrictions until the case is finally resolved. "Appropriate injunctive relief here is a restraint on defendants from enforcement of any indoor gathering limitations against plaintiffs greater than imposed for Phase 2 industries and restraint from enforcement of any limitation for outdoor gatherings against plaintiffs."

Friday, June 19, 2020

Inmate may proceed with claim alleging the denial of his right to exercise

The Court of Appeals has reinstated an Eighth Amendment lawsuit filed by an inmate who alleges that the jail denied him exercise opportunities because they decided against clearing the outside recreational areas of snow and ice during the winter months.

The case is McCray v. Lee, issued on June 18. Plaintiff filed this case pro se. He says the jail's policy of not clearing the snow and ice meant he could not undertake any outside exercise for four months, and that jail officials were deliberately indifferent to his right to exercise. There is such a right, by the way. While the very capable district court judge dismissed this case for failure to state a claim under Rule 12(b)(6), the Court of Appeals (Kearse, Bianco and Katzmann) says the plaintiff is entitled to discovery on this issue because the complaint does not suggest the jail had any legitimate penological reasons to refuse to clear the yards of ice and snow "for an entire third of a year."

The state, of course, raises the qualified immunity defense. Under that form of immunity, the defendants cannot be sued if the plaintiff fails to allege they violated clearly-established case law set down by the Second Circuit or the Supreme Court. The district court agreed with that argument holding that no case had previously held that inmates had the right to exercise in a prison yard "without naturally accumulating ice or snow during winter months." That may be true, but that frames the qualified immunity inquiry too narrowly. The Second Circuit holds that "the right need not be described with specific references to the weather or characteristics of the seasons of the year in order for a reasonable prison official to understand that climatic features may necessitate responsible measures to ensure that the right to a meaningful opportunity for physical exercise not be denied." The proper question, according to the Court of Appeals, is whether prisoners have "some opportunity for exercise." The Court cites cases dating to 1985 for that proposition. So plaintiff's right was in fact clearly established.

The Circuit has not published an Eighth Amendment right to exercise case in years. This case provides a template for inmates who want to pursue these claims. In the process of handling a case like this myself, I can say these cases are common in Connecticut in particular, though they do not involve snow and ice. It may surprise you that the right to exercise is protected under the Constitution. While the Constitution says nothing about prison exercise, it is considered one of life's necessities, and it cannot be denied with a good reason. For now, without the benefit of discovery, plaintiff alleges that jail officials knew about the denial of his exercise but were deliberately indifferent to that denial. While you might think the right to exercise can be corrected by allowing the plaintiff to exercise in his cell, the decision does not make reference to that at all. Perhaps the Court of Appeals believes that outdoor exercise is critical under the Eighth Amendment.

For you civil procedure wizards out there, this case has an interesting pit stop about the relevant documents to draw from in determining whether the plaintiff has a plausible claim under Rule 12. Plaintiff amended his complaint, the document which the Second Circuit reviewed on this appeal. But the state argued that the initial complaint in this case had admissions that worked against plaintiff's position. The Court of Appeals says those prior admissions may be useful in attacking plaintiff's credibility later in the case, but they cannot be relevant in determining if the amended complaint states a claim. The Circuit cites two cases, Dangler v. Off-Track Betting, 193 F.3d 130 (2d Cir. 1999), and Chambers v. Time Warner, 282 F.3d 147 (2d Cir. 2002).

Thursday, June 18, 2020

Jury deliberations were infected with inadmissible evidence

What can go wrong at trial? Quite a bit, actually. This case is a good example of what happens when people are not paying attention. The jury was able to review evidence during deliberations that was not even admitted at trial. In the end the plaintiff loses and gets nothing.

The case is Zhang v. Zhang, a summary order issued on June 3. This case was brought under the Fair Labor Standards Act and the New York Labor Law, alleging overtime pay violations. This case went to trial, and the jury found that Defendant Zhang was plaintiff's employer; that was a disputed issue at trial. Plaintiff was awarded more than $200,000 in damages. All was good for the plaintiff. Until the bottom fell through.

