Court of Appeals clarifies associational retaliation claims under Section 1983

It is illegal to retaliate against some because they are associating with someone else. But there are some major exceptions to this rule, as shown by a recent Second Circuit case against the County of Rensselaer.

The case is Gorman v. County of Rensselaer, issued on December 6. I represented the plaintiff in this appeal. The primary holding in this case, that qualified immunity shielded the defendants from any First Amendment liability arising from plaintiff's whistleblowing that a sergeant had invaded a civilian's privacy, is discussed here.

Gorman's sister was dating Sgt. Patricelli for years. They broke up because Gorman's brother told the sister that Patricelli was fooling around with someone else. That led Patricelli to threaten plaintiff and to otherwise retaliated against him. In addition to suing under the First Amendment, plaintiff sued under the Due Process Clause of the Fourteenth Amendment for associational discrimination. The Second Circuit had never really clarified what it takes to win a case like this under the Fourteenth Amendment, so it does so here.

But first, some untangling. In 1999, the Second Circuit resolved Adler v. Pataki, an associational discrimination claim brought under the First Amendment. In that case, the plaintiff's wife sued the State of New York, causing the state to retaliate against Adler, the husband. Gorman relied on Adler in proving his case, citing Adler's holding that simple vindictiveness against the plaintiff over his associational relationship with someone else is illegal. But the Second Circuit (Jacobs, Hall and Droney) distinguishes Adler.

Adler was not a Fourteenth Amendment claim: Adler concerned a familial association claim brought pursuant to the First Amendment, alleging that he was retaliated against because his wife filed an employment discrimination lawsuit against the State of New York. In that context, we ruled that “simple vindictiveness against the plaintiff on account of his wife’s lawsuit” was sufficient motive to sustain a familial association claim. Adler thus establishes that First Amendment associational rights protect against state intrusion into a family relationship intended to retaliate for a family member’s exercise of his or her First Amendment rights.

Since The Supreme Court has long held that "th[e] guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property,” and Gorman cannot show that Patricelli deliberately interfered with the family relationship, he cannot proceed under the Fourteenth Amendment. While Gorman claimed that Patricelli tried to antagonize Gorman by telling the sister that she had to control her brother, "any impairment of the sibling relationship was at best the indirect and incidental result of Patricelli’s conduct."

Officer gets qualified immunity for tasing a deaf 15 year-old

A police officer who tased a deaf 12-year-old boy twice has been granted qualified immunity by the Second Circuit, which dismissed the civil rights case on the basis that a reasonable police officer would have believed the tasing was necessary to prevent the boy from acting out any further and hurting someone.

The case is Muchette v. Gionfriddo, issued on December 7. The boy was a student at the American School for the Deaf in Connecticut. He got into an argument with a teacher and ran out of the dorm and entered a nearby, fenced-off construction area, where he hit the teacher, Hammond, with a stick and picked up a large rock before sitting down with the rock, refusing to return to the school. After the police arrived, school officials -- 15 feet away from the boy -- told the boy through sign language to put down the rock. At the officer's behest, the school officials also "told" the boy he would be tased if he did not comply with that order. When the boy appeared to ignore the warning, he got tased. The officer then tased him again when they were unable to place him in handcuffs. The trial court denied the officer's qualified immunity motion, setting this case down for trial, but the officer took up an immediate appeal, and the Second Circuit (Pooler, Walker and Jacobs) reverses the trial court and the officer gets qualified immunity, which means the case is over.

Qualified immunity allows public defendants to avoid suit if their actions were objectively reasonable under the circumstances. Few Second Circuit cases address when the officer can tase someone, but the court applies the cases that deal with the general excessive use of force against noncompliant arrestees and other malcontents who just won't listen.

The district court summarized the evidence:

Officer Gionfriddo shot A.M. in the back with his Taser gun, and electroshock was administered for a period of 5 seconds. However, the two officers were unable to handcuff A.M. at that time, so Gionfriddo administered a second round of electroshock. After the second Taser deployment, the officers were able to handcuff A.M.

