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It took the Court of Appeals 77 pages to say this, but the long and the short of it is that if you want to be a law enforcement officer, you probably shouldn't join the Outlaws Motorcycle Club, an organization which the government regards as a criminal enterprise, comparable to the Hell's Angels. Since many innocents no doubt belong to the Outlaws Motorcycle Club, the question is can the State of Connecticut can fire corrections officers who belong to this organization. Rejecting the officers' Freedom of Association claims, the Second Circuit (Kearse, Sack and Stanceu) upheld their terminations.
The case is Piscottano v. Murphy, decided on December 21, 2007. As the Court of Appeals likes to do, it uses this case to flesh out the state of the law on the right of association under the First Amendment, outlining how the Supreme Court has made it easier over the years to allow the government to restrict certain First Amendment freedoms among public employees.
The Court of Appeals first reviewed the Supreme Court's latest pronouncements on the regulation of a public employee's outside activities. Citing San Diego v. Roe, 543 U.S. 77 (2004), the Court stated that the government has leeway to discipline an employee whose outside speech or associations are detrimental to that operation. It is true, the Second Circuit held, that the plaintiffs in this case engaged in a "protected" association with the Outlaws in that their involvement with the organization raised a matter of "public concern" under the First Amendment. This is because, while the Outlaws Motorcycle Club does not as an organization engage in "public concern" speech, that organization's questionable existance itself would raise concern among the public.
But while "public concern" speech is protected by the First Amendment, the analysis does not end there. The government can still win the case by showing that this associational relationship can hurt governmental operations. Since the plaintiffs are corrections officers associating with an organization with a mission at odds with law enforcement, they can be fired for that association, overriding the First Amendment claim. Moreover, since membership in a large and non-selective social club like the Outlaws does not represent the kind of intimate (family) relationship for which you cannot be punished at work, the right of "intimate association" under the First Amendment does not help the corrections officers, either.
Saturday, December 22, 2007
Friday, December 21, 2007
Lengthy police detention for no reason creates a false arrest claim
Marie Gilles was driving a Dodge cargo van containing large barrels when a police officer saw the containers and noticed that the vehicle was "heavily laden" and moved abruptly when passed by a marked police car. The officer ran a computer check and saw that the vehicle was (mistakenly) listed as stolen. After State Troopers arrived and placed Gilles in handcuffs, they discovered that the van was not stolen. The police dog found no drugs. According to Gilles, she remained handcuffed for another hour, and even after a vehicle search found nothing illegal (she was delivering supplies for her business), they brought her to the police station anyway. She was never charged with anything, and brought a Federal lawsuit under Section 1983, the civil rights statute.
The trial court dismissed the case on summary judgment. The Second Circuit (Sessions, Calabresi and Wesley) reinstated the case, ruling in Gilles' favor.
The case is Gilles v. Repicky, decided on December 21, 2007. Here's what the Court of Appeals did:
1. Gilles properly alleged a violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. She was seized and detained for two hours after any reasonable suspicion of criminal activity had faded away, during which time she was handcuffed and directed to go to police headquarters. Since investigative detentions must be as brief as possible, this detention was too intrusive. Under the circumstances, Gilles did not reasonably think she was free to leave the scene once the handcuffs were removed, particularly in light of the many police officers present and their direction that she follow them to headquarters. Although she was not formally arrested, her inability to leave was tantamount to an arrest under the Fourth Amendment. Since Gilles was exonerated but detained for no reason, she can seek damages for the unlawful detention.
2. While law enforcement officers are immune from suit if they acted reasonably under the circumstances, there's no immunity here if the jury believes Gilles' story, because any competent police officer would have allowed her to move on when it became clear that she was not committing any crime. Although there may have been reason to stop Gilles' vehicle initially, that does not mean the police can detain her long after the reasonable suspicion of criminal activity disappears.
The trial court dismissed the case on summary judgment. The Second Circuit (Sessions, Calabresi and Wesley) reinstated the case, ruling in Gilles' favor.
