Corrections officers cannot belong to the Outlaws Motorcycle Club

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.

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.

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.

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.

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.

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."

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 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

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.

No judicial disqualification in freelance class-action case

This is not a civil rights case, but it's too interesting to ignore. A class action lawsuit filed on behalf of freelance writers suing certain publishing companies found its way to the Court of Appeals, where the judges on the panel realized they have a slight personal interest in the outcome, probably since one of the defendants is West Publishing, which publishes a variety of legal materials. The Second Circuit tackled this potential ethical issue head-on, determining that two of the judges ruling on the settlement can decide the case on the merits.

The class action alleged that freelance writers were not being sufficiently compensated when publishers later reproduced their material without their consent. The Supreme Court in 2001 addressed this issue in New York Times v. Tasini, 533 U.S. 483. The district court approved the settlement but, since some class members objected, the case went to the Second Circuit. That's where things get interesting.

The Court of Appeals, like most courts, operates without much sunlight until it issues a ruling. We don't know what the judges say to each other or how much difficulty the judges had in reaching a decision. But in Re: Literary Works in Electronic Databases Copyright Litigation, issued on November 29, Judge Walker explained why the Court determined to reach a decision in this case even though the judges have a small financial stake in the outcome of the case. Judge Walker wrote:

On March 6, 2007, after extensive pre-argument preparation, Judge Winter and I realized that there was a high probability that we held copyrights in works, such as law review articles and speeches, reproduced on defendants' databases. At oral argument on March 7, we publicly stated in open court that we would forego any financial interest in the settlement that we could possibly have now or in the future. No party brought to our attention that, because the claims period had expired without either of us asserting a claim, we were at that point ineligible to recover anything in the class action in any event.

The Court then asked the Committee on Codes of Conduct of the Judicial Conference for an opinion on whether Judges Winter and Walker should recuse themselves from the case. The committee answered in the affirmative and said they should not serve on the panel. Disagreeing with that opinion, Judges Walker and Winter decided to rule on the case anyway, reasoning that the law governing recusal is "at least ambiguous as to whether it should apply to judges who are parties to a lawsuit simply because they possess a small financial interest in one of the parties or in the subject matter of the litigation."

In ruling that recusal is not necessary in this case, the judges noted that most of their colleagues on the Second Circuit and probably all members of the Supreme Court would have at least some financial interest in a case like this, and "a reasonable person would not have know that we were class members prior to March 6, when our pre-argument preparation led us to that conclusion." Moreover, the judges told the parties in open court that they were going to forego any rewards from the class action settlement. The decision on the merits, also issued on November 29, is here.

Sexual harassment case against Fordham goes forward

Not that we're keeping score, but for the second time in two days, the Second Circuit has reversed the dismissal of an employment discrimination case, sending the case back to the district court for further proceedings. The moral of the story is that supervisors who watch pornography in the workplace are asking for a lawsuit.

The case is Patane v. Clark, decided on November 28. As alleged in her Complaint, Patane was a secretary at Fordham University, where one of her supervisors, Clark, "engaged in inapporpriate sexually-charged conduct in the workplace," including spending substantial time watching pornography on the office television and using Patane's computer to view hard-core pornographic websites. Patane also had to open Clark's mail, which included pornographic videotapes. Patane complained to a college EEO official who did nothing other than pass along the complaint to a college administrator. Clark, meanwhile, retaliated against Patane because of her complaints, removing nearly all her job responsibilities and keeping her out of the "loop" on office matters. One of Clark's friends furthered that campaign of retaliation when he became Chairman of an academic department, issuing a pretexual performance evaluation and attempting disciplinary action against her. The district court dismissed the case under Rule 12(b) because the Complaint failed to state a claim.

The Court of Appeals (Calabresi, Wesley and Brieant) disagreed, but not before pausing to affirm the district court's holding that the Complaint did not properly allege gender discrimination. Instead, drawing a subtle distinction, the Court of Appeals found that Patane did properly plead a hostile work environment based on gender. The mere presence of pornography in the workplace is enough to create a hostile work environment, even if, as the district court noted, plaintiff was not forced to watch it. Since some of the pornography was in the mail that Patane opened and it was also in her own computer, she has a viable sexual harassment claim. Nor does it matter that men were also exposed the to pornography in the workplace. It's offensive to women, and that's enough for a sexual harassment claim.

Patane also has a viable retaliation claim. We can infer that her immediate supervisor, Clark, knew about Patane's complaints about the harassment since "she complained about Clark's conduct to a Fordham employee whose job it was to investigate and receive such complaints." We also assume that "general corporate knowledge" about the complaints brought them to Clark's attention. While the district court ruled that Patane's job restrictions in the wake of her complaints were not sufficiently severe for a lawsuit, they still qualify as "adverse employment actions" because Clark removed nearly all her job duties. That's enough under Second Circuit precedent. It's also enough under a recent Supreme Court case, Burlington N. & Santa Fe v. White, 126 S.Ct. 2405 (2006), which holds that an "adverse employment action" consists of an employer response that would dissuade any reasonable employee from filing an internal complaint. The twist here is that, although Patane did complain a second time, holding the second complaint against her "would require that no plaintiff who makes a second complaint about harassment could ever have been retaliated against for an earlier complaint."

Dual race and gender harassment case goes to trial

The rare case alleging racial and gender harassment is going to trial in the Southern District, now that the Court of Appeals has reversed summary judgment in this employment discrimination case.

The case is Williams v. Consolidated Edison of New York, decided on November 27. The Court of Appeals issued this decision as a summary order, an odd choice considering it reversed summary judgment and the case raises some interesting legal issues. The precedential value of summary orders is limited, but it's always worth noting how the Second Circuit views these cases. The Court summarized the nature of the hostile work environment as follows:

Williams provided evidence of the following treatment or conduct over the course of approximately three years at the company: (1) one supervisor, John Dekanchuk, referred to Williams as a “black bitch” on more than one occasion and Fernandez, another supervisor, referred to her as a “bitch”; (2) Dekanchuk directed gender-based verbal abuse at Williams and Howe; (3) Dekanchuk insinuated that Williams and Oliver Jones were having a sexual relationship; (4) several male co-workers repeatedly used offensive and derogatory terms for women, such as “bitch” and “cunt”; (5) women encountered pornographic materials in the workplace on at least several occasions; (6) Williams and Jackie Howe experienced tampering and sabotage of their equipment; (7) male co-workers were unwelcoming to women and commented that they did not belong in the Brooklyn Flush unit; (8) male workers sought to avoid shifts with women and supervisors would honor their requests; (9) at least one employee made comments to the effect that supervisors should let the men know when women were menstruating; and (10) women were not provided with adequate locker room facilities for months, until October 2001, although the men were. In addition, one of Ms. Williams’s coworkers, Susan Kartell, states that she, too, was sexually harassed, including that she was called a “bitch” and a “cunt” on a regular basis, that supervisors ignored her complaints about this verbal abuse, and that one supervisor threatened to suspend her from her job if she continued to complain.