Paramedical personnel on the scene removed the Taser prongs and transported A.M. in an ambulance to a hospital. A physical evaluation at the hospital revealed a Taser mark on A.M.'s back, an abrasion to his chest, and a scratch to his right hand.

At deposition, Officer Gionfriddo admitted that A.M. did not make any quick, adverse moves before Gionfriddo fired the projectile prongs into A.M.'s back. Nor did A.M. threaten to throw any rocks in Gionfriddo's presence. Moreover, Gionfriddo testified that if A.M. were to have made any quick moves, Goinfriddo was comfortable that he could disarm him by deploying the Taser at that time.

Gionfriddo was on the scene for under three minutes before resorting to his Taser.

 The officer gets immunity because the school told him the child threw a chair at a staff member, hit Hammond with a stick and threw rocks at Hammond and other staffers. This led the officer to reasonably believe the student was a danger to others. The officer also had a reasonable basis to believe his warnings made their way to the student, as the school-people conveyed them through sign language. While there was some dispute whether the student got the message, the officer reasonably believed the teachers conveyed that message to him, as they were after all school officials who would have wanted to warn the student so that he would not suffer any tasing. As for the second tasing, the Court says plaintiff's lawyer did not make a serious argument on this point.

So what looks like a slam dunk for the student turns into qualified immunity for the officer. I listened to oral argument for this case, and the officer's lawyer opened by acknowledging that his case at first glance looked like an uphill battle, as we are after all talking about two tasings of a deaf child who was situated away from everyone else and did not appear to pose an immediate threat to anyone. But qualified immunity is unforgiving, and it allows police officers substantial leeway. Under qualified immunity, courts will give the police the benefit of the doubt in close cases.

No retaliation claim for officer who exposed sergeant's use of police database to spy on his ex-girlfriend's new boyfriend

The Court of Appeals has held that a corrections officer who exposed a sergeant's abuse of a restricted police database to spy on his ex-girlfriend's new boyfriend can be retaliated against for his speech act because the law was not clearly-established that this kind of whistleblowing is protected under the First Amendment.

The case is Gorman v. Rensselaer County, issued on December 6. I briefed and argued this appeal. Plaintiff worked at the County Jail. The sergeant was dating plaintiff's sister, but the relationship ended when Plaintiff's brother told sis that the sergeant was cheating on her. Meanwhile, the sergeant went to the eJustice database to check up on the new boyfriend's criminal history. The eJustice maneuver violated the new boyfriend's privacy and was against the law; it cannot be used for personal reasons, only legitimate law enforcement reasons. The sergeant was prosecuted for using this restricted database, and he pleaded guilty. Plaintiff, meanwhile, was retaliated against for blowing the whistle on the sergeant.

Under settled First Amendment law, public employees cannot be retaliated against for speaking on matters of public concern, to be determined by the content, form and context of the speech. Public concern speech relates to any matter of concern to the community. At the same time, public defendants can invoke qualified immunity, which disallows the lawsuit for damages if the case law was not clearly-established at the time. While exposure of official police misconduct is "generally of great consequence to the public," the Second Circuit has also stated that "no authority supports the argument that reporting an alleged crime always implicates a matter of public concern," such as in Nagle v. Marron (2d Cir. 2011), where a teacher did not engage in protected speech when she complained that someone forged her name on an official in-school report.

The Second Circuit (Jacobs and Hall) holds that Gorman's speech was not clearly protected under the First Amendment because "there is no indication that [the sergeant] or the other defendants were engaging in an ongoing pattern of misconduct that might concern the public," and the sergeant's "isolated use of a computer program for a private purpose implicated neither public safety nor the use of taxpayer's money." Moreover, the majority holds, "the context was a volatile, intra-family feud that embroiled [the sergeant] and the Gorman siblings," and plaintiff's speech "was calculated to redress Gorman's personal grievances" against the sergeant, had no "broader public purpose" and "was score-settling, and had small practical significance to the public."