Here is what happened. After the jury was excused, the district court found a binder of sworn deposition testimony in the jury room. That testimony was never admitted at trial. Some of the testimony was highlighted and had handwritten notes pertaining to the losing defendant's status as an employer. Somehow this material made it into the deliberation room. The district court determined that the depositions transcripts got that far because plaintiff's counsel had given them to the courtroom deputy for the jury's review. How that happened, I do not know. But it happened, and the trial court decided that this inappropriate evidence influenced the jury's verdict on employer liability. A new trial was ordered.

At the second trial, the plaintiff lost on the same issue on which he prevailed at the first trial, employer liability.

The Court of Appeals rejects plaintiff's claim that the district court has improperly ordered a new trial, finding the trial court did not abuse its discretion in doing so. The deposition evidence was directly relevant to the defendant's status as an employer, and of course the conduct of plaintiff's conduct in giving the courtroom deputy this evidence for the jury deliberations was "egregious." At oral argument in the Second Circuit, plaintiff's counsel said it was all a mistake, and to his credit, he opened his argument with a mea culpa. But that does not mean the Court of Appeals has to give him and his client a second chance. The case is over.

Wednesday, June 17, 2020

Court of Appeals revives Section 1983 wrongful death claim

This might be the Second Circuit's police misconduct case of the year. The Court of Appeals reinstates a wrongful death lawsuit where a mentally-ill elderly man died in police custody after they broke into his home on an accidental medical alert.

The case is Chamberlain v. City of White Plains, issued on May 29, more than two years after the Court of Appeals heard oral argument. The decedent accidentally hit the medical alert button, which sent approximately one dozen police officers and medical emergency workers to his apartment. The Complaint alleges, however, that when he police arrived at the home, they learned from the dispatcher that Chamberlain had accident hit the life-alert button. Chamberlain also told the police that it was all accident, and that there was nothing wrong with him. But the police persisted on banging on the door and eventually forced their way inside the house without Chamberlain's consent. This made Chamberlain even more agitated, once he saw the guns and weaponry, suffering flashbacks from his military service. Really, at this point, things were getting pretty ugly, and the Court of Appeals (Hall and Sack) notes that the audio recording of this episode "add a dimension to these proceedings that we doubt even a verbatim transcript alone would provide." It must have been quite a scene. After the hour-long standoff, once the police entered the apartment, they deployed their weapons, Tased him and fired beanbag shots before firing their handgun. One of the bullets killed Chamberlain.

While the district court dismissed the unlawful entry claim, that claim is revived on appeal. The police had no warrant, and they entered the abode without the victim's consent. While the police can enter without a warrant in extraordinary circumstances (such as when someone's life is at stake), the complaint does not establish they satisfied that high burden, as it took more than an hour to enter the apartment before they tore the door off the hinges and fatally shot him. The Court says a reasonable, experienced officer would not have believed there was probable cause that Chamberlain needed urgent medical attention, especially since they knew the life-alert had been activated accidentally. And, when they entered the apartment, they did so not with a gurney or paramedics but with a Taser and other weapons. The district court drew an improper inference in finding the plaintiffs have no claim, in part, because Chamberlain was not mentally capable of providing adequate assurances of his own medical needs. 

Nor do the police get qualified immunity on the face of the complaint. It was clearly established at the time that you cannot enter a private dwelling without exigent circumstances, and cases had already held that an uncorroborated 911 call reporting that a mentally ill person is in distress is not enough to believe there is a medical emergency. This claim therefore proceeds to discovery.

Some of the claims did proceed to discovery, but the district court dismissed them on summary judgment, including an excessive force claim against Officer Martin, who deployed beanbag shots at Chamberlain. Now that the Court of Appeals has ruled that the search may have been illegal, the district court must again whether Martin's use of force complied with the Fourth Amendment in light of the totality of the circumstances, which includes the warrantless entry ruling. Same holds true on the supervisory liability claims that were dismissed on summary judgment.