If credited by the jury, this evidence supports a finding that Williams was subjected to a hostile work environment on account of her gender. The Court of Appeals also found that the jury could find that Williams was subjected to a racially hostile work environment: "One deponent testified that Dekanchuk and Steve Raft, a coworker, used the word 'nigger' and that other employees used racially offensive language such as 'boy' to talk down to black employees." This case raises a few issues that surface from time to time: (1) dual sexual and racial hostile work environment claims for the same plaintiff and (2) the finding that co-workers who use the word "nigger" automatically create a hostile work environment.

The plaintiff may hold Consolidated Edison liable for this harassment. This portion of the decision is most interesting in that, while the company did not completely ignore the complaints of workplace harassment, it did not take the complaints seriously enough. On the racial harassment, "several of Williams’s co-workers verified her allegations that men sought to avoid working with women and supervisors honored their requests and that African-American employees were sent more frequently to high-crime neighborhoods. Yet inexplicably, the report summarizing the investigation did not discuss these co-worker accounts in reaching its conclusion that there was no record of discriminatory work assignments." Without any evidence that Con Ed followed up on this information, the jury can find that the company failed to take appropriate remedial action in response to Williams's complaints. The racial harassment can also be imputed to Con Edison because the human resources officer arguably performed a perfunctory investigation into Williams' complaint.

This issue of the adequacy of the employer's response on the harassment claims is ultimately for the jury: "although “[a] fact-finder may well conclude that [the employer]’s responses were reasonable and adequate,” we cannot “say as a matter of law that the record evidence compels only that result.”

Border searches following Islamic conference in Toronto did not violate Constitution

The terror threat continues to pre-occupy the Second Circuit Court of Appeals. This time it ruled that innocent Muslims who were searched at the U.S.-Canadian border following a three-day Islamic conference could not challenge the legality of those searches under the U.S. Constitution.

The case is Tabaa v. Chertoff, decided on November 26. It started when the Department of Homeland Security learned about an Islamic conference in Toronto scheduled for the final week of 2004. The government learned that individuals who were associated with terrorist organizations would be in attendance and that the conference would serve as a possible meeting place for terrorists. But not all in attendance (approximately 13,000) were terrorists. The five plaintiffs who were detained and searched upon entering the United States had no criminal records and the government had no reasonable suspicion that they had any terrorist ties. Since they attended the conference, however, they were subjected to extensive questioning about the conference and their alliances and they were also frisked and searched. Some claimed physical abuse during the detention. While the database no longer contains their fingerprints or photographs, the government continues to hold onto the plaintiffs' identifying information, i.e., their names, date of birth and address.

The Second Circuit held that the law provides no remedy for these plaintiffs, not even expungement of their personal information from the database. Although the Fourth Amendment prohibits unreasonable searches and seizures, the Supreme Court has granted the Federal government broad authority to conduct routine searches at the border. The question is whether this search is "routine" (presumed legal) or sufficiently invasive to require a showing of "reasonable suspicion" before conducting the search. While there may have been a stigma associated with aspects of the search, overall the search was not materially different from other border searches, and pat-down searches and fingerprinting/photographing are not too invasive in this context. While the searches lasted from 4-6 hours, that is more like the (legal) one-hours delay than the (illegal) overnight delays.

The cumulative effect of the search procedures at the border also does not violate the Constitution. The Court reasoned:

And while we leave open the possibility that in some circumstances the cumulative effect of several routine search methods could render an overall search non-routine, we do not find that to be the case here. While plaintiffs were undoubtedly made uncomfortable and angry by the searches, and they may understandably have felt stigmatized, their personal privacy was not invaded in the same way as it would have been had they been subject to a body cavity or strip search, or involuntary x-ray. Because the decisive factor in the analysis is invasiveness of privacy – not overall inconvenience – we find that CBP’s searches of plaintiffs, considered in their entirety, were routine in the border context, albeit near the outer limits of what is permissible absent reasonable suspicion.

The plaintiffs also claimed that the searches violated their First Amendment right of association. The Second Circuit agreed that the plaintiffs did suffer a "cognizable burden" in that the searches may deter them from attending similar conferences in the future. But since the government had a compelling need for the searches (i.e., deterring a terrorist attack), the plaintiffs' rights give way to the need for border security. As it argued that known terrorists were going to attend the conference, the government also proved there was no other reasonable way to further this compelling interest other than to search everyone entering the United States. For you constitutional scholars out there, the Court of Appeals applied the Supreme Court's ruling seminal ruling on freedom of association, Roberts v. United States Jaycees, 468 U.s. 609 (1984), in this context. For these reasons, the Second Circuit also rejected the plaintiffs' argument that the searches violated their religious freedom.

A billion dollars in punitive damages!

Even huge punitive damages awards in favor of a multinational corporation raise constitutional questions. If the award is too large, it violates constitutional due process. That was the argument in Motorola Credit Corp. v. Uzan, decided by the Court of Appeals on November 21.

The opening paragraph sets the stage for international intrigue, lies and money:

In this appeal, the Uzan family of Turkey challenges the district court’s award of $1 billion in punitive damages against it. The court based the punitive damages award on its findings that appellants “engaged in a coordinated campaign of lies and misrepresentations in order to swindle Motorola of more than $2 billion” and that, “threatened with exposure, [appellants] resorted not only to further lies and corporate manipulations but even to obstruction of justice and, ultimately, misrepresentations to this Court.”

The case grew out of a business relationship between Motorola/Nokia and one of the world's wealthiest families, situated in the country of Turkey, which controls over 100 companies. As explained by the Second Circuit, "the district court concluded that defendants fraudulently obtained loans from Motorola for more than $2 billion and from Nokia for approximately $800 million, purportedly to finance the development of the Uzans’ telecommunications business in the Telsim company."

The case was tried in the Southern District of New York, but the court applied Illinois law. After finding that punitive damages award was appropriate under Illinois law, the Second Circuit analyzed it under the Due Process Clause. While the Clause does not speak to punitive damages, the Supreme Court has repeatedly held that grossly-excessive punitive damages awards can violate due process. The standard, under BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
(1996) contains the following guideposts:

(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award; and (3) the difference between the punitive damages awarded by the [fact-finder] and the civil penalties authorized or imposed in comparable cases.

After trial, the district court awarded $2,132,896,905.66 in compensatory damages. It awarded another $2 billion in punitive damages. The Second Circuit remanded the punitive damages award because it was too high. So the district court cut it in half. Hence this appeal.

To say the least, a billion dollar punitive damages award would be excessive for most defendants. Not here. In this case, the Court of Appeals focused on the reprehensibility of defendants' misconduct. That Motorola did not suffer physical harm did not matter. In upholding the $1 billion award, the Court of Appeals credited the district court's findings: "[I]n the broader sense, it is hard to imagine financial misconduct that was more reprehensible than that of the defendants here, perpetrating at an international level an immensely complicated fraud that inflicted severe economic injury and sought to make a mockery of the judicial proceedings in several different countries."

SUNY Albany's student fee guidelines violate the First Amendment

Conservative students at SUNY Albany brought a First Amendment challenge to the university's rules governing the allocation of student activity fees. The students (who belong to the College Action Leadership League of New York) objected that the student government allowed their classmates to vote in a non-binding referendum how much money to allocate for campus organizations. Since this procedure might affect how much money the student government would budget for certain organizations, it violates the First Amendment requirement that the government cannot discriminate on the basis of political viewpoint.

