Despite nudity, jail's clothing exchange rule is legal

The Court of Appeals has granted summary judgment to an upstate New York county which requires jail inmates to remove their clothing in the presence of a corrections officer.

The case is Kelsey v. County of Schoharie, decided on May 22. At the Schoharie County Jail near Albany, N.Y., jail officials require certain male inmates to exchange their street clothes for jail clothing. Under the rules, officers cannot conduct a personal search or body inspection or observe the inmate taking a shower or getting dressed. However, while medical screening provides for a "visual analysis of the inmate," the written policy states that a "strip/strip frisk search" shall not be routinely conducted." While officers can search the inmate's bodily cavity if they think he is carrying contraband, the Sheriff testified that this has never actually happened. In addition, he testified, “inmates are never instructed to squat, bend, turn, open their mouth, manipulate their body, or in any other manner expose themselves for a personal search or inspection” during the clothing exchange.

But the inmates say the practice is degrading. One said he had to disrobe in front of a male officer, although no one touched his body. An officer corroborated inmate testimony that the jail has deviated from its policy. "According to Officer Kenyon, inmates are required to stand in front of him and face him during the entire clothing exchange. He watches the inmates as they remove their clothing, the disrobing takes place in the 'holding cell where the inmate is at,' and there is no option to disrobe in private."

The district court denied the County's summary judgment motion, but the Court of Appeals reverses, with Judge Sotomayor dissenting from Judge Miner's decision. The majority finds that the written strip-search policy complies with Second Circuit precedent requiring individualized reasonable suspicion (as opposed to a blanket policy that applies to everyone) before officials conduct these intrusive searches. Despite evidence that inmates had to remove their clothing in the presence of officers -- an embarrassing circumstance, no doubt -- the Court of Appeals says this incidental burden is necessary to ensure proper functioning of the jail:

We conclude that the incidental observation of the body of an arrestee during a required clothing exchange, in the manner described by plaintiffs, is not an unreasonable search under the Fourth Amendment. Moreover, it seems to us that a clothing exchange observed by corrections officers under the circumstances described by plaintiffs is related to “maintaining institutional
security and preserving internal order and discipline[,] essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.” Bell v. Wolfish, 441 U.S. 520, 546 (1979). The objectives served by a clothing exchange, according to Sheriff Bates, include assurance that each inmate has clothing that is clean and free of infestation; that inmates are clearly identifiable and distinguishable from visitors, staff and members of the public; and that a positive state of mind be instilled in each inmate.

Judge Sotomayor dissents, accusing the majority of ignoring evidence favorable to the inmates (this was a summary judgment motion, after all) as well as Second Circuit precedent on strip searches. She adds, "insofar as the majority suggests that 'brief[]' exposure of one’s private parts does not implicate the Fourth Amendment, ... our precedent does not support the notion
that a search need be prolonged or thorough to be termed a 'strip search.'” She adds, "the majority seems to suggest that the disrobing procedure at issue in this case 'does not implicate the type of privacy protected by the Fourth Amendment' and is distinguishable from traditional strip searches of persons charged with misdemeanors because of the motives of the officers conducting the procedure. But the privacy interests protected by the Fourth Amendment do not become irrelevant merely because we use the nomenclature of 'clothing exchange' instead of 'strip search.'”

Did the Supreme Court wipe out supervisory liability in Section 1983 cases? It sure looks that way

For obvious reasons, the Supreme Court's decision last week in Ashcroft v. Iqbal, 2009 WL 1361536 (May 18, 2009), generated a lot of media attention since it got John Ashcroft and former FBI director Robert Mueller off the hook in a claim arising from detainee abuse in the post-9/11 environment. But tucked away in the decision is another holding that has serious consequences for routine Section 1983 claims.