The case is Gilles v. Repicky, decided on December 21, 2007. Here's what the Court of Appeals did:
1. Gilles properly alleged a violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. She was seized and detained for two hours after any reasonable suspicion of criminal activity had faded away, during which time she was handcuffed and directed to go to police headquarters. Since investigative detentions must be as brief as possible, this detention was too intrusive. Under the circumstances, Gilles did not reasonably think she was free to leave the scene once the handcuffs were removed, particularly in light of the many police officers present and their direction that she follow them to headquarters. Although she was not formally arrested, her inability to leave was tantamount to an arrest under the Fourth Amendment. Since Gilles was exonerated but detained for no reason, she can seek damages for the unlawful detention.
2. While law enforcement officers are immune from suit if they acted reasonably under the circumstances, there's no immunity here if the jury believes Gilles' story, because any competent police officer would have allowed her to move on when it became clear that she was not committing any crime. Although there may have been reason to stop Gilles' vehicle initially, that does not mean the police can detain her long after the reasonable suspicion of criminal activity disappears.
Monday, December 17, 2007
Class action certified in parole board challenge
A Federal trial judge has certified a class action alleging that the State of New York is summarily denying parole to violent offenders without reviewing their parole applications on a case-by-case basis. The court also ruled that the case is not moot solely by virtue of the recent election of Gov. Eliot Spitzer.
The case is Graziano v. Pataki, 06 Civ. 480 (CLB), reported at 2007 U.S. Dist. LEXIS 89737 (S.D.N.Y. Dec. 3, 2007). According to the decision, the case "alleg[es] that Defendants unlawfully eliminated or curtailed the Parole Board's discretion when making parole release determinations for A-1 violent offenders." In trying to dismsiss the case, the State noted that Gov. George Pataki and his Parole Chairman left office when Eliot Spitzer was elected governor in 2006. But, according to Judge Brieant, that does not mean the allegedly unlawful policy has changed. That's because the Complaint alleges that "[t]he unofficial policy or practice of the Parole Board, as instigated by Pataki and executed by the Division of Parole under Parole Chairman Robert Dennison . . . unlawfully elimiate[s] or substantially curtail[s] the Parole Board's discretion when making parole release determinations concerning prisoners serving sentences for A-1 violent offenses." As Judge Brieant sees it, the change in office does not necessarily mean that the challenged practice died when Gov. Spitzer took office.
The State also argued that the plaintiffs cannot identify enough inmates to qualify for a class action. Judge Brieant disagreed, pointing to evidence that 540 prisoners may qualify for relief under this case. Assuming that 40 class-members qualify for a class action, see Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995), that's enough for the class action to move forward.
The case is Graziano v. Pataki, 06 Civ. 480 (CLB), reported at 2007 U.S. Dist. LEXIS 89737 (S.D.N.Y. Dec. 3, 2007). According to the decision, the case "alleg[es] that Defendants unlawfully eliminated or curtailed the Parole Board's discretion when making parole release determinations for A-1 violent offenders." In trying to dismsiss the case, the State noted that Gov. George Pataki and his Parole Chairman left office when Eliot Spitzer was elected governor in 2006. But, according to Judge Brieant, that does not mean the allegedly unlawful policy has changed. That's because the Complaint alleges that "[t]he unofficial policy or practice of the Parole Board, as instigated by Pataki and executed by the Division of Parole under Parole Chairman Robert Dennison . . . unlawfully elimiate[s] or substantially curtail[s] the Parole Board's discretion when making parole release determinations concerning prisoners serving sentences for A-1 violent offenses." As Judge Brieant sees it, the change in office does not necessarily mean that the challenged practice died when Gov. Spitzer took office.
The State also argued that the plaintiffs cannot identify enough inmates to qualify for a class action. Judge Brieant disagreed, pointing to evidence that 540 prisoners may qualify for relief under this case. Assuming that 40 class-members qualify for a class action, see Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995), that's enough for the class action to move forward.
Friday, December 14, 2007
How do we interpret the State's whistleblower law?