The case is Amidon v. Student Association of the State University of New York, decided on November 20. On its face, the case may not seem to have much of an impact, but the ruling has important consequences in the ever-complicated world of First Amendment law and the requirement that government actors regulate speech according to viewpoint-neutral principles.
At its most simplistic level, this means that, if the student government is allocating money for an anti-war group, it cannot deny money for a pro-war group based on the latter's viewpoint. That's sort of what happened here, as the student-plaintiffs belong to a conservative policy organization and they seem to distinguish themselves from New York Public Interest Research Group (NYPIRG), which has a real presence on college campuses.

The principle of viewpoint neutrality is harder to apply than it looks. SUNY Albany was allowing students to vote on how much money goes to a campus organization. But this vote was non-binding; the student government was free to disregard it. The student government could only use the referenda for advice regarding the appropriate level of funding, not whether to fund the organization at all. So why does the procedure violate the rules of viewpoint neutrality? Because, according to the Second Circuit, "protected speech will be chilled when school officials 'cast disapproval on particular viewpoints of its students . . . in one of the vital centers for the Nation's intellectual life, its college and university campuses.'" Moreover, according to the Second Circuit,

A university’s viewpoint-discriminatory decision respecting how much funding to allocate to a [recognized student organization] raises the same concerns as a viewpoint-discriminatory decision respecting whether to fund a [recognized student organization] at all. The level of funding a group receives may serve as an expression of approval or disapproval of the group’s message. And the amount allocated to a group, whether a lot or a little, can skew debate on issues on which the group advocates a position. In this context, a comparatively low level of funding may not be much different than a complete denial of funding.

Since a majority of the students in theory could vote to give an unpopular student organization less money than other political organizations, the rules at SUNY Albany raise the substantial risk that the unpopular organization will get shafted because of its viewpoint. This is especially so since the student government could take the non-binding student vote into account in allocating less money to an organization. That violates the First Amendment, and SUNY Albany's procedures are stricken. Those of you reading this who are not familiar with the First Amendment may wonder how a theoretical risk can give rise to a real constitutional issue. But that's how the First Amendment works.

This case raises a number of issues which have not surfaced in the Second Circuit in years. Since the Supreme Court has issued several important First Amendment/viewpoint discrimination cases in the last decade or so, this case gave the Court of Appeals an opportunity to re-consider this complicated doctrine. For example, and this may be an issue that only First Amendment lawyers can love, the Second Circuit held for the first time that viewpoint neutrality prohibits the government from maintaining discretionary speech rules (which create the possibility that decisionmakers will deny or inhibit speech for personal or inappropriate reasons). On this point, the Second Circuit follows the lead of the Seventh Circuit, which in turn applied a Supreme Court ruling, Board of Regents v. Southworth, 529 U.S. 217 (2000).

Jury wheel at the White Plains courthouse is constitutional

A capital murder case in the White Plains courthouse of the Southern District of New York led the defendants to challenge the fairness of the jury selection procedure. Racial minorities are under-represented in these jury pool. But, the trial court held, that does not mean the defendants will be denied a fair trial. Motion to stay the trial denied.

The case is United States v. Barnes, 04 Cr. 186 (SCR), reported at 2007 U.S. Dist. LEXIS 77426 (S.D.N.Y. Oct. 15, 2007). Judge Robinson summarized the findings of a report analyzing the jury pool in the northern counties of the Southern District of New York. While most media coverage of SDNY proceedings focus on the heralded Foley Square courthouse in downtown Manhattan, the White Plains courthouse in suburban Westchester County is no slouch, both architecturally and in terms of the quality of the Federal bench. But the report, conducted by law professors, found the following statistical anomalies:

1. Whites comprise 71.56 percent of the population in the northern counties but make up 78.10 percent of the qualified jury wheel.

2. Blacks comprise 10.66 percent of the population but make up 7.42 percent of the qualified jury wheel.

3. Hispanics comprise 12.19 percent of the population but make up 8.96 percent of the qualfied jury pool.

In other words, according to the report, "White-Americans are therefore overrepresented by approximately 5 percent in the Qualified Jury Pool relative to their voting age population, while African-Americans ar underrepresented by 2.8 percent and Hispanic-Americans are under-represented by 2.3 percent."

Citing the Sixth Amendment's guarantee of a jury selected from a fair cross-section of the community, these statistics prompted the defendants to move to stay the trial on the grounds that the SDNY is not properly selecting juries for the White Plains courthouse. The trial court disagreed, applying a statistical analysis called "absolute disparity" in finding that the defendant will not receive an unfair trial, reasoning as follows:

African-Americans are underrepresented by approximately 2.8 percent and Hispanic Americans by approximately 2.3 percent. This would require the addtion of between one and two African-Americans and one and two Hispanic-Americans to a 60 person venire in ordder to reach proportionality. Similar figures have not been repeatedly held to not support a fair cross-section claim.

Non-practicing pro se attorney gets another chance to draft her ADA complaint

We all know the basic rules about pro se pleadings: courts will give pro se litigants the benefit of the doubt and broadly read their papers in the understanding that they are not lawyers and therefore cannot always articulate their claims properly. But what about pro se litigants who are non-practicing attorneys? Do they get special treatment from the courts also?

The answer seems to be yes. The case is Smith v. New York Presbyterian Hospital, decided on November 15. This is a summary order, i.e., an unpublished opinion that generally can't be cited as precedential authority. But its worth noting that the Court of Appeals reversed the dismissal of this Americans with Disabilities Act case. The district court ruled that Smith did not properly allege a connection between her disability and her mistreatment at work. The Second Circuit sent the case back to give Smith another shot at drafting her Complaint properly.

Had Smith been like any other pro se litigant, this holding would be unremarkable. But she isn't. As the Second Circuit reasoned, "While licensed attorneys proceeding pro se need not be afforded the same pleading consideration as in [other cases holding pro se attorneys to the usual high standards], where, as in this case, the plaintiff has not practiced law for years, largely due to psychiatric impairments that are the basis for her disability claim, there is no reason to distinguish her from pro se plaintiffs generally."

No vicarious liability against Vermont church for priest's sexual abuse

A "John Doe" sued a church in Vermont alleging that he was sexually abused by a priest. He sued the church and the priest, who defaulted and presumably lost the case for failure to defend himself. Doe then went after the church, maybe because the priest was judgment-proof and had no money to pay out damages. The problem is employers are not always legally responsible for the misconduct of their employees. What to do?

The case is Doe v. Newbury Bible Church, decided on November 14. This was the second time this case landed in the Court of Appeals. The first time around, in 2006, the Second Circuit ruled against Doe because there was no evidence that the church knew or had reason to know that the priest had a propensity for sexual misconduct. That decision is reported at 445 F.3d 594 (2d Cir. 2006). But the Court of Appeals asked the Vermont Supreme Court to decide whether the law in that State would allow Doe to sue the Church by virtue of the priest's employment there. The Vermont Supreme Court answered "no." This dooms the case in the Second Circuit.

