Monday, November 23, 2015

Habeas challenge fails to upset murder conviction

This case was big news in Orange County in the late 1990s, involving a marijuana dealer who was accused of killing someone who had ratted him out to the police. The body was never found. The case has gone through many appeals, first through the state system and then in federal court, where the defendant brought a habeas corpus action. The Court of Appeals rejects the habeas petition, and that's probably the end of the line for this guy.

The case is Chrysler v. Guiney, decided on November 19. The facts represent your typical murder case. Chrysler vowed revenge against the snitch, and the murder victim disappeared one morning. But Chrysler's car had the victim's blood in it and his glasses were found at the victim's house, where he was last seen. The victim's DNA was found in Chrysler's car, and so on. There was quite a bit of other circumstantial evidence that linked Chrysler to the murder. The prosecution called witnesses who had implicated Chrysler in one way or another.

There was a second defendant, Weygant, who testified in the Grand Jury and offered testimony that did not help Chrysler. But Chrysler agreed to a consolidated criminal trial with Weygant, and his trial lawyer did not object when the prosecution read Weygant's Grand Jury testimony to the jury, even though Chrysler's lawyer was not able to cross examine this testimony. Although that created a Confrontation Clause problem, Chrysler's appellate lawyers did  not raise that issue on appeal from the conviction. So Chrysler brings this habeas petition challenging the ineffective assistance of appellate counsel, which is a recognized basis to challenge your conviction and to demand a new trial.

At first glance, appellate counsel should have raised the Confrontation Clause issue on appeal. At the Supreme Court had just issued the Crawford ruling, and as the Second Circuit says in this case, "we assume that the admission of [the Grand Jury testimony] implicated Chrysler's Confrontation Clause rights." But the analysis goes beyond that. First, this issue was not preserved for appeal because trial counsel did not object to the Grand Jury testimony. Second, while the appellate courts in New York can still take up an unpreserved issue, it probably would not have done so unless the trial errors were quite egregious and deprived the defendant of a fair trial. In this case, the evidence of Chrysler's guilt was overwhelming, and a fairminded jurist on the Appellate Division could have thought the Grand Jury evidence merely corroborated the remaining evidence of Chrysler's guilt. As appellate counsel was entitled to proceed with the strongest arguments on appeal and not clutter up their brief with weaker arguments, the Second Circuit (Livingston, Kearse and Carney) finds they were not ineffective as Chrysler's lawyers.

What do we learn from this case? We learn that some constitutional errors are not enough to win the appeal. If the defendant is so guilty that the constitutional error would not have made a difference, then the habeas petition will fail. This case also reminds us that state courts have some leeway in interpreting the Constitution as it sees fit, and that it is not enough for the Second Circuit to disagree with the state courts. A habeas petition must only be granted if the state courts unreasonably interpreted the Constitution; a mere violation is not enough.

Friday, November 20, 2015

Ethics alert: the lawyer cannot always make decisions for the client

Normally, the client must live with his lawyer's choices. But not always. In this case, the client says his lawyer made decisions about the case without his knowledge. In particular, the lawyer agreed to drop certain claims. The client found out about this and asked the judge for help. The judge refused to do so. The Court of Appeals says the judge has to convene a hearing to see if the lawyer lacked authority to dismiss these claims.

The case is Gomez v. City of New York, decided on November 5. This is a civil rights case alleging plaintiff was falsely arrested. As Gomez was a City police officer, he was fired as a consequence of that arrest. He sues over his termination also. Gomez hired Reid as his lawyer, who stipulated to dismiss nearly all of Gomez's claims except for the employment claims. When Gomez learned that Reid had dismissed most of his claims, he asked the judge to declare the stipulation null and void because "my lawyer did not have my permission to dismiss all claims." The trial court denied Gomez's request.

The Court of Appeals (Katzmann, Pooler and Chin) says the district court got it wrong. True, the Second Circuit said, "that courts are generally reluctant to recognize attorney error as a basis for relief from an order or judgment." Also, clients are bound by their attorneys' acts. But that rule is not absolute. "Unlike many other acts that an attorney undertakes on a client's behalf, the decision to settle or otherwise dismiss claims 'rests with the client' and is 'not automatically bestowed ... on retained counsel." Here is how the Court of Appeals reasons it out:

The circumstances of this case clearly raised a factual dispute concerning Reid’s authority to dismiss Gomez’s claims. Within days of the stipulation’s signing, Gomez filed a pro se motion for relief from the stipulation and a detailed letter setting forth his assertion that Reid lacked the authority to dismiss his claims. Because the presumption that an attorney‐of‐record has authority to settle a case is rebuttable, the district court should not have denied Gomez’s motion without holding an evidentiary hearing to address Reid’s authority to dismiss Gomez’s claims. And contrary to the City’s contention that Gomez should have come forward on appeal with additional evidence supporting his assertions, Gomez’s detailed letter to the district court below is sufficient to warrant a remand for further development of the record.