If the Second Circuit is asked to decide a complicated issue of State law, it sometimes certifies the issue for the New York Court of Appeals, which then finds an answer and returns the case to the Second Circuit. This happens because State law claims can be raised in Federal court so long as the plaintiff also seeks relief under a Federal statute. On the assumption that the State's highest court is better qualified to intrepret State laws, the Second Circuit certifies some issues for which there is no easy answer.
That happened in Reddington v. Staten Island University Hospital, decided on November 14. The plaintiff brought an action under the Federal age discrimination law and the State whistleblower statute. The age discrimination claim dropped away from the suit, leaving only the whistleblower claim. The trial court dismissed the whistleblower claim and Reddington asked the Second Circuit to reinstate the claim. But the Circuit court is unable to do so, at least for now.
The problem is that the New York whistleblower statute is not as broad as a Federal whistleblower claim that plaintiffs can bring against the government. These First Amendment claims allow the plaintiff to argue that she was fired for speaking out on matters of public concern. That option was not available to Reddington, so she sued under the State law. Under Labor Law sec. 741, an employer cannot, among other things, “take retaliatory action against any employee because the employee . . . discloses or threatens to disclose . . . an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.” The statute defines “employee” to mean “any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration.”
Was Reddington covered under the statute? That is, was she an "employee"? As the Second Circuit noted, "It is not plain on the face of the statute whether health care services may include services beyond the provision of medical treatment." Reddington did not render medical treatment. The Court stated, "The term 'health care services' might be read to encompass, for example, a hospital’s pharmacist, who would likely learn if a doctor at the hospital was illegally prescribing medication, or even a hospital’s insurance claims processor. But the legislative history does not clearly indicate whether the definition extends to someone like Reddington whose job description includes functions such as: (1) “[c]oordinat[ing] and develop[ing] with Chief Medical Officer and appropriate medical personnel[] services to be offered to international patients”; (2) “[d]istribut[ing], collect[ing,] and analyz[ing] patient satisfaction questionnaires”; and (3) “[m]anag[ing] and train[ing] personnel providing translation services.”
The question of whether someone like Reddingon may invoke the protections of the whistleblower law has never been resolved by the New York Court of Appeals. Reluctant to pass judgment on this fresh legal issue, the Second Circuit sent it to the State's highest court for a ruling. Once the State Court of Appeals decides this question, the case returns to the Second Circuit, which can dispose of the appeal once and for all.
That happened in Reddington v. Staten Island University Hospital, decided on November 14. The plaintiff brought an action under the Federal age discrimination law and the State whistleblower statute. The age discrimination claim dropped away from the suit, leaving only the whistleblower claim. The trial court dismissed the whistleblower claim and Reddington asked the Second Circuit to reinstate the claim. But the Circuit court is unable to do so, at least for now.
The problem is that the New York whistleblower statute is not as broad as a Federal whistleblower claim that plaintiffs can bring against the government. These First Amendment claims allow the plaintiff to argue that she was fired for speaking out on matters of public concern. That option was not available to Reddington, so she sued under the State law. Under Labor Law sec. 741, an employer cannot, among other things, “take retaliatory action against any employee because the employee . . . discloses or threatens to disclose . . . an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.” The statute defines “employee” to mean “any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration.”
Was Reddington covered under the statute? That is, was she an "employee"? As the Second Circuit noted, "It is not plain on the face of the statute whether health care services may include services beyond the provision of medical treatment." Reddington did not render medical treatment. The Court stated, "The term 'health care services' might be read to encompass, for example, a hospital’s pharmacist, who would likely learn if a doctor at the hospital was illegally prescribing medication, or even a hospital’s insurance claims processor. But the legislative history does not clearly indicate whether the definition extends to someone like Reddington whose job description includes functions such as: (1) “[c]oordinat[ing] and develop[ing] with Chief Medical Officer and appropriate medical personnel[] services to be offered to international patients”; (2) “[d]istribut[ing], collect[ing,] and analyz[ing] patient satisfaction questionnaires”; and (3) “[m]anag[ing] and train[ing] personnel providing translation services.”