The issue for the Vermont Supreme Court was whether, under Vermont law, "a church [is] subject to vicarious liability for tortious acts of its pastor under the Restatement (Second) of Agency section 219(2)(d) if the pastor was allegedly 'aided in accomplishing the tort by the existence of the agency relation' with the church." In other words, was the priest able to abuse Doe as a result of his relationship with the church? In a prior case in Vermont, the State court there ruled that a county sheriff's department could be vicariously liable for sexual misconduct by a police officer. But, the Vermont Supreme Court ruled, that is quite different from cases involving sexual abuse by a priest at a church. while police cases involve "the extraordinary power that a law enforcement officer has over a citizen," the Vermont courts apparently deem the sexual abuse scenario a different circumstance entirely. Adopting the views of the Vermont courts, the Second Circuit dismissed Doe's case against the church.

Cancelling teen dances at nightclub may violate due process

A proprieter in upstate New York opened a dance club called Fun Quest which immediately became a big hit with local teenagers, who overcrowded the place. Such a hit, in fact, that the Town Board amended the special use permit to prohibit teenage dances. As local officials debated what to do about this problem, the Town Supervisor allegedly made racial comments about Fun Quest's black patrons. The constitutional dispute wound up in the Court of Appeals, which held that Fun Quest has a case.

The case is Cine SK8 v. Town of Henrietta, decided on November 8. After the district court granted dismissed the case on summary judgment, the Second Circuit reinstated the case, outlining how parties in zoning disputes can prevail in a constitutional challenge. Here's what the Court of Appeals (Feinberg, Calabresi and Wesley) did:

1. On the substantive due process claim, Fun Quest arguably had a property interest in the permit which Town officials subsequently amended to prohibit teen dances. It's not easy to show a property interest in zoning cases (which is why many of these cases are sent to State court), but here, Fun Quest's property right was "vested" since it did receive the permit and also invested $2.3 million in renovations in reliance on that permit.

2. The due process claim is also viable because the government had arguably revoked the permit for arbitrary reasons. While this is also a difficult standard to meet, Fun Quest gets a trial on this issue because of the alleged racial animus which motivated the Town Supervisor to oppose the teen dances. What makes this case unique is the Second Circuit's holding that the improper views of one member of a municipal board can make the Town liable even if the rest of the board did not share those views. Unlike other courts, the Second Circuit "has never adopted the rule that a plaintiff must demonstrate that a majority of a public body acted with racial animus or in an otherwise unconstitutional maner in order for that plaintiff to hold the municipality liable for constitutional violations." Instead, to prevail, the municipality must prove that a majority of the board acted for legitimate reasons. In other words, the illicit views of one member creates a presumption that the entire board acted improperly. Not only does the Second Circuit's standard take into account the secretive nature of racism, but it comports with employment discrimination cases holding that the impermissible bias of one decisionmaker can infect the entire process. In this case, at least three members of the board used racial code words, i.e., "city kids," in opposing teen dancing at Fun Quest. That's enought for a trial on this issue.

3. Another reason the plaintiffs get a trial here is the irregular process leading up to the permit amendment. A planning dispute tainted by procedural irregularity is enough to show arbitrary treatment in zoning/due process cases. Here, the Town Board had no lawful authority to amend the permit (it can only suspend or revoke them) and the Board failed to provide Fun Quest any procedural rights at the hearing (such as cross-examination of hostile audience members or the chance to respond to incendiary allegations at the hearing). This allows the substantive due process claim to go forward at trial.

When is an EEOC charge a "charge"?

The U.S. Supreme Court is reviewing a Second Circuit ruling which broadly interprets the employment discrimination laws to allow plaintiffs to seek relief without technically complying with the requirements governing the filing of an administrative complaint. The case arises at a time when scholars are criticizing the Supreme Court for interpreting the civil rights laws in an overly technical manner.

The case is Federal Express v. Holowecki, 440 F.3d 558 (2d Cir. 2006). Last year, the Second Circuit reinstated an age discrimination lawsuit even though the plaintiff did not formally file the administrative complaint with the Equal Employment Opportunity Commission, which reviews and tries to settle discrimination cases before the plaintiff brings the lawsuit. Without first filing a complaint with the EEOC, the plaintiff cannot bring the lawsuit.

In Holowecki, the plaintiff instead filled out a lengthy questionaire with the EEOC outlining the nature of the case. The Second Circuit equated the questionaire with the formal charge that plaintiffs normally file with the EEOC. The issue may seem overly technical, but if the plaintiff neglects to file a formal charge within 300 days of the discrimination, he cannot bring the lawsuit in court. If the questionaire -- which elicits all the information the EEOC needs to process the case at the administrative level -- qualifies as a "charge," then doing so within 300 days preserves the plaintiff's right to bring the lawsuit later on.

The best argument in favor of dismissing Holowecki's case was that since he did not file a formal charge of discrimination, Federal Express did not know that he had gone to the EEOC. One of the reasons for the EEOC process is to allow the employer to investigate the allegations and possibly settle the case before it becomes a full-blown lawsuit. But the Second Circuit said that the real question is whether Holowecki signaled his intent to proceed with a charge of discrimination in completing the questionaire.

Oral argument at the Supreme Court on this case was held yesterday. According to a web site that tracks the Supreme Court, "Although the dispute in this case was nominally between defendant Fed Ex and plaintiff Holowecki, it was evident at oral argument that the Court held the EEOC at fault for creating the dispute both by issuing unclear guidance regarding what constitutes a charge of age discrimination and by implementing inconsistent enforcement practices under its regulations." Indeed, press reports suggest that Holowecki will prevail at the Supreme Court.

"Monell, Monell, Monell"

I was in court once and an attorney was trying to convince the judge that he had a great case. The judge kept interrupting the lawyer, telling him, "Monell, Monell, Monell." Non-lawyers would not know what the judge meant, but any lawyer in the room would understand what the court was trying to convey: the lawyer was suing the wrong entity.


Monell is shorthand for a legal principle under the federal civil rights laws, particularly what we call Section 1983, which is the law that allows us to bring suit for a civil rights violation. Monell v. Department of Social Services, 436 U.S. 658 (1978), was the Supreme Court ruling that outlined when you can sue a municipality under that law. Generally, you can't sue a municipality, such as town, village, county or school district, for something that a government employee did. In other words, there is no respondeat superior in Section 1983 litigation. There are ways around this, but it's not easy. That was the lesson in Reynolds v. DeBuono, decided by the Court of Appeals on October 31, 2007.

In Reynolds, the plaintiff alleged that the State and City of New York were not properly enforcing the new welfare rules enacted in 1996. The district court agreed, finding that welfare recipients were being denied benefits improperly. The State and City were found liable for this, but only the State, and not the City, appealed. The question was whether the State was liable for the City's derelictions. In a lengthy opinion that provides a good primer on the scope of Monell liability, the Court of Appeals said no, primarily for two reasons.