Judge Droney dissents, noting that the misuse of the computer system had "practical significance to the general public" because it accesses sensitive information that may only be used for official business and not personal activities. Misuse of the system has "substantial consequences," as the sergeant was suspended for 10 months, charged with two felonies and pleaded guilty to a misdemeanor. He adds that "any public official would have known that [the sergeant's] misuse of [the system] for private reasons would be of substantial public concern." While the majority concluded that this arose from a personal dispute among officers, "we have held that where a personal interest primarily motivated the speech, such motivation does not, on its own, vitiate the status of the speech as one of public concern."

Trial court did not properly analyze whether surveillance at Staten Island courthouse violates Sixth Amendment

Twenty years ago, the City of New York settled a lawsuit claiming the Staten Island courthouse did have private spaces for lawyers to talk to their pre-arraignment clients. When the City opened a new courthouse in Staten Island, the Sixth Amendment concerns resurfaced because the City installed surveillance booths in the attorney-client areas to prevent security incidents. The Court of Appeals says this surveillance situation might violate the Sixth Amendment.

The case is Grubbs v. O'Neill, a summary order issued on December 3. The trial court said the new surveillance cameras do not violate the Sixth Amendment because the cameras use "masking" technology which blocks out the lawyer's face and does not record the attorney-client conversations.

Here is the legal standard governing cases like this:

To evaluate whether an institutional restriction on the Sixth Amendment rights of individuals in custody is valid, we employ a balancing test to determine if the restriction “unreasonably burden[s]” an individual in custody’s “opportunity to consult with his attorney and to prepare his defense.” Thus, it was the district court’s duty to balance the alleged burden the surveillance imposed on Plaintiffs-Appellants’ Sixth Amendment rights on the one hand with the City’s proffered institutional reasons for the surveillance on the other.

In rejecting the plaintiffs' claims, the district court got the analysis wrong because "it misunderstood important Sixth Amendment jurisprudence concerning conduct that chills a detainee’s communications with counsel. Specifically, the district court erroneously concluded that a detainee’s 'subjective impression or belief' that her conversation was being recorded and monitored did not constitute a cognizable burden on the Sixth Amendment. The district court did not appropriately consider the chilling effect that the cameras’ presence in the attorney–client booths could have on pre-arraignment detainees’ willingness to communicate candidly with their attorneys."

Since the trial court had to "weigh any chilling effect of the surveillance cameras against the City's security interests to determine whether the video surveillance with masking technology violates the Sixth Amendment," the case is sent back to the trial court to give this case a fresh look.

Second Circuit says jury can find police falsely arrested schoolteacher over her classroom supervision

The Court of Appeals has reinstated a false arrest and malicious prosecution lawsuit filed by an Orange County school teacher who was arrested for Endangering the Welfare of a Child arising from her classroom supervision of a three-year-old special needs child. The law firm of Bergstein & Ullrich, LLP, and Scott A. Korenbaum, Esq., represents the plaintiff.

The case is Pehush v. Ashworth, issued on December 4, 2018. Plaintiff taught at a private school, which called the police to report that plaintiff had allegedly abused the child by (1) placing the student in the corner of the classroom with a divider on the desk, preventing her seeing the other children; (2) allowing the child to each lunch 45 minutes to an hour after the other children ate lunch; (3) cancelling the child's session with a speech therapist; (4) disallowing the child from going to gym class; and (5) keeping the child in a wet diaper for an extended period of time. When Detective Ashworth arrived at the school, her investigation revealed the facts were less incriminating than the initial report. For example, Plaintiff isolated the child because she was acting out but still gave her 1:1 attention during the school day behind standard cardboard dividers to focus the child's attention; the student's diapers were changed throughout the day; and the child was never in distress. Ashworth did not speak with the teaching assistant who was present in the classroom (who would have exonerated Pehush), and her interview notes with plaintiff did not accurately reflects what plaintiff told her about the incident.

While the district court granted Ashworth qualified immunity on the basis that she had arguable probable cause to make the arrest, the Court of Appeals says the jury can rule in plaintiff's favor, and the case is remanded for trial. The Endangering statute is "unconscionably" broad, as one of the Second Circuit judges stated at oral argument. It says that a person violates the statute if she "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." If the defendant was "aware that the conduct may likely result in harm to the child," she can be arrested. The jury can find that Ashworth had no basis to find that plaintiff violated the statute.

