Wednesday, December 24, 2008

Age discrimination case reinstated for trial

For some reason, the Second Circuit does not publish many of its employment discrimination cases, even when it overturns the ruling of a district court on summary judgment. That doesn't mean we should ignore the unpublished decisions. If discrimination cases are your bread and butter, it's still worth noting how the Court of Appeals views these cases.

This time around its Carras v. MGS 782 Lex, Inc., 2008 WL 5273278 (2d Cir. Dec. 19. 2008), where the Second Circuit reinstated an age discrimination claim. The 62 year-old plaintiff was fired from his job as Chief Financial Officer of a shoe importing company. The defendant argued that plaintiff was fired for cost-cutting reasons. The district court thought the jury could only find that cost-cutting was the real reason, not the plaintiff's age. But the plaintiff produced evidence that he was willing to work for a lower salary and that the corporate vice president repeatedly told the president that plaintiff was too old and that the president capitulated to the vice president's wishes that plaintiff be terminated. Management had also openly joked about plaintiff's age on several occasions. Plaintiff was also replaced by a 26 year-old.

In crediting the company's financial justifications for terminating the plaintiff, the Court of Appeals held, the trial court weighed the evidence, a task for the jury, not a court on a motion for summary judgment.

Monday, December 15, 2008

Circuit strikes down and modifies Patriot Act provision on National Security Letters

The USA Patriot Act allows the FBI to demand from telephone and Internet service providers certain information from their customers about their communications activity. Through "national security letters" (or NSL's), the FBI could find out if someone was engaged in terrorist activities. But the recipients of these NSL's could not communicate to anyone that they received them. Nor could they tell anyone they had to comply with them. This created significant First Amendment problems, which the Second Circuit resolved on December 15.

The case is Doe v. Mukasey. The district court struck down much of this statute on a preliminary injunction. The Court of Appeals gives this case extended treatment, striking down and otherwise narrowly interpreting parts of the law.

Plaintiffs argued that the nondisclosure requirement is a content-based prior restraint which the First Amendment forbids. They also argued that this licensing scheme must include a mechanism for the government to seek judicial review on the restraint. This objection is rooted in case law requiring the government to initiate legal proceedings when it wants to restrict certain speech. We call it the Freedman requirement, based on a Supreme Court ruling from the 1970s. But the government responds that this not quite like prior restraints governing public assemblies and entertainment like movies and books but, instead, simply a restriction on speech comparable to grand jury secrecy and judicial misconduct proceedings. Also, under the statute, to trigger the nondisclosure requirement, the FBI must first certify to a court that the national security letters are intended to deal with international terrorism or clandestine intelligence activities.

The Second Circuit first holds that the above speech restrictions are not classic prior restraints in that they don't squelch speech in public forums. But the Court holds that this is not quite comparable to secret grand jury proceedings, either. "In any event, John Doe, Inc., has been restrained from publicly expressing a category of information, albeit a narrow one, and that information is relevant to intended criticism of a governmental activity," the Court states.

What tangles up the Court of Appeals is the absence of any mechanism for the government to seek a court order allowing it to silence the recipient of a national security letter. In other words, where is the Freedman requirement? This mechanism is normally required when the government wants to restrict certain speech. The government argued, among other things, that this requirement is burdensome because the government issues thousands of national security letters each year. But the Court of Appeals suggests that one way to deal with this is to have the government tell the recipient that it has 10 days to advise whether it will challenge the nondisclosure requirement and that if the recipient chooses to do so, the government will have a limited time frame in which to seek the appropriate court order. This Freedman procedure will work, the Court says, because the government doesn't think too many NSL recipients want to make an issue of this in the first instance. So the point here is that Freedman requirements must apply to NSL's.

But there is another problem. The Patriot Act requires the courts to defer to the government's judgment in issuing NSL's. The First Amendment requires the government to provide a concrete reason for nondisclosure requirements. The Court of Appeals resolves this issue by requiring the government to show why disclosure would risk "an enumerated harm," that is, "the Government must at least indicate the nature of the apprehended harm and provide a court with some basis to assure itself (based on in camera presentations where appropriate) that the link between disclosure and risk of harm is substantial." This solution allows the government to exercise its national security objectives without the Federal courts breathing over its shoulder.