First, and this is a highly technical issue, the Court joined other Circuits in holding that Monell's prohibition against respondeat superior liability applies not only when the plaintiffs seek money damages but also injunctive relief. The Court noted that this view is not unanimous around the Circuits, so the Supreme Court may someday resolve this issue. Since the Second Circuit resolved that issue in this case, that ends the debate in these parts.

Second, while Monell recognizes municipal liability where decisionmakers fail to supervise their subordinates, that's always been a difficult way to get around Monell. The plaintiff has to show that the high-ranking supervisors knew to a moral certainty that their failure to supervise would result in a rights violation. But here, according to the Court of Appeals, it was not enough for the plaintiffs to argue that the State had a "non-delegable duty" to ensure that the City was in compliance with the welfare laws. That's no different from asserting respondeat superior liability, the Court held, because it would make the State automatically responsible for the City's failures. Since plaintiffs could not otherwise show that the City's welfare policies were patently inadequate, requiring the State to intervene to ensure that the welfare policies were fairly administered, their inadequate supervision argument -- theoretically another way to get around Monell -- failed.

The moral of the story is that, once again, efforts to get around Monell's general prohibition against suing superior officers or municipalities are not easy, even when the subordinate officers have utterly failed in respecting civil rights. Relief in these cases is against the subordinate officers in their personal capacities, not the municipalities.

Doctor with staff privileges at hospital may sue under Title VII

The employment discrimination laws make it illegal to treat an employee unfairly because of race, gender, religion and other characteristics. Except that you have to be an employee in order to bring a case under Title VII, which is the statute which protects you from discriminatory treatment. If you are an independent contractor, you have no case.

That issue arose in Salamon v. Our Lady of Victory Hospital, decided on October 29. Salamon is a doctor who claimed sexual harassment and retaliation in the workplace. The trial court dismissed the case because Dr. Salamon was not an employee but an independent contractor. The Court of Appeals reversed, sending the case back for trial.

UPDATE: as of the morning of October 30, this opinion has been withdrawn without explanation. An amended opinion will follow.

The general rule is that someone is an "employee" if the employer exercises sufficient control over her workday. As the Court of Appeals puts it: "To be sure, staff physicians like Salamon have been classified as independent contractors largely because of the extent to which they control their own practices even while affiliated with a hospital. But relationships between staff physicians and the hospitals in which they work may differ. A physician's professional independence -- his or her degree of control over the manner and means of the work -- may vary. In effect, the amount of control a putative employer exerts relative to the employee necessarily falls somewhere along a continuum, an independent contractor at one end, an employee at the other."

So which is it? Was Dr. Salamon an employee or an independent contractor? She had staff privileges at the hospital and relied on its instrumentalities for her day-to-day functions and underwent hospital supervision, particularly from the quality control department. Sounds like she was an employee because the hospital controlled her employment. Except that she had some measure of control over her workday as, for example, "she was free to set her own hours and maintained her own patient load and schedule, subject to the availability of the endoscopy equipment, which the Hospital controlled. She determined which patients to see and treat, and whether or not to admit them to OLV (or another hospital). She was allowed to maintain staff privileges at other hospitals, and did, though most of her practice was at OLV. Salamon was not paid a salary, wages, benefits, or any other monetary compensation by OLV."

The Supreme Court has outlined the 13 factors in determining whether someone is an employee or independent contractor:

[1] the hiring party's right to control the manner and means by which the product is accomplished; [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party;[11] whether the hiring party is in business; [12] the provision of employee benefits; [13] and the tax treatment of the hired party.

These factors (often applied in these cases), however, may not satisfy Title VII's proviso that the employment discrimination laws be interpreted liberally. The Court of Appeals noted that while the 13 factors are useful in resolving these cases, they are not always consistent with Title VII. The Court reasoned: "The most important factor in determining the existence of an employment relationship is that control or right of control by the employer which characterizes the relation of employer and employee and differentiates the employee or servant from the independent contractor."

Under that model, the question could go either way for someone like Dr. Salamon. As the hospital did assert control over her employment through its quality control department which monitored how she was treating patients, and she faced the possibility of negative peer reviews if she did not satisfy hospital standards, she might be an employee. Since a jury has to resolve whether the hospital exercised enough control over her employment, Dr. Salamon is entitled to a trial, and summary judgment is reversed.

Soliciting sex from underage law enforcement decoys is against the law

It is against Federal law to attempt to solicit sex from minors. In a ruling handed down on October 22, the Court of Appeals (Walker, Calabresi and Sack) ruled that this law is violated even when a law enforcement decoy is posing as a 13 year-old girl.

The case is U.S. v. Gagliardi. The statement of facts reprises the usual sting operation in which older men solicit sex over the Internet, only to find that the girl is no girl at all but a decoy:

On July 7, 2005, Gagliardi, then sixty-two years old, entered an Internet chat room called “I Love Older Men” and initiated an instant-message conversation with “Lorie,” an adult government informant posing as a thirteen-year-old girl under the screen name “Teen2HoT4u.” The informant was a private citizen who had previously assisted the Federal Bureau of Investigation (“FBI”) in identifying child predators on the Internet. During this initial conversation, Gagliardi tried to verify that Lorie was in fact thirteen years old and broached the topic of sex. Gagliardi contacted Lorie again on August 29, 2005 and had the first of many online conversations in which he expressed his desire to have sex with her and used sexually explicit language to describe the acts he wished to perform with her. Gagliardi even offered to pay Lorie $200 to have sex with him, before telling her, “I want to meet you . . . make love to me anytime . . . no strings attached.” In the following weeks, Gagliardi repeatedly tried to convince Lorie to meet him in person,
asking her to “tell me where is good for you, I come to pick you up,” or offering to meet her in a public place.

But "Lorie" told Gagliardi that she was afraid to meet him alone and that he should contact her friend "Julie," another law enforcement decoy whom Gagliardi also propositioned. When Gagliardi showed up to meet "Lorie" and "Julie," he encountered law enforcement who arrested him and found two condoms and Viagra in his car.

Joining six other Federal circuit courts on the issue, the Second Circuit ruled that the law does not require that Gagliardi actually communicate with minors. It is enough for him to believe that he was propositioning minors even though he was actually communicating with law enforcement. Gagliardi cannot raise the defense of "factual impossibility" to an attempt charge, and his creative use of the legislative history behind the statute he violated -- always a Hail Mary in these cases -- was rejected as well. Moral of the story: don't try to have sex with minors.

Qualified immunity means never having to say you're sorry

Any civil rights lawyer knows about qualified immunity. It can surface on a motion to dismiss and turn a great case into a dead case when you least expect it. Qualified immunity means that public officials can win the case even if they broke the law. If the state of the law was uncertain when the defendant violated your constitutional rights, he wins the case, even if 20-20 hindsight makes it clear that he violated a constitutional provision. Then the courts put qualified immunity back into the attic, and it resurfaces when we least expect it.

This time around, the Court of Appeals ruled that two police officers violated the Fourth Amendment in searching a residence without a warrant. But they were immune from suit because the law was unclear at the time of the violation that their actions were unconstitutional.