The Circuit (Calabresi, Katzmann and Lohier) says that "there are reasons to doubt Ashworth's credibility" because her "report memorializing her interview with Pehush is at best inaccurate and at worst intentionally misleading" on various material facts, such as when the girl ate her lunch and why Pehush isolated her from the other students (she was consistently throwing things around). Also, while Ashworth arrested plaintiff based on secondhand reports from school administrators, the jury can find she ignored exculpatory evidence from a second classroom aide, Crosby. "Most importantly . . . Detective Ashworth testified that Crosby told her that Pehush worked with [E.H.] throughout the day, and Crosby's sworn statement that E.H. 'was kept in the room with only' Pehush when other students went to the gym supports that claim." Also, Crosby told Ashworth that Pehush worked one-on-one with the student all day. In addition, Ashworth did not "take . . . easy investigative steps" to further investigate the allegations, suggesting "that she had made up her mind based solely on . . . secondhand reports." Put another way, the jury can find that "no reasonable officer would think that E.H. was at risk of meaningful injury," as required under the Endangering statute.

Interesting side-note to this case. Plaintiff brought a state law false arrest claim against the Town of Wallkill. The district court dismissed that claim because it found that Ashworth had qualified immunity based on "arguable probable cause," a standard that allows many police officers off the hook. Plaintiff argued that the Town may still be held liable even if the arresting officer had qualified immunity, so long as no probable cause existed for the arrest. The Second Circuit has said that municipal liability cannot attach when the arresting officer has qualified immunity, but that case said that in the course of a brief discussion in Kass v. City of New York (2d Cir. 2017). The Second Circuit remands the state law claim to the district court, suggesting that the language in Kass might not be binding after all.

Court of Appeals recognizes arbitrators' authority to clarify their rulings

The Court of Appeals holds that an arbitration panel may amend its arbitration award if it was ambiguous. This holding represents an exception to the general rule that limits the power of arbitrators to alter their awards.

The case is General Re Life Corp. v. Lincoln National Life Insurance Co., issued on November 28. This case involves reinsurance, a topic that is foreign to many lawyers. Bottom line: after the arbitration panel issued its award, the panel (over a dissent) issued a clarification in light of ambiguities in the original arbitration ruling. Once an arbitration ruling issues, the parties may ask the district court to confirm it. The party that objected to the clarification told the district court that the clarified ruling exceeded the arbitrator's limited authority. The Second Circuit (Pooler, Wesley and Chin) says:

A district court’s authority to vacate an award “is strictly limited in order to facilitate the purpose underlying arbitration: to provide parties with efficient dispute resolution, thereby obviating the need for protracted litigation.”

We call this the functus officio doctrine, which says that "once arbitrators have fully exercised their authority to adjudicate the issues submitted to them, their authority over those questions is ended, and the arbitrators have no further authority, absent agreement by the parties, to redetermine those issues.” Are there any exceptions to this rule? The Third, Fifth, Sixth, Seventh, and Ninth Circuits in recognize "an exception to functus officio where an arbitral award 'fails to address a contingency that later arises or when the award is susceptible to more than one interpretation.” The Second Circuit adopts that exception as well, which "furthers the well‐settled rule in this Circuit that when asked to confirm an ambiguous award, the district court should instead remand to the arbitrators for clarification." So here is the rule:

An arbitrator does not become functus officio when it issues a clarification of an ambiguous final award as long as three conditions are satisfied: (1) the final award is ambiguous; (2) the clarification merely clarifies the award rather than substantively modifying it; and (3) the clarification comports with the parties’ intent as set forth in the agreement that gave rise to arbitration. This narrowly drawn rule ensures that in those circumstances where an arbitral body issues an ambiguous award and must issue a clarification, it will do so in keeping with the twin objectives of arbitration: “settling disputes efficiently and avoiding long and expensive litigation.”

What it means for the parties in this case is that the district court got it right when it said the arbitrators were allowed to issue the clarification. The district court ruing is affirmed. 