The Court of Appeals, in effect, is saying that if the government provides a concrete reason for nondisclosure, that reason may outweigh the NSL recipient's First Amendment interest in publicizing the letter and any grievance related to the production of the Internet activity of an ISP customer. The Court concludes, "A demonstration of a reasonable likelihood of potential harm, related to international terrorism or clandestine intelligence activities, will virtually always outweigh the First Amendment interest in speaking about such a limited and particularized occurrence as the receipt of an NSL and will suffice to maintain the secrecy of the fact of such receipt."

One last problem: under the statute, the government certification that the NSL's are necessary are deemed conclusive by the courts unless the courts think the certification was advanced in bad faith. The Second Circuit rejects this. Such a procedure gives the government too much leeway to regulate speech without satisfying "strict scrutiny," the standard governing court review of most speech restrictions. The Court pounds the table on this one: "“Under no circumstances should the Judiciary become the handmaiden of the Executive.”

Monday, December 8, 2008

No political demonstrations at West Point

In spring 2007, an activist group sought to hold an anti-war demonstration at the United States Military Academy at West Point, located in Orange County, New York. The occasion was the annual graduation ceremony featuring Vice President Cheney, who would address the cadets when public opinion was souring on the Iraq war. West Point denied the permit application, and the trial court denied the plaintiff's request for a preliminary injunction. This week, the Second Circuit affirmed that denial.

The case is Sussman v. Crawford, decided on December 2. I represented the plaintiffs in this case. It's not everyday that people sue under the First Amendment to protest at a military installation. The case law in this area is sparse in the Second Circuit. The Court of Appeals took the opportunity to confirm that nonpublic forums like West Point are no place for political demonstrations even though this is government property has enough space for any demonstration.

In the mid-1970's, the Supreme Court sharply limited free speech rights at military installations. That case was Greer v. Spock, 424 U.S. 828 (1975), which held that the military has discretion to deny speech and public assembly permits if they would interfere with military readiness and morale. In Sussman v. Crawford, the plaintiffs argued that West Point is not comparable to Fort Dix or other installations because West Point is also a college campus and a cultural center, with a large football stadium, an auditorium that hosts public lectures and concerts and a hotel that the public can frequent. They also argued that the planned demonstration for Cheney's speech, about a mile or so away from the graduation ceremony (but still on West Point property), would not interfere with the ceremony or cause any security problems.

The Court of Appeals rejected these arguments, holding that "While the West Point reservation differs from some other military installations in that it houses an Academy and often invites speakers to address its cadets, we believe that the presence of the Academy within the cantonment is not sufficient to convert West Point into a public forum." The Court also held that West Point's speech policy was not arbitrary applied.

The Second Circuit resolved some noteworthy procedural issues here. First, after the trial court denied the injunction, the plaintiffs sought to stay that denial in the Court of Appeals in May 2007. The Court of Appeals denied that application in a published opinion, 488 U.S. 136 (2d Cir. 2007). The plaintiffs then took a formal appeal from the district court's ruling, giving rise to the opinion decided on December 2. Law of the case principles do not squarely apply here since the first published opinion was an interlocutory ruling, but the Court of Appeals still reviewed the issues while taking into account its earlier opinion. The lesson here is that appealing a district court opinion in the wake of an interlocutory ruling may lead to the same result unless something happened in the interim (new facts or new case law) that would change the outcome.

In addition, the plaintiffs also challenged the procedural rules governing the resolution of speech and public assembly permits at West Point. That issue was not resolved in the interlocutory ruling in May 2007. But West Point revised those rules to avoid any constitutional question. Under Lamar Adver. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004), the revised rules moot the challenge to the old rules. Lamar Advertising involved the enactment of a municipal ordinance which changed the speech procedure under review. That kind of legislative change almost guarantees that the old rule will not come back. Prior to Lamar Advertising, the Second Circuit generally held that a new rule does not moot out a challenge to the old provision because the defendant is then free to bring back the old rule after the lawsuit is over. In Sussman v. Crawford, the reasoning of Lamar Advertising has been extended to regulations enacted by a government entity such as West Point as opposed to a law enacted by a City Council or Town Board.