The case is Moore v. Andreno. The Court of Appeals (Walker, Sack and Daniels) opened the opinion as follows:

Courts have long acknowledged that a person has the right to establish a private sanctum in a shared home, a place to which he alone may admit or refuse to admit visitors. Yet, with the recurrence of domestic violence in our society, we are loath to assume that a man may readily threaten his girlfriend, take her belongings, lock her out of part of his house, and then invoke the Fourth Amendment to shield his actions. Deputies Joseph A. Andreno and Kurt R. Palmer, responding to an emergency call, were faced with reconciling these two competing interests. While
they misapplied the relevant constitutional calculus, they are police officers, not lawyers or mathematicians. And thus, because the law governing the authority of a third party to consent to the search of an area under the predominant control of another is unsettled, and because Deputies Andreno and Palmer made a reasonable mistake in applying that law to the situation with which they were confronted, the district court erred in denying them summary judgment on qualified immunity grounds.

It all started when girlfriend went to boyfriend's house to retrieve her belongings when the relationship went sour. Girlfriend was worried that violent boyfriend was on his way home and that he would resort to violence. So girlfriend called the police in a panic, and they entered the house intending to defuse the pending firestorm. As the Second Circuit noted,

Upon their arrival, a “hysterical” [girlfriend] requested the Deputies’ assistance in retrieving her belongings from Moore’s study. She explained that she feared that Moore might return at any moment. She also informed the Deputies that she “wasn’t allowed in th[e] [study] unless [Moore] was there” and that she had cut the locks off the door. She may also have informed them that the Deputies were likely to find marijuana in the study.

Thanks to girlfriend's drug tip, boyfriend was arrested for drug possession. But the criminal court granted his motion to suppress the illegally-seized evidence. He filed a lawsuit against the police for the unlawful search. The district court held that boyfriend had a case. The Court of Appeals reversed on qualified immunity grounds. While the Court of Appeals noted that warrantless searches are presumed unconstitutional, the law gets murky when third parties give consent to search without a warrant.

The Circuit noted that, in Georgia v. Randolph, 547 U.S. 103 (2006), the Supreme Court held that "a search conducted on the basis of one co-tenant’s consent is unreasonable as to a physically present and objecting co-tenant. In doing so, however, Randolph emphasized that the reasonableness of a consent search is informed by “widely shared social expectations.” For example, “[a] person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant.”

While, according to the Court of Appeals, the police in this case violated the Fourth Amendment in allowing girlfriend to "consent" to the warrantless search (as she did not actually have control over the premises and it was not her residence), at the time of the search, it was not clearly established through case law that a search like this was illegal. On one hand, girlfriend broke the locks to gain access to the study, where boyfriend's drugs were found. On the other hand, the police may have thought that she was in the study to rightfully get back her belongings, which could validate her consent. When the case law is murky and the police could reasonably disagree about the legality of the search, they get the benefit of the doubt. The law on third party consent for a warrantless search was too unclear to hold the police legally responsible, even if their actions in hindsight were illegal. Boyfriend may want an apology for the unlawful search (not to mention money damages), but qualified immunity means never having to say you're sorry.

Court reinstates 9/11 coerced confession decison

On Thursday the Court of Appeals did something very unusual. Withing several hours, it posted and then withdrew a lengthy opinion. We all wondered what happened. Then it was reported on the How Appealing blog that the Court withdrew the opinion because it contained sensitive information under seal in connection with the 9/11 terror attacks. My discussion of that decision is here.

The revised opinion in Higazy v. Templeton, posted on Friday morning, is here. On page 7 of the decision, the Court writes:

Higazy alleges that during the polygraph, Templeton told him that he should ooperate

. . .

This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy's statements were coerced.

So what the court did was to omit facts about the coerced confession having to do with how the FBI defendant got the plaintiff to confess to the crime that he didn't commit. I have never seen an explicit redaction in a court decision before. But if, as they say, 9/11 changed everything, then it creates this new procedure of explicitly advising the reader that parts of the decision cannot be read by anyone.

Interesting side-note. Although the Court of Appeals asked the How Appealing blog to withdraw its link to the original decision which contained the sensitive information, How Appealing did not comply with that request. So the decision remains on line through the How Appealing blog for anyone to read.

Coerced confession decision will return on Friday

The case of the missing opinion has been solved. Earlier today I wrote about an interesting constitutional ruling by the Court of Appeals which held that a coerced confession in connection with 9/11 could give rise to a constitutional claim. Shortly after the decision was posted, it was withdrawn without explanation. Other bloggers wrote about the mystery, and the father of legal blogging linked to a PDF of the ruling which someone must have emailed to him. Here is what Howard Bashman reported at the How Appealing blog:

Catherine O'Hagan Wolfe, the Clerk of Court of the U.S. Court of Appeals for the Second Circuit, has telephoned to advise that the opinion was withdrawn out of a concern that it might disclose information contained in a portion of the appendix on appeal that was submitted under seal. The Second Circuit plans to reissue the decision, as revised to omit any disclosure of information filed under seal, tomorrow morning. The purpose of Ms. Wolfe's telephone call was to ask me to take down this blog's posting of the decision to the internet.

Sept. 11 coerced confession violates the Constitution

In one of the most interesting cases decided by the Second Circuit in quite some time, the Court of Appeals ruled on October 18 that a man could sue a Federal agent for coercing a confession about his involvement in the September 11 attacks. Update: adding further intrigue to this case, the opinion in this case was withdrawn about two hours after the Court of Appeals posted it on its website. No explanation given. The link to the decision below is now dead.

The case is Higazy v. Millenium Hotel and Resorts. Higazy is an Egyptian citizen who was studying in New York City on the morning of September 11, 2001. The hotel he was staying in was evacuated right after the attacks, and a month later, hotel personnel found a suspicious airplane radio in Higazy's hotel room safe. The radio was an air-band transceiver capable of air-to-air and air-to-ground communication. This raised suspicions about Higazy and whether he was communicating with the hijackers and had something to do with the attacks. When FBI agents informally questioned Higazy, he had no idea what they were talking about and proclaimed his innocence. No matter. Higazy was held as a material witness and kept in custody.

When the FBI interrogated Higazy, defendant Templeton (an FBI agent) ridiculed him and called him a liar. According to the Court of Appeals,

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.”

Higazy later said, “I knew that I couldn’t prove my innocence, and I knew that my family was in danger.” He explained that “[t]he only thing that went through my ead was oh, my God, I am screwed and my family’s in danger. If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”

So Higazy "confessed" to owning the radio to save his family from the brutal Egyptian government which he compared to Saddam Hussein's torure regime in Iraq. He therefore concocted an inconsistent story about how he obtained the radio. Higazy was next charged with engaging in criminal activity.

What happened next was even more bizarre. An airline pilot next returned to the hotel to reclaim his property. "After inspecting his items, the pilot informed the hotel staff that his transceiver was missing." The radio which authorites thought belonged to Higazy actually belonged to the pilot, who had had no interaction with Higazy. After being charged with the crime of the century, Higazy was innocent! He was freed and next brought a lawsuit against the interrogator, claiming constitutional violations relating to the coerced confession.