The question of whether someone like Reddingon may invoke the protections of the whistleblower law has never been resolved by the New York Court of Appeals. Reluctant to pass judgment on this fresh legal issue, the Second Circuit sent it to the State's highest court for a ruling. Once the State Court of Appeals decides this question, the case returns to the Second Circuit, which can dispose of the appeal once and for all.
Wednesday, December 12, 2007
A point of clarification
Sometimes the Court of Appeals publishes a brief opinion to clarify a point of law or procedure that everyone assumes to be true even though, for some reason, the issue never previously came before the Court. That happened on December 12, when the Second Circuit issued Fielding v. Tollaksen.
The plaintiff filed a civil rights case pro se, or without a lawyer, claiming that her landlords caused her to be arrested for criminal michief after she allegedly damaged their property. After bringing the case, she asked the court for permission to amend the complaint to sue the local judges who handled her criminal and small claims case. Meanwhile, the defendants filed a motion to dismiss the case in its entirety. The district judge assigned to the case (Robinson) referred the motions to the magistrate judge (Yanthis), who issued a Report and Recommendation on the motion. Judge Yanthis recommended that Judge Robinson deny the motion to amend and also to dismiss the case. Judge Robinson next adopted Judge Yanthis' recommendation to dismiss the case, but he did not specifically rule on the recommendation to deny the motion to amend the complaint.
The question is, what happened to the magistrate judge's recommendation to deny the motion to amend the complaint? While required to do so, District Judge Robinson did not specifically address that part of Magistrate Judge Yanthis' Report and Recommendation. This issue never came up to the Court of Appeals before. But now it's settled. Applying similar rulings from around the country, the Second Circuit held that we can assume that the district court rejects any argument that came before him when he enters final judgment on the case. In other words, the lingering argument is presumed rejected.
The plaintiff filed a civil rights case pro se, or without a lawyer, claiming that her landlords caused her to be arrested for criminal michief after she allegedly damaged their property. After bringing the case, she asked the court for permission to amend the complaint to sue the local judges who handled her criminal and small claims case. Meanwhile, the defendants filed a motion to dismiss the case in its entirety. The district judge assigned to the case (Robinson) referred the motions to the magistrate judge (Yanthis), who issued a Report and Recommendation on the motion. Judge Yanthis recommended that Judge Robinson deny the motion to amend and also to dismiss the case. Judge Robinson next adopted Judge Yanthis' recommendation to dismiss the case, but he did not specifically rule on the recommendation to deny the motion to amend the complaint.
The question is, what happened to the magistrate judge's recommendation to deny the motion to amend the complaint? While required to do so, District Judge Robinson did not specifically address that part of Magistrate Judge Yanthis' Report and Recommendation. This issue never came up to the Court of Appeals before. But now it's settled. Applying similar rulings from around the country, the Second Circuit held that we can assume that the district court rejects any argument that came before him when he enters final judgment on the case. In other words, the lingering argument is presumed rejected.
Thursday, December 6, 2007
Circuit upholds "three-strikes-you're-out" filing rule
If you're an indigent inmate who wants to bring a lawsuit against the jailers, the court may allow you to proceed in forma pauperis, or as a poor person. This means that you don't have to pay filing fees. That entitlement can be taken away, however, if the court determines that you filed three frivolous lawsuits. Is the three-strikes-and-you're-out rule constitutional? The Court of Appeals says "yes."
The case is Polanco v. Hopkins, decided on December 6. Polanco brought a lawsuit alleging that he had been exposed to mold in a gym shower at Elmira Correctional Facility and was unjustly disciplined on two occasions at Auburn Correctional Facility. He also wanted the court to grant his "poor person's" petition. The Western District of New York denied that petition because Polanco had brought frivolous lawsuits in the past. Handling the case pro se on appeal, he argued that the Equal Protection Clause and the right of access to the courts makes the "three-strikes-and-you're-out" rule unconstitutional.