Wednesday, December 3, 2008

City of Rochester curfew is struck down as unconstitutional

Curfews are common in municipalities that are concerned about crime and quality of life issues, such as minors loitering on the street corner or hurling beer bottles onto the neighbor's lawn. But these curfews are not always legal. The Appellate Division in upstate New York struck down the City of Rochester curfew a few weeks ago.

The case is Anonymous v. City of Rochester, decided on October 10. (Hat tip to New York Legal Update which alerted me to this case). The law made it illegal for minors to be in a public place between the hours of 10:00 pm and 5:00 am on most days, unless the minor is accompanied by a parent or guardian or can show that he fits within one of the exceptions to the law, i.e., he is on his way to work or there is some emergency that requires him to be outside during the prohibited hours.

A parent challenged the constitutionality of the curfew under the U.S. Constitution, particularly the Equal Protection Clause and its implied freedom of movement. Since the law implicates these principles, the Appellate Division applies "strict scrutiny" in reviewing the law's constitutionality. In other words, the court carefully reviews the law, which will be struck down unless the City can offer some compelling reasons for its enactment. Strict scrutiny means death for most laws, and that is what happened here.

Citing federal court precedents, the Appellate Division states that "the ordinance infringes on plaintiff son's fundamental right of free movement because it affects the right of plaintiff son 'with parental consent to walk the streets, move about at will, meet in public with friends, and leave his house[] when [he] pleases. This right to movement is a vital component of life in an open society, both for juveniles and adults.'"

But then the Appellate Division does something very interesting. In the Second Circuit Court of Appeals, laws like this are not subjected to strict scrutiny. See, i.e., Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003). Instead, the municipality has greater leeway to regulate the actions of minors, who do not typically enjoy the rights of their elders. The Appellate Division will have none of this, and it rejects the distinction between minors and adults. Curfew laws in the Appellate Division are therefore reviewed as if they are regulating the activities of older folks. In this regard, the Appellate Division rejects the constitutional interpretation of the federal Court of Appeals in its own jurisdiction and instead follows the lead of other federal courts around the country which have granted minors greater constitutional rights.

But that was academic, because the Appellate Division says it would even strike down the law under the more lenient burden of proof as recognized in the Second Circuit. The reasons advanced for enacting the curfew, i.e., dealing with juvenile crime and victimization as reflected in three tragic deaths from 2001 through 2005, do not cut the mustard. Those crimes either took place outside the curfew hours or they involved a minor who was already under careful judicial supervision as a result of his background. In addition, there is no "substantial relationship" between the law and its goals, because "the crime statistics for the City demonstrate that the vast majority of violent crime during curfew hours is committed by persons over 18, and that adults are far more likely to be victims of such crime during those hours." It was also not enough for City officials to assume that children are more vulnerable at night than adults.

The law also discourages First Amendment activity, in that it prohibits minors from being in a public place for 5-6 hours a day. The Court reasons, "'Being out in public is a necessary precursor to almost all public forums for speech, expression, and political activity . . . [The] relationship [of governmental regulation of nonspeech, i.e., the nocturnal activity of minors,] to expressive conduct is intimate and profound.' By subjecting juveniles to arrest merely for being in a public place during curfew hours, the ordinance forcefully and significantly discourages protected expression." The problem is that a police officer had to make a judgment whether the minor is engaging in First Amendment expression or simply hanging out with his buddies. That prospect will chill legitimate First Amendment activity.

Finally, there is a father's rights component to the court's analysis. The law interferes with a parent's right to direct and control their child's upbringing. The Court reasons, "We conclude . . . that the ordinance interferes with parental supervision and supplants plaintiff father's reasonable standards by preventing plaintiff son from exercising his fundamental constitutional rights with plaintiff father's permission, approval and encouragement."

In cases like this, where the Appellate Division is picking and choosing from competing rulings of the federal courts on this issue, there is going to be room for disagreement, especially when a state appellate court rejects the reasoning in a comparable case from the federal Court of Appeals in its own jurisdiction. Not surprisingly, two Appellate Division justices dissent from the majority's reasoning, which almost guarantees that this case will go before the New York Court of Appeals, the highest court in the State.