The Court of Appeals agreed that Higazy has a claim under the Constitution for the coerced confession and that Templeton is not entitled to qualified immunity. Reviewing the law of coerced confessions, the Second Circuit untangled Supreme Court precedent in finding that the confession could predicate a civil lawsuit because it was obtained in connection with a criminal case, in particular, a bail hearing on January 11, 2002. While government defendants are entitled to qualified immunity (and can't be sued) if the law was unclear at the time of the incident, the Court of Appeals reasoned, "On January 11, 2002, it was clearly established that the FBI could not coerce a confession and later use that confession in a criminal case, including in a proceeding before a judge after criminal charges had been filed, to impose the penalty of continued detention. The government argues that there was conflicting Supreme Court law as to whether a Fifth Amendment right against self-incrimination was only a trial right, or extended more broadly. We disagree."

Wrapping up, the Second Circuit also rejected Templeton's other qualified immunity argument that it was objectively reasonable for him to act as he did under the circumstances. "When the facts are cast in the light most favorable to Higazy, an officer in Templeton’s shoes would have understood that the confession he allegedly coerced from Higazy would have been used in a criminal case against Higazy and that his actions therefore violated Higazy’s constitutional right to be free from compelled self-incrimination." While Judge Jacobs concurred in the result and took issue with the majority's analysis, he acknowledge the case raised "oddball facts."

Religious land-use act is constitutional

In 1990, the Supreme Court issued a ruling that made it easier for the government to burden the exercise of religion, holding that if a certain law applies to everyone, then its adverse effect on certain religious practices does not violate the Free Exercise Clause of the Constitution, which protects religious freedom. That case was Employment Division v. Smith, a much-criticized decision which arguably reversed decades of case law on the subject. Congress responded to this ruling by enacting the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits the government from imposing or implementing a land use regulation in a manner that imposes a substantial burden on the religious exercise of a religious institution. The government can prevail if it can show that compelling reasons necessitate this burden on that institution and there is no other way to achieve that compelling interest.

In Westchester Day School v. Village of Mamaroneck, decided on October 17, the Court of Appeals (Cardamone, Raggi and Berman) agreed with the district court that the Village of Mamaroneck violated RLUIPA in denying the permit for a Hebrew school to expand its building for religious purposes. Importantly, the Court of Appeals held that RLUIPA is constitutional.

In fleshing out the elements of a case like this, the Court held that the permit denial violated the statute because it substantially burdened the school. Courts have narrowly interperted the "substantial burden" test; the religious institution will likely lose the case if the zoning decision leaves open the possibility that the institution can achieve its zoning goals in other ways, i.e., a resubmission of the zoning request with modifications.

In addition, the Court held, if the denial of the institution's application will have a minimal effect on its religious exercise, that denial is not a "substantial burden." The Court reasoned, "There must exist a close nexus between the coerced or impeded conduct and the institution's religious exercise for such conduct to be a substantial burden on that religious exercise." Accordingly, the Second Circuit observed, "courts confronting free exercise challenges to zoning restrictions rarely find the substantial burden test satisfied when the resulting effect is to completely prohibit a religious congregation from building a church on its own land."

So how did the Westchester Day School win the case? It won because the trial court ruled that the zoning application denial was arbitrary and capricious and the denial bore no relationship with public health, safety or welfare. The zoning denial was also unsupported by the evidence. Since there was no other way for the school to achieve its objectives once the municipality denied its application for arbitrary reasons, the Town violated RLUIPA.

Then the Court of Appeals addressed a broader question. Is RLUIPA constitutional as applied to this case? This argument comes up from time to time as defendants suggest that this law violates the constitutional separation of church and state and other constitutional provisions. The Court of Appeals found that RLUIPA does not violate the Commerce Clause because the $9 million construction job sought by the school had at least a minimal effect on interstate commerce. The Court of Appeals also rejected the Town's Tenth Amendment claim. That amendment is known as the "state's rights" amendment because it affords States the right to do what the Constitution does not allocate to Congress. Since RLUIPA does not direct States to require or perform any particular acts, and instead leaves it to the States to determine how to enact and enforce land use regulations consistent with religious freedom, there is no Tenth Amendment problem.

Finally, the Town argued that the Establishment Clause prohibits laws like RLUIPA because the law breaches the separation of church and state. But the Court of Appeals held that the law neither advances nor inhibits religion; it only permits religious practicioners the free exercise of religion without undue government interference. The law also does not create excessive government entanglement with religion. It is not enough for the Town to argue that a law which requires municipalities to treat religious institutions fairly creates undue entanglement.

Second Circuit rejects premature disability discrimination appeal

Not every court ruling can be appealed in the Federal system. You need a final judgment which resolves all the claims before taking the case to the Court of Appeals. One of the ways around this is by having the trial court certify the case for an early appeal under Rule 54 of the Federal Rules of Civil Procedure. We call that interlocutory appeals. But sometimes, even if the trial judge certifies the case for immediate appeal, the Court of Appeals rejects that certification. That happened on October 16, 2007, in Transport Workers Union of America v. New York City Transit Authority.

The union sued the City claiming that certain sick leave procedures violated the Americans With Disabilities Act because workers have to tell management the nature of their illness or disability. Employees who need more than two days' off have to also provide certain medical records. Employees found to have abused sick leave in the past also have to provide certain medical records. The union argued that these procedures represent a prohibited inquiry under the ADA which only permits the release of medical information when it's "job-related and consistent with business necessity." According to the union, this information might reveal certain ADA-covered disabilities like AIDS, cancer and depression.

The district court held a trial on the legality of this policy only as it affected two subclasses of the union: bus drivers and station cleaners. After trial, the court ruled that these sick leave procedures were legal only for the sick leave abusers and for bus drivers and other safety-sensitive employees. The policy was otherwise illegal to the extent it sought to prevent sick leave abuse. The union wanted to appeal, but the problem was that the district court had yet to rule on the policies as they affected other transit employees. Since the case was not final and therefore not ready for the Court of Appeals, the district court certified the case for immediate appeal.

The Court of Appeals does not have to entertain an appeal that the district court certifies for immediate appeal. In this case, the Second Circuit said the case was not yet ready for appeal. While the lower court did rule on the legality of the sick leave policy as it affected bus drivers, that did not mean that issues concerning the bus drivers would not again surface in a later appeal, particularly since the City is prepared to make other arguments in favor of the sick leave policy as it affects the bus drivers. Since the purpose of the certification policy for immediate appeals is to allow the Court of Appeals to resolve a distinct class of legal issues, the fact that other issues concerning the bus drivers might return to the Second Circuit on another day means that the district court was wrong to certify the case for immediate appeal. Bottom line: appeal dismissed for lack of appellate jurisdiction.

EEOC filing not required in some disability discrimination cases

Employment lawyers know that plaintiffs have to file a timely administrative charge of discrimination with the Equal Employment Opportunity Commission. This includes charges of racial or gender discrimination. It also applies to claims under Title II of the Americans With Disabilities Act, which prohibits discrimination in the workplace against disabled people. But what about discrimination in the area of public accommodations? Those claims are covered by Title III of the Americans With Disabilities Act, which does not require the plaintiff to bring an administrative claim with the EEOC. This distinction seems simple enough, but the Court of Appeals issued a ruling on October 15 reminding us that "public accommodation" claims are distinct from employment claims.