Tuesday, June 16, 2020

Supreme Court holds that LGBTQ discrimination violates federal law

The Supreme Court has ruled that discrimination against gays, lesbians, and transgender people is a form of gender discrimination prohibited under Title VII of the Civil Rights Act of 1964. The 6-3 ruling is notable in its bi-partisan majority, with two Republican-appointed Justices voting with the Court's four liberals.

The case is Bostock v. Clayton County, issued on June 15. This was three cases in one. The other two were Zarda v. Altitude Express out of the Second Circuit and R.G. v. Harris Funeral Home, from the Sixth Circuit. I was on the Zarda legal team along with Gregory Antollino, Esq., who initially filed the case, the ACLU, which joined the case at the Supreme Court, and law professors and veteran Supreme Court advocates Pamela Karlen, Esq. and David Cole, Esq., who argued for the plaintiffs at the Supreme Court in October 2020.

The case really presented a statutory construction dilemma. While Congress in enacting the 1964 law was probably not thinking of LGBTQ issues, plaintiffs advanced a logical basis why this form of discrimination is actually gender discrimination. If we apply the statute as it reads, and set aside legislative intent, then the plaintiffs win. If we consider what Congress had in mind 56 years ago, then plaintiffs probably lose. Writing for the majority, Justice Gorsuch interprets the statute in a purely "textualist" way, taking the language where he finds it and holding that, whatever Congress had intended way back yonder, discrimination on the basis of sexual orientation and transgender status is still gender discrimination.

How did the majority get there? Justice Gorsuch turns it into a simple inquiry, concluding, "An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids." Put another way, let's say John is dating Frank, and Linda is dating Tom. John and Linda both come into work late one day. Management is unhappy with their unprofessionalism, but only John is fired. And, by the way, management makes a homophobic comment to John on the day that John is fired. If John were Josephine, he would not have been fired. What made the difference in John's termination was his gender. A female who dated Frank would not have been fired. As the majority puts it, "If an employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee -- put differently, if changing the employee's sex would have yielded a different choice by the employer -- a statutory violation has occurred." Viewing it from this angle, Justice Gorsuch says, "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." Gender is so closely aligned with sexual orientation that adverse decisions based on sexual preference or transgender status cannot be separated from the employee's gender.

The majority then addresses the employer's arguments. While the employers note that employees who were fired because of their sexual orientation normally do not tell people in casual conversation that they were fired because of their gender, that does not matter, Justice Gorsuch says. What matters is how that adverse decision holds up against the statutory language that prohibits gender discrimination.

The employers and (Justices in dissent) also note that prior attempts to change the statute to prohib this form of discrimination have failed. While Congress over the years has considered but rejected amendments to Title VII to explicitly prohibit discrimination based on sexual orientation, we cannot read too much into that, the majority says, because legislative amendments may fail for any number of reasons, and the whole exercise in divining why such amendments fail is too speculative, even "dangerous." What matters is what the statute says, and the Court is willing to accept that some statutory amendments failed even if they were not technically necessary because a plain reading of the statute already addressed the issue, which is happened in this case. While legislative intent may be relevant when the terms of a statute are ambiguous, that is not the case when the terms of the statute are clear. Since the six-Justice majority finds the terms of the statute are clear, it does not matter what Congress had in mind in 1964 when it made gender discrimination illegal. Consider sexual harassment. That phrase did not even exist in 1964. But in 1986, the Supreme Court said that such harassment is a form of gender discrimination regardless of what anyone thought when the statute was enacted.

Justices Alito, Thomas and Kavanaugh dissent. Justice Alito files a lengthy dissent, accusing the majority of arrogantly concluding that courts had gotten this issue wrong for 50 years before enlightened minds determined that this form of discrimination is actually gender discrimination. He also does not buy the argument that discrimination on the basis of sexual orientation necessarily takes into account the employee's gender. Justice Kavanaugh applauds the outcome of the majority's ruling, noting that gays and lesbians have persevered over the years against steep odds. But he also says the majority's ruling violated the separation of powers and that only Congress can change the meaning of "gender discrimination" under the statute.