Monday, December 1, 2008

The Constitution survives 9/11

A federal judge in the Eastern District of New York has held that two Arab men can sue federal agents for detaining them in August 2004 for engaging in innocuous behavior on a trans-Atlantic flight. In what may be the first case of its kind, Judge Block also held that Arab ethnicity has no relevance in determining whether a detention is supported by probable cause.

The case is Farag v. United States, 2008 WL 4965167, decided on November 24. Two Arab-Americans were flying from San Diego to New York City. They were friends but not sitting together. During the flight, one of the Arab men kept looking at his watch. The Arab men talked loudly to each other in a mixture of Arab and English. As they were not sitting together, they talked over the heads of passengers. One of the Arabs wanted to sit closer to his friend, so he asked two men if he could take the vacant seat between them. That arrangement would have cost the Arab man his window seat. These two men got suspicious and said no to the new seating arrangement. They got even more suspicious when the two Arabs moved their seats to another location on the plane without carrying their overhead baggage with them. Then, as the plane dallied on the tarmac upon landing, one of the Arab men deleted phone numbers from his cell phone.

The Arab men were actually upstanding fellows. One was a former police officer and corrections officer. The other one worked for General Electric and had a valid U.S. visa. The two men who sat near them -- whom one of the Arabs wanted to sit in between -- were actually counterterrorism agents. When the Arabs got off the plane, they were greeted by Port Authority Police Officers who were carrying shotguns. The Arab men were handcuffed and taken to the Port Authority police station, where they were interrogated for several hours, and they were not free to leave. As they were completely innocent, the Arab men were let go at 4:00 a.m., scared out of their wits.

The lawsuit against the federal agents raises a question that has not arisen since 9/11. Can federal agents take Arab ancestry into account in their decision to detain people suspected of terrorist activity? The reason for the question is obvious to anyone familiar with "reasonable suspicion" and "probable cause" analysis. The "unusual" events on the plane -- speaking in Arab and English, moving around to different seats, checking the time and other facially innocent events -- are not enough to detain for a terrorism investigation. There are too many rational explanations for this activity, and the judge in this case seems a little disturbed that the U.S. Attorney's office is trying to argue that this behavior alone creates reasonable suspicion to detain these men.

But what about the fact that they are Arab? Is that enough? No, says Judge Block, who notes that our world has changed since 9/11 in ways large and small. But it has not changed so much that the Constitution has been erased. Although the government argued that Arab ancestry is relevant because the 9/11 hijackers were Middle Eastern males, that is not enough. The government did cite a Supreme Court case from 1975, U.S. v. Brignoni-Ponce, 422 U.S. 873, which held in dicta that, while a border patrol agent could not make a traffic stop solely because of the apparent Mexican ancestry of the car's occupants, their ancestry could be a relevant factor. But Judge Block suggests that the precedential value of this decision has diminished greatly over the last 25 years, as more and more Hispanics live in the United States such that the statistical analysis relevant in 1975 is outdated today. Other federal courts have similarly revised the vitality of Brignoni-Ponce's analysis.

Writing on a fresh slate, Judge Block cites a scholarly analysis that notes "an increasing 'hostility to the use of race as a basis for police action under the Fourth Amendment." And you thought no one read law review articles. But law professors are not judges. So Judge Block says it himself: "Although this is the first post-9/11 case to address whether race may be used to establish criminal propensity under the Fourth Amendment, the Court cannot subscribe to the notion that in the wake of 9/11 this may now be permissible."

Federal judges like to include in their opinions language that reflects the gravity of issues like this to ensure that civil liberties must survive even the most horrible terrorist attack. Judge Block does so here: "The Court 'fully recognizes the gravity of the situation that confronts investigative officials of the United States as a consequence of the 9/11 attack, and that the mindset of of airline travelers has understandably been altered by 9/11. This justifiable apprehension must be assuaged by ensuring that security is strictly enforced, and by the passage of time without, hopefully, other episodic affronts to our country; but fear cannot be a factor to allow for the evisceration of the bedrock principle of our Constitution that no one can be arrested without probable cause that a crime has been committed."