Joining the other circuits which have upheld the constitutionality of this limitation on "poor person's" petitions, the Second Circuit reasoned that in forma pauperis status is not a constitutional right, but a “congressionally created benefit” which can be “extended or limited by Congress.” In addition, this rule makes an exception for inmates who are in imminent danger
of serious physical safety. Under that exception, the court can still grant in forma pauperis status for a frequent frivolous filer. In sum, the law "presents no unconstitutional burden to a prisoner’s access to the courts: the provision does not prevent prisoner[s] . . . from filing civil actions, it merely prohibits [them] from enjoying [in forma pauperis] status.” The “imminent danger exception, which permits, in certain instances, successive filings that would otherwise be barred, extends access to the courts rather than restricts it. Accordingly, the imminent danger exception does not violate the rights of access to the courts granted by the equal protection guarantee of the Fifth Amendment."
The case is Polanco v. Hopkins, decided on December 6. Polanco brought a lawsuit alleging that he had been exposed to mold in a gym shower at Elmira Correctional Facility and was unjustly disciplined on two occasions at Auburn Correctional Facility. He also wanted the court to grant his "poor person's" petition. The Western District of New York denied that petition because Polanco had brought frivolous lawsuits in the past. Handling the case pro se on appeal, he argued that the Equal Protection Clause and the right of access to the courts makes the "three-strikes-and-you're-out" rule unconstitutional.
Joining the other circuits which have upheld the constitutionality of this limitation on "poor person's" petitions, the Second Circuit reasoned that in forma pauperis status is not a constitutional right, but a “congressionally created benefit” which can be “extended or limited by Congress.” In addition, this rule makes an exception for inmates who are in imminent danger
of serious physical safety. Under that exception, the court can still grant in forma pauperis status for a frequent frivolous filer. In sum, the law "presents no unconstitutional burden to a prisoner’s access to the courts: the provision does not prevent prisoner[s] . . . from filing civil actions, it merely prohibits [them] from enjoying [in forma pauperis] status.” The “imminent danger exception, which permits, in certain instances, successive filings that would otherwise be barred, extends access to the courts rather than restricts it. Accordingly, the imminent danger exception does not violate the rights of access to the courts granted by the equal protection guarantee of the Fifth Amendment."
Wednesday, December 5, 2007
NYC's parade restrictions violate the First Amendment
A federal judge last month ruled that New York City's law governing parades down Fifth Avenue violates the First Amendment prohibition against prior restraints because it allows municipal decisionmakers to deny permits for discretionary reasons.
The case is International Action Center v. City of New York, 05 Civ. 2880 (SHS), 2007 U.S. Dist. LEXIS 86532 (Nov. 27, 2007). The case was filed by a group that wanted to protest the Iraq war on Fifth Avenue, a popular avenue for parades. So popular, in fact, that the City in 2001 banned any new parades there. That means that anyone who got permits in the past can march there now, but new applicants are foreclosed from parades. The exception to that rule is that the City will grant a permit to a new applicant "for occasions of extraordinary public interest," defined as parades "celebrations organized by the City honoring the armed forces; sports achievements or championships; world leaders and extraordinary achievements of historic significance." The question is: does this law violate the First Amendment?
It does violate the First Amendment, at least parts of it. The district court ruled as follows:
1. The law is content-neutral, and therefore consistent with the First Amendment in that it does not favor one message over another. While the law prohibits parades by new applicants, that is a content-neutral regulation because all new applicants are prohibited, not just applicants who oppose the war. The rule also leaves open other parts of the city for parades, no matter how unique Fifth Avenue is for a parade route.
2. However, the regulation violates the First Amendment because it gives decisionmakers too much discretion to deny permits on the basis of content. The plaintiff argued that this exception to new parades -- based on extraordinary circumstances of historical import -- is not a neutral test, as the importance of an event is in the eye of the beholder. The Supreme Court has long held that objective factors must govern the permit process in First Amendment cases. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). However, the district court held that, as limited by the specific examples -- including sporting events and military celebrations -- the rule is sufficiently objective. The plaintiffs win the case, though, because in practice the City has been violating those specific guidelines, allowing some protest marches but not others to proceed down Fifth Avenue. In ignoring those guidelines, the City has unconstrained authority to grant or deny permits for any reason, including the content of the protest. As this prior restraint on First Amendment speech violates the principle of discretionless neutrality, the City loses.