Thursday, November 19, 2015

Arguable probable cause attaches in gun case

The law says prohibits the unlawful possession of a loaded weapon. This law has some exceptions for police officers, military servicemembers and persons "voluntarily surrendering such weapon ... provided that such surrender shall be made ... in accordance with such terms and conditions as may be established by the superintendent, sheriff, police force or department" to whom the weapon is surrendered." This false arrest case implicates that law.

The case is Markman v. City of New York, a summary order decided on November 2. Plaintiff was arrested for possessing a loaded weapon after he called the police to his car to report a possible explosive underneath his vehicle and a gun and ammunition in the trunk. He says he is entitled to the innocent possession exemption under the statute. It is true, the Court of Appeals (Chin, Katzmann and Castel [D.J.]) says, that "an officer would lack probable cause if the arrestee's entitlement to a statutory exemption were so plain that no reasonable officer could think otherwise."

But that exemption does not help plaintiff. The Court of Appeals says things were not so clear-cut for Markman:

Here, reasonable officers could disagree about whether Markman was entitled to the statutory exemption. When the officers arrived at his vehicle, they found no explosive underneath it, no evidence of tampering, and a gun and ammunition in a closed trunk to which only Markman had access. In short, Markman’s claim that others had left or planted the gun in his trunk was subject to objectively reasonable skepticism. Because the elements of the crime of unlawful possession were met and the exemption was not undebatably applicable, the arresting officers had at least arguable probable cause to arrest Markman and initiate prosecution. They are therefore entitled to qualified immunity for his claims for false arrest and malicious prosecution.
For those of you who do not handle cases like this, arguable probable cause gives the police the benefit of the doubt in close cases. Arguable probable cause falls under the qualified immunity umbrella, which protects public officials and employees from suit if their actions were objectively reasonable at the time of the alleged civil rights violation.

Tuesday, November 17, 2015

Supreme Court says officer not liable in wrongful death case

The Supreme Court has quietly held that a police officer who shot at a fleeing motorist during a high-speed chase is immune from suit because the state of the law at the time of the shooting did not make it clear that he violated the Fourth Amendment in firing the shots.

The case is Mullenix v. Luna, decided on November 9 in the form of a per curiam opinion without oral argument. In other words, the Court thinks this was an easy case. Only Justice Sotomayor dissents. It all started when some lunatic led the police on an 18-minute chase at speeds between 85 and 100 miles per hour. The motorist claimed to  have a gun and said he would shoot the officers if they did not leave him alone. The police laid down spike strips to disable the vehicle, but one officer, Mullenix, decided to shoot at the car from an overpass. Mullenix had no training for this maneuver. Before waiting for his superior officer to sign off on this approach, and before waiting to see if the strip spikes would work, Mullenix aimed his gun at the car and fired, killing the driver. After the driver was hit, the car engaged the spike strip, causing the car to roll over.

I used to guest teach a class at a local college where I would give the students a fact pattern and ask them to predict how the Supreme Court would decide the case. I would then explain the Court's reasoning. My guess is the students in this case would say the officer was liable for the driver's unlawful death. That's because students are unaware of qualified immunity, which says the police are immune from suit if they did not violate clearly-established law at the time of the incident. Clearly-established law means the case law was specific enough that any public official was on notice that he was violating the Constitution. Although thousands of court rulings have come down over the years on police conduct, judges still have not contemplated every factual scenario. Like this one. Here is how the Court frames the issue:

In this case, Mullenix confronted a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road. The relevant inquiry is whether existing precedent placed the conclusion that Mullenix acted unreasonably in these circumstances “beyond debate.” The general principle that deadly force requires a sufficient threat hardly settles this matter.

The Court says the legal backdrop for these cases has always been hazy. "The Court has ... never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity." Since there is no case quite like this one, the officer is given the benefit of the doubt and the plaintiff loses.

Justice Scalia concurs, stating that "It does not assist analysis to refer to all use of force that happens to kill the arrestee as the application of deadly force. The police might, for example, attempt to stop a fleeing felon’s car by felling a large tree across the road; if they drop the tree too late, so that it crushes the car and its occupant, I would not call that the application of deadly force. Though it was force sufficient to kill, it was not applied with the object of harming the body of the felon."