Most of the Courts of Appeal have recognized some form of supervisory liability under Section 1983. Of course, under settled Supreme Court authority, Monell v. Department of Social Services, 436 U.S. 658 (1978), there is no respondeat superior liability in these cases. In other words, a supervisor is not guilty of civil rights violations solely by virtue of his position as supervisor. But at least in the Second Circuit, supervisors could still be held liable if they knew their subordinates were committing a civil rights violation and they looked the other way or ignored it. Here's the precise test the Court of Appeals has repeatedly set forth in these cases, as taken from Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995):

“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under Section 1983.’” The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Id.

That language in Colon v. Coughlin has been cited frequently in the Second Circuit. Before the Supreme Court in Iqbal rejected the Complaint's allegations against Mueller and Ashcroft on grounds that the allegations were not plausible under the new standard outlined in Twombly v. Bell Atlantic, 550 U.S. 544 (2008), it paused to reject the Complaint's allegations that these defendants were liable because of their "knowledge and acquiescence in their subordinates' use of discriminatory criteria to make classification decisions among detainees."


Citing a few of its precedents which hold that constitutional discrimination claims require "discriminatory purpose," the Court breathes new life into Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979), which held that purposeful discrimination requires more than "intent as volition or intent as awareness of consequences" and that the decisionmaker must undertake a course of action "because of, not merely in spite of, the action's adverse effects upon an identifiable group." The Feeney precedent, together with Monell, means that supervisory liability cannot attach under Section 1983. In fact, the Supreme Court holds, "In a Section 1983 suit or a Bivens action -- where masters do not answer for the torts of their servants -- the term 'supervisory liability' is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct."


As the various circuit courts have long recognized some form of supervisory liability over the years, it is odd that the Supreme Court would reject that theory of liability in such a relatively cursory manner. Is supervisory liability under Section 1983 gone for good? It sure looks that way.


To really gain a sense of what happened to supervisory liability, read Justice Souter's dissent. This was a 5-4 decision, by the way. Souter points out that the government in this case actually conceded that Ashcroft and Mueller could be liable under some form of supervisory liability if the Complaint properly alleged facts that would implicate them (the government argued that the Complaint was deficient, and the Supreme Court agreed). Despite that concession, and the fact that none of the parties even briefed the issue of whether Section 1983, should recognize some form of supervisory liability, the Supreme Court resolved the issue anyway.


Making matters even more curious, the Supreme Court did not even have to rule on the legality of supervisory liability under Section 1983 because it also ruled against the plaintiff on a separate basis: that the Complaint did not allege a plausible claim against Ashcroft and Mueller. In chastising the majority for jumping the gun on this issue, Souter notes that the Second Circuit and other federal courts have long recognized this theory of liability but that the five Justice majority has effected a significant change in Section 1983 liability: "Lest there be any mistake, ... the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely."

Gender stereotyping cuts both ways

The Second Circuit has reversed summary judgment in a reverse gender-discrimination case where the male plaintiff claims he was forced to resign because management applied an unfair stereotype in believing that he was guilty of sexual harassment.

The case is Sassaman v. Gamache, decided on May 22. The case is notable because it emphasizes that men accused of sexual harassment have rights also. So far as I can tell, this is an issue of first impression for the Second Circuit, and based on its failure to cite any cases from around the Circuits in support of its reasoning, this may be a case of first impression under Title VII.

Here's what happened: Sassaman worked for the Dutchess County Board of Elections and had a female supervisor, Brant. Sassaman and Brant got along, until Brant tried to initiate a one-time sexual encounter with Sassaman, who remembered the conversation differently, believing that Brant was trying to to seduce Brant. Things took a turn for the worse when Sassaman got into her email account when he suspected her of hacking into his email account. Then Brant complained that Sassaman was harassing and stalking her, and the sheriff's office investigated but found nothing. There was no internal investigation into the sexual harassment allegation at the Board of Elections, however. Sassaman then resigned after Gamache told him, "'I really don’t have any choice. Michelle [Brant] knows a lot of attorneys; I’m afraid she’ll sue me. And besides you probably did what she said you did because you’re male and nobody would believe you anyway.'”