The case is International Action Center v. City of New York, 05 Civ. 2880 (SHS), 2007 U.S. Dist. LEXIS 86532 (Nov. 27, 2007). The case was filed by a group that wanted to protest the Iraq war on Fifth Avenue, a popular avenue for parades. So popular, in fact, that the City in 2001 banned any new parades there. That means that anyone who got permits in the past can march there now, but new applicants are foreclosed from parades. The exception to that rule is that the City will grant a permit to a new applicant "for occasions of extraordinary public interest," defined as parades "celebrations organized by the City honoring the armed forces; sports achievements or championships; world leaders and extraordinary achievements of historic significance." The question is: does this law violate the First Amendment?
It does violate the First Amendment, at least parts of it. The district court ruled as follows:
1. The law is content-neutral, and therefore consistent with the First Amendment in that it does not favor one message over another. While the law prohibits parades by new applicants, that is a content-neutral regulation because all new applicants are prohibited, not just applicants who oppose the war. The rule also leaves open other parts of the city for parades, no matter how unique Fifth Avenue is for a parade route.
2. However, the regulation violates the First Amendment because it gives decisionmakers too much discretion to deny permits on the basis of content. The plaintiff argued that this exception to new parades -- based on extraordinary circumstances of historical import -- is not a neutral test, as the importance of an event is in the eye of the beholder. The Supreme Court has long held that objective factors must govern the permit process in First Amendment cases. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). However, the district court held that, as limited by the specific examples -- including sporting events and military celebrations -- the rule is sufficiently objective. The plaintiffs win the case, though, because in practice the City has been violating those specific guidelines, allowing some protest marches but not others to proceed down Fifth Avenue. In ignoring those guidelines, the City has unconstrained authority to grant or deny permits for any reason, including the content of the protest. As this prior restraint on First Amendment speech violates the principle of discretionless neutrality, the City loses.
Saturday, December 1, 2007
The right to hang around
A recent decision from the New York Court of Appeals confirms the right to hang around without fear of an arrest for disorderly conduct. In People v. Jones, decided on November 20, 2007, threw out a disorderly conduct conviction because the arresting officer was unable to allege that the defendant caused public inconvenience in standing at 42d Street and Seventh Avenue in Manhattan.
The New York Criminal Procedure Law requires the arresting officer to set forth a prima facie case for the alleged criminal violation in the document that triggers the arrest. For disorderly conduct cases, the officer must allege that the defendant, "with intent to cause public invonvenience, annoyance and alarm, or recklessly create a risk thereof . . . obstruct vehicular or pedestrian traffic." But in this case, all the defendant did was to stand around on the street corner and refuse to make room for other pedestrians. This happened at 2:01 a.m., by the way. As the arresting officer explained in writing that
This is not disorderly conduct, according to the Court of Appeals. "Nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m., had the intent to or recklessly created a risk of causing 'public inconvenience, annoyance or alarm.' The conduct sought to be deterred under the statute is 'considerably more serious than the apparently innocent' conduct of defendant here." Ergo, unless you are bothering other people, you have the right to hang around.
The New York Criminal Procedure Law requires the arresting officer to set forth a prima facie case for the alleged criminal violation in the document that triggers the arrest. For disorderly conduct cases, the officer must allege that the defendant, "with intent to cause public invonvenience, annoyance and alarm, or recklessly create a risk thereof . . . obstruct vehicular or pedestrian traffic." But in this case, all the defendant did was to stand around on the street corner and refuse to make room for other pedestrians. This happened at 2:01 a.m., by the way. As the arresting officer explained in writing that
he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic] . . . deponent directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run.
This is not disorderly conduct, according to the Court of Appeals. "Nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m., had the intent to or recklessly created a risk of causing 'public inconvenience, annoyance or alarm.' The conduct sought to be deterred under the statute is 'considerably more serious than the apparently innocent' conduct of defendant here." Ergo, unless you are bothering other people, you have the right to hang around.
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