Justice Sotomayor sees things differently, but no one else on the Court signs onto her dissent. She writes:

Balancing a particular governmental interest in the use of deadly force against the intrusion occasioned by the use of that force is inherently a fact-specific inquiry, not susceptible to bright lines. But it is clearly established that the government must have some interest in using deadly force over other kinds of force.

Here, then, the clearly established legal question—the question a reasonable officer would have asked—is whether,under all the circumstances as known to Mullenix, there was a governmental interest in shooting at the car rather than waiting for it to run over spike strips.

The majority does not point to any such interest here. It claims that Mullenix’s goal was not merely to stop the car,but to stop the car “in a manner that avoided the risks” of relying on spike strips.

Monday, November 16, 2015

Circuit reverses summary judgment in racial discrimination case

The Court of Appeals reverses summary judgment in this racial discrimination case, holding that the jury may find the employer's reasons for denying the plaintiff tenure a pretext, even though the district court did not find  independent evidence of discrimination.

The case is Sands v. Rice, a summary order decided on October 16. This case has particular interest for me, for several reasons. First, the case arose at the high school not far from where I am writing this. Also, the Court provides some guidance on when pretext alone is enough to survive summary judgment in Title VII cases.

Plaintiff was the guidance counselor at the high school. In dismissing her racial discrimination claim, the district court assumed she made out a prima facie case. But the district court granted the school's motion for summary judgment, reasoning that "although plaintiff had 'attempt[ed] to manufacture a question of fact with respect to some of the deficiencies noted in her ‘unsatisfactory’ performance evaluations, many of the deficiencies [were] unrefuted by plaintiff,' and regardless, 'any such question of fact [was] immaterial,' as plaintiff 'ha[d] critically failed to come forth with any evidence that the decision to deny her tenure was based on her race or a discriminatory animus on the part of defendants.'”

In Reeves v. Sanderson Plumbing (2000), the Supreme Court told us when summary judgment is appropriate in discrimination cases, stating:

“[A] plaintiff’s prima facie case,” ... when “combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Of course, “[t]his is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability.” Indeed, “there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory.” But it is “err[or] [to] proceed[ ] from the premise that a plaintiff must always introduce additional, independent evidence of discrimination.”
In other words, prima facie case plus pretext may -- but does not always -- support a finding of discrimination. The problem is the Supreme Court has provided no guidance on how much pretext is enough to win the case in the absence of independent evidence of discrimination, such as a racist comment from a decisionmaker. The Second Circuit is a pretext-plus court, in my view, often requiring that the plaintiff offer more than just pretext to support a discrimination claim. As the Court tells us in this case, "Reeves prevents courts from imposing a per se rule requiring in all instances that a claimant offer more than a prima facie case and evidence of pretext" (citing Cross v. NYC Transit Auth., 417 F.3d 241 (2d Cir. 2005)). But the last time this Court in a published opinion denied summary judgment solely on the basis of pretext was in D'Cunha v. Genevese, 479 F.3d 193 (2d Cir. 2007).

In this case, the Second Circuit (Cabranes, Raggi and Pooler) reverses summary judgment, stating, "the District Court erred in holding that plaintiff’s proof that defendants’ explanation was false was 'immaterial' because she had not introduced additional, independent evidence of discrimination. The District Court also erred in failing to consider 'the probative value of [that] proof,' as well as 'the strength of ... plaintiff’s prima facie case.'” The Court of Appeals also says plaintiff has proffered enough evidence to support a finding that defendants discriminated against her because of race. But the Court does not discuss the evidence. So we don't learn much from this reasoning unless we read the district court ruling. That ruling gives us some insight, but the district court rejected plaintiff's factual arguments, and if there is additional evidence of racial animus it is not in any court ruling. This is what the district court wrote:

Sands refers to several incidents which she appears to argue would demonstrate animus towards her race on the part of defendants. By way of example, Sands claims that she "began a Step [Dance] Team," and that "[a]fter one year of providing [Sands] with a stipend for advising this club, . . . Clinton and Rice ended this stipend and proposed that [she] advise the club without charge," but she does not directly posit a reason why this occurred. Although Sands appears to imply that this was done because of her race, or because the "majority [of students] participating on [the team] were African-American," what the record indicates, however, is that Sands was not paid because she failed to submit the required claim form in order to receive payment as an advisor; Sands cites to no record evidence that would indicate that this decision was racially motivated. In fact, the year prior, when Sands did submit the claim form, she was paid a stipend for her services as advisor to the club.