The case is McInerney v. Rensselaer Polytechnic Institute. The plaintiff alleged that RPI did not reasonably accommodate his disability when he sought a doctorate as his advisor asked "ill posed and unreasonable questions" and another RPI administrator told the plaintiff to "stop using his disability as an excuse." While he filed his lawsuit in court (Northern District of New York), the plaintiff did not first file a charge of discrimination with the EEOC. The district court dismissed the case for that reason. On appeal, the Second Circuit (McLaughlin, Raggi and Rakoff) said that since this is not an employment discrimination case but instead an action alleging discrimination in the public accommodation of a university, no EEOC complaint was necessary.

The Court of Appeals reasoned:

There is good reason to conclude that Congress intentionally omitted the exhaustion requirement for public-accommodations claims, as it would make little sense to require a plaintiff challenging discrimination in public accommodations to file a charge with the EEOC, an agency with responsibility for and expertise in matters of employment discrimination. Accordingly, we hold that there is no administrative-exhaustion requirement for ADA Title III claims or Title V claims predicated on asserting one’s rights under Title III.

International corporations may be sued for apartheid-era violations in South Africa

The apartheid form of government in South Africa may be dead, but litigation arising from the racially-based social structure that fell nearly 20 years ago rages on. On October 12, in
Khulumani v. Barclay National Bank, the Court of Appeals (Katzmann, Hall and Korman) revived a lawsuit against various corporations alleged to have collaborated with the government of South Africa in maintaining its authoritarian system of government.

The opinion opens with the following intriguing statement:

The plaintiffs in this action bring claims under the Alien Tort Claims Act, 28 U.S.C. § 1350, against approximately fifty corporate defendants and hundreds of “corporate Does.” The plaintiffs argue that these defendants actively and willingly collaborated with the government of South Africa in maintaining a repressive, racially based system known as “apartheid,” which restricted the majority black African population in all areas of life while providing benefits for the minority white population.

The Alien Tort Claims Act allows the district court to exercise "jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In 2004, the Supreme Court ruled that the law allows "for a relatively modest set of actions alleging violations of the law of nations."

In the apartheid case, The Second Circuit ruled that "in this Circuit, a plaintiff may plead a theory of aiding and abetting liability under the ATCA." In other words, corporations and other non-governmental actors that were accomplices to the violation of human rights and international law may be sued under the Alien Tort Claims Act.

Judge Korman dissented, summarizing the majority's holding as well as his objections to how the Court of Appeals interpreted the Act:

Today, the majority allows three class actions on behalf of all persons who lived in South Africa between 1948 and the present and who suffered damages as a result of apartheid to go forward in a United States court against American, Canadian, and European corporations that sold goods and materials or made loans to the Union of South Africa during the apartheid era. It does so over the vigorous objections of the United States, its allies, and, most notably, the Republic of South Africa, which is justifiably proud of the ability of its legal system to adjudicate legitimate human rights claims. In doing so, the majority also ignores a direct signal from the Supreme Court of the United States regarding the non-viability of these claims.

Family Court cannot order a bad mother not to have any more children

A state appeals court in Rochester, N.Y., has resolved an interesting question of law: can a Family Court order a bad mother not to get pregnant until she cleans up her act? The appellate court said "no."


The case is In the Matter of Bobbijean P. After the baby was born addicted to cocaine, the Monroe County Department of Human and Health Services placed her with a relative. When the mother failed to show up in Family Court, the court ruled that her parents (who were homeless) were guilty of neglect. The court also ordered that the mother "shall not get pregnant again until and unless she has actually obtained custody and care of Bobbijean P. and every other child of hers who is in foster care and has not been adopted or institutionalized."

The Appellate Division reversed. First, it excused the mother for not showing up in Family Court since she was unaware that the court would take the unprecedented step of ordering her not to get pregnant again. The appellate court reasoned: "Regardless of whether respondent willfully defaulted with respect to the hearing, an order prohibiting respondent from conceiving a child is, insofar as our research discloses, unprecedented in this state, and such consequences could not have been anticipated by respondent."

More broadly, the appellate court said, the Family Court had no authority under the rules to prohibit the mother from getting pregnant again. Apparently, another court in New York held that the rules governing Family Court contained implied authority for the courts to impose this condition. That case is Matter of V.R., 6 Misc 3d 1003[A], which broadly interpreted the rules allowing the courts to order certain medical treatment. But, the Appellate Division said, "In our view, the compelled use of birth control measures is not encompassed within the term 'medical treatment' . . . nor does a prohibition against reproduction address the goals of remedying the acts found to have caused the neglect or of safeguarding the well-being of the child within the meaning of " the Family Court rules.

This case obviously raised important constitutional issues, which is probably why the New York Civil Liberties Union got involved. A line of U.S. Supreme Court cases holds that the Constitution guarantees the right to procreate. But the Appellate Division side-stepped those issues because there was an easier way to overrule the Family Court. The question of whether a court may order a woman to avoid getting pregnant will have to be decided some other time.

Attorneys' fees vacated in student disability case

When a high school student in City of Newburgh was suspended for his involvement in an altercation in the hallway, his lawyers went to court seeking a temporary restraining order and preliminary injunction, arguing that the school district did not properly determine whether this misconduct was a manifestation of his disability. The district court granted the injunction in May 2004, agreeing that the student had a case under the law governing the treatment of special education students, the Individuals with Disabilities in Education Act. Although the lawyers did not exhaust all state administrative remedies before bringing the lawsuit, the district court ruled that such exhaustion would have been futile because the state administrative process was not fast enough to allow the student to return to school and graduate on time.

The Court of Appeals reversed that determination on September 25. In Coleman v. Newburgh Enlarged City School District, the Second Circuit (Walker, Straub and Winter) held firm to the view that exhaustion of state administrative procedures is mandatory before the plaintiff can seek relief in court. The exception to that rule requires a showing that exhaustion would be futile or the case presents an emergency. Without addressing the district court's finding that the timeline governing the exhaustion of state administrative remedies was not fast enough to allow the plaintiff to graduate in time, the Court instead interpreted the IDEA to mean that students do not have the right to return to school while the state administrative process unfolds so long as the school provides home tutoring. The Court further held that students do not have the right under IDEA to graduate on time; they only have the right to a free and appropriate public education. The fact that plaintiff was due to miss graduation without injunctive relief does not create an emergency under IDEA since the "emergency exception" to that statute is limited to cases where the student will suffer physical or emotional injury without court intervention.

The irony of this case is that, after the district court granted the preliminary injunction, the student returned to school and graduated on time. The case wound up in the Court of Appeals after the district court granted plaintiff's motion for attorneys fees. The school district opposed the fee application on the basis that the failure to exhaust state administrative remedies meant that the district court had no jurisdiction to hear the case in the first place and that attorneys fees were therefore inappropriate. When the district court disagreed with that argument, the case went up to the Second Circuit, which vacated the attorneys' fee award and ruled that the district court should have dismissed the case from the outset.

Disclosure: our law firm handled the case on appeal.