This ruling is a landmark not only for LGBTQ rights but in the interpretation of statutes. The "textualist" interpretation method has commanded a clear majority on the Supreme Court. The Court also provides extensive language about proving discrimination under the "but for" theory, noting among other things that unlawful discrimination must have been the true cause of the termination, even if we have multiple "but for" causes for the adverse decision.

I saw the oral argument in this case, sitting with the legal team that represented Donald Zarda, Gerald Bostock and Aimee Stephens. I wrote about the argument at this link. It was an intense two hours. There is much speculation in watching oral argument. Which judges are asking the questions, what are the questions hinting at, who's with us and who's against us? The Justices try to play their cards close to their vest, which is why guessing the outcome of a case based on oral argument is tricky and sometimes a waste of mental resources. There was an overriding concern: five of the nine Justices are conservatives appointed by Republican presidents. But we also thought the arguments went well and our positions were logical. Justice Alito did tell the plaintiffs' side that he did not agree with them, and Justice Thomas did not ask any questions, as per his style. But when we all filed out of the Supreme Court building that day, there was a sense of optimism. Justice Gorsuch seemed to understand the plaintiff's position, and Chief Justice John Roberts did not smack around the plaintiffs' lawyers. We gathered on the concourse outside the building thinking we might actually win and that, at a minimum, we were still in the ball game. One issue that sticks out for me is that President Obama's choice to replace conservative icon Antonin Scalia was filibustered by the Republican Senate in 2016, allowing the current president to replace Scalia with another conservative, Neil Gorsuch. In the ends, at least for this case, that did not matter. It was Gorsuch who ultimately wrote the majority opinion.

Thursday, June 11, 2020

Religious headwear case prevails in the Second Circuit

This Jewish inmate wore at Tsalot-Kob, a religious headwear, because his yarmulke did not fit over his dreadlocks. But a prison directive said that only Rastafarians could wear Tsalot-Kobs. This meant that plaintiff could not wear his. Plaintiff sued the prison under the Religious Land Use and Institutionalized Persons Act, as well as the First Amendment's Free Exercise Clause. The district court said the defendants were entitled to qualified immunity, and the case was dismissed. The Court of Appeals rules in favor of the plaintiff.

The case is Barnes v. Fedele, a summary order issued on May 29. This case reached the Second Circuit a few years ago. Back then, it reinstated the case after the district court had dismissed it, and the appellate court directed the district court to deal with the qualified immunity inquiry. This immunity allows the defendants to avoid suit if they did not violate clearly established case law in violating the plaintiff's rights.

Back in the district court, several prison officials signed affidavits explaining why they enforced the policy as they did, basically saying that they believed religious head coverings could be used to hide contraband, drugs or weapons. Allowing Rastafarians only to wear the head coverings meant that jail officials had fewer searches to conduct. No one submitted any sworn statements about the legitimate penological interests that would justify this directive. The trial court dismissed the case.

The Court of Appeals (Sack, Wesley and Chin) notes that qualified immunity protects state defendants from litigation if the law was not clearly established at the time of the violation. But the law guiding this case was clearly established in that courts have already held that prisons may abridge freedoms if the directives are reasonably related to legitimate penological objectives. Also, courts have held that visual body cavity inspections can be conducted in jail even without probable cause to ensure that no one is smuggling contraband.

The officers who applied the policy get qualified immunity because that immunity protects people who enforce even illegal policies. But the man responsible for the policy, Nuttall, does not get qualified immunity. He is liable because the cases have long held that "prison officials may only abridge a prisoner's free exercise rights if doing so is reasonably related to some legitimate penological interests." That derives from Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003). While this defendant says that issue statement is too broad for qualified immunity purposes, and that it therefore ignores Supreme Court authority requiring narrow issue statements for immunity purposes, the Second Circuit does not see it that way. The problem for Nuttall is that he did not submit an affidavit explaining his rationale for the policy. Why Nuttall did not submit an affidavit, I know not. For that reason, he cannot get summary judgment on qualified immunity grounds.