2d Circuit reinstates case after defendant tries to moot it with make-whole settlement offer

This case re-acquaints us with an issue the Supreme Court took up two years ago, when it held that a defendant cannot moot out a case by making a Rule 68 offer that gives the plaintiff everything it asks for. The Second Circuit broadly interprets that holding to mean that even non-Rule 68 maneuvers that give the plaintiff everything it wants cannot moot the case.

The case is Geismann v. ZocDoc, decided on November 27. Plaintiff is a doctor who sues this "patient matching service" who sent unsolicited faxes in violation of the the Telephone Consumer Protection Act, which authorizes damages for these annoying intrusions into our everyday lives.

This is the second time this case reaches the Second Circuit. During the first go-round, the Court of Appeals said that defendant could not make the case go away by making a Rule 68 Offer of Judgment that would have made the plaintiff whole. In making the Rule 68 offer, the defendant was trying to kill off a class action suit by knocking off the plaintiff such that the class action necessarily would go away. That holding in the first Geisman appeal invoked the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 136 S.Ct. 665 (2016), which said that an unaccepted Rule 68 offer does not render the action moot because "an unaccepted settlement offer -- like any unaccepted contract offer -- is a legal nullity, with no operative effect" on the individual plaintiff's claim.

In the first Geisman appeal, the Second Circuit reversed the district court, which had dismissed the case as moot, consistent with the Supreme Court's ruling in Campbell-Ewald. On remand, the defendant tried another tactic. This time, it asked the district court for permission to deposit $13,900.00 with the court under Rule 67 and that it would make an open-ended offer to plaintiff with no expiration date of a total of $20,000.00 and all available injunctive relief sought by plaintiff. The district court was OK with this, and once defendant made the deposit with the court, the trial judge granted defendant summary judgment on the case, reasoning that this settlement offer mooted out the case because it was not a Rule 68 Offer of Judgment which carries a short deadline for the plaintiff to accept or reject the offer.

The Second Circuit rejects that reasoning and the case is again reinstated. Judge Sack reasons that the Supreme Court's rationale in Campbell-Ewald applies in cases that do not involve Rule 68 offers. This follows the Seventh Circuit's reasoning in Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017). The Second Circuit states:

Like the Seventh Circuit, we see no material difference between a plaintiff rejecting a tender of payment (pursuant to Rule 67) and an offer of payment (pursuant to Rule 68). Indeed, other than their labels, once rejected, the two do not differ in any meaningful way: In each case, ʺall that exists is an unaccepted contract offer, and as the Supreme Court recognized, an unaccepted offer is not binding on the offeree.ʺ

Moreover, a key factor underlying the Supreme Courtʹs holding in Campbell‐Ewald was that the plaintiff ʺremained emptyhandedʺ once the defendantʹs Rule 68 settlement offer expired. 136 S. Ct. at 672. An unaccepted offer provides a plaintiff ʺno entitlement . . . to relief,ʺ so ʺthe parties remained adverse; both retained the same stake in the litigation they had at the outset.ʺ Id. at 670–71. In other words, ʺa lawsuit—or an individual claim—becomes moot when a plaintiff actually receives all of the relief he or she could receive on the claim through further litigation.ʺ

The deposit of funds in the district court registry, without more, leaves a plaintiff “emptyhanded” because the deposit alone does not provide relief to him or her. “The Rule 67 procedure provides a place of safekeeping for disputed funds pending the resolution of a legal dispute, but it cannot be used as a means of altering the contractual relationships and legal duties of the parties.” Indeed, on its face, Rule 67 “is just a procedural mechanism that allows a party to use the court as an escrow agent.” It does not itself determine who is entitled to the money.

The Court of Appeals adds that even if the district court first entered judgment against defendant by enjoining it from sending additional faxes and providing plaintiff with the $20,000, that would not have offered plaintiff complete relief, because plaintiff was looking for more than just injunctive relief and damages; it wanted "the additional reward that it hopes to earn by serving as the lead plaintiff for a class action." This means the trial court must resolve the pending motion for class certification before entering judgment and declaring the action moot based solely on relief provided to plaintiff on an individual basis. If the class certification motion is granted, the case may proceed. Otherwise, the Second Circuit says, the defendant has control over control of a putative class action at will.