Similarly, Sands argues that Clinton "initially strongly opposed [her] hiring but was convinced to hire her," and that from this, "[a] reasonable jury could easily conclude that Clinton harbored a bias against [Sands] and that this tainted the entire tenure review process." However, what Sands neglects to mention in her argument is that the only evidence of record on this issue indicates that Clinton's initial hesitancy in hiring Sands stemmed from a reference she had received from a former employer of Sands regarding a "communication issue" that Sands had with that employer, and there is nothing to indicate that this hesitancy was due to Sands' race. The only allusion to potential race discrimination in Sands' own affidavit, points to the statement of Edgar Rodriguez, a member of the board of education who, at the time of Sands' tenure decision, "strongly favored grant[ing] tenure and believed that nefarious motivations alone could explain a contrary decision." However, Rodriguez himself stated that he could "only speculate nefarious reasons, including racism, for denying . . . Sands tenure." It is well settled that "'conclusory allegations or unsubstantiated speculation' [are in]sufficient to raise a triable issue of fact as to whether . . . discriminatory animus" played a role in an adverse employment action.

Further damaging to Sands' argument is her admission that during her years of employment at New Paltz High School, she was never called any racial names or racial epithets by Rice or Clinton. 

Friday, November 13, 2015

Inmate wins religious freedom appeal

This prisoners' rights case alleges that the jail denied plaintiff kosher food and the religious head covering of his choice. Much to the dismay of the tough-on-crime crowd, I'm sure, he wins the appeal. And he does it pro se, without a lawyer.

The case is Barnes v. Furman, a summary order decided on October 22. Plaintiff says in 2004 he was denied kosher meals for a three to four month period because he identified as a Hebrew Israelite and not Jewish. He also says that in 2007, he was denied religious head covering because he then identified as Jewish and not Rastafarian.

Once again, an appeal turns on the issue of qualified immunity, which is legal-speak for the noption that public officials cannot be sued over constitutional violations that were not clearly-established at the time of the violation. If the case law was fuzzy at the time, the plaintiff loses, even if 20-20 hindsight says his rights were actually violated.

Plaintiff loses the kosher meals claim. Prisoners do have a right to a diet consistent with their religious beliefs. But in this case, it was objectively reasonable for defendants to think that their denial of kosher meals to an inmate who identified as a Hebrew Israelite did not violate his rights. Not only did prison officials rely on prison policy in this regard, but they relied on plaintiff's registered religious designation in making its kosher meal determination.

But plaintiff wins the religious head covering part of the appeal. The jail officials do not deny that plaintiff's rights were violated in the abstract. But they argue, under qualified immunity principles, that there was no clearly-established law allowing inmates to wear "head coverings of their choice." While the Court of Appeals has never held that prison officials must provide inmates with head coverings of their choice, it is clear that the jails cannot violate inmate rights without asserting a legitimate reason for doing so. The jail provides no good reason why they followed a policy that limited Jewish inmates' head coverings to yarmulkes only. Nor do they explain why they relied solely on the opinion of the New York State Board of Rabbis where the sincerity of plaintiff's religious belief is not in question.

Tuesday, November 10, 2015

Blind man may have standing to sue NYC over Central Park's ADA violation

I wonder why this case did not get more attention. A blind man sues the City of New York alleging that it violates the Americans with Disabilities Act because it does not allow equal or reasonable access to Central Park, i.e., the City does not provide proper signage at all inaccessible entrances to its facilities. The Court of Appeals says he may have a case.

The case is Bernstein v. City of New York, a summary order decided on October 26. The question is whether plaintiff has standing to sue. This issue arises more often than you think. Many ADA violations are attacked by plaintiffs challenging structural and other deficiencies. But they cannot sue establishments and public areas for the hell of it. They have to show they have a stake in the lawsuit. We call it standing.

To have standing in an ADA claim, a plaintiff must show he (1) alleged past injury under the ADA; (2) it was reasonable to infer the discriminatory treatment would continue; (3) it was reasonable to infer, based on the frequency of prior visits and proximity of defendant's services to the plaintiff's home; and (4) plaintiff intended to return to the location.

For the most part, plaintiff satisfies these standards. He has visited the Park in the past, and points out that the missing detectable warnings at crosswalks make it impossible for him to know that he is nearing a roadway with moving traffic. He cannot cross streets in the Park without the assistance from strangers. But the Complaint has a deficiency in regard to plaintiff's intent to return to the Park. He says he has visited the park hundreds of times and has been to New York 30 times per year for ten years. But the Complaint says nothing about his intent to return to the Park in the future. On remand, the district court must undertake further factfinding on this issue.