Summary judgment is reversed. First, the Second Circuit (Cabranes, Hall and Feinberg) applies the age-old rule that gender stereotyping in the workplace violates Title VII. Sassaman has a prima facie case of discrimination because Gamache stereotyped him as a sexual harasser. Citing Back v. Hastings on Hudson School District, 365 F.3d 107 (2d Cir. 2004), the Court of Appeals reasons, "Gamache appears to have defended his decision to credit Brant's allegations of sexual harassment by pointing to the propensity of men, as a group, to sexually harassment. When employment decisions are based on invidious sex stereotypes, a reasonable jury could infer the existence of discriminatory intent."

The employer argued that Gamache did not break the law because it simply wanted to avoid a lawsuit by Brant. No dice, the Court of Appeals says. While employers who do not take sexual harassment claims seriously expose themselves to liability, that does not mean they can discriminate against the men accused of harassment. "In the course of investigating such claims, employers do not presume male employees to be 'guilty until proven innocent' based on invidious sex stereotypes."

Another reason the employer loses is that it did not investigate Brant's claims at all, instead taking her accusations at face value. While employers do have leeway in dealing with workplace problems, the Court of Appeals says, "Title VII suits often require a court or jury to consider whether a employer's response to an allegation of discrimination itself constitutes evidence of discrimination or liability for discrimination." Since management did not investigate Brant's claim and applied a stereotype in forcing Sassaman to resign, the jury can find in Sassaman's favor.

The Court emphasizes that management's failure to investigate a woman's sexual harassment claim is not enough by itself for the alleged harasser to sue under Title VII. "We hold only that where a plaintiff can point to evidence closely tied to an adverse employment action that could reasonably be interpreted as indicating that discrimination drove the decision, an arguably insufficient investigation may support an inference of discrimination."

Iqbal and the plausibility test in constitutional cases

The Supreme Court's decision on May 18 in Ashcroft v. Iqbal is notable for its holding that the former attorney general and FBI director cannot be held liable for post 9/11 detention policies. But other aspects of this decision are relevant to civil litigators who sue government officials under 42 U.S.C. sec. 1983.


In 2007, the Supreme Court reshaped the pleading rules in Bell Atlantic v. Twombly, 550 U.S. 544, holding that a complaint satisfies the federal rules if it alleges a "plausible" (as opposed to a possible) claim for relief. Until the Courts of Appeal amplify this standard, application of this test will depend on the judge. As the Supreme Court tells us in Iqbal, "Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."


The plausibility standard under Iqbal in Section 1983 claims dooms the case against John Ashcroft and former FBI Director Robert Mueller. As a Pakistani Muslim, Iqbal sued these officials (among others) after he was detained in a post-9/11 sweep, claiming that he was brutalized in a detention center in New York City. Iqbal alleges that Ashcroft and Mueller are liable because they "knew of, condoned, and willfully and maliciously agreed to subject [him] to harsh conditions of confinement as a matter of policy, solely on account of [his] religion, race and/or national origin and for no legitimate penological interest." He further alleged in the complaint that Ashcroft was the "principal architect" of this policy and Mueller was "instrumental" in adopting and executing it.


Let's face it: allegations like this in constitutional claims are commonplace in drafting complaints against supervisory officials. Not anymore. While Twombly was a case involving the Sherman Act, the Supreme Court makes it clear that it applies in other contexts, including Section 1983 complaints. These complaints will have to be more specific to repel a motion to dismiss under Rule 12. Twombly is truly the law of the land.

But there's more. The plausibility standard under Twombly requires the trial court under Rule 12 to really think about whether the complaint can go forward. Who knows how this will shake out in routine civil rights cases involving employment discrimination or local police abuses. But the plausibility test kills Iqbal's case against Ashcroft and Mueller. As the Supreme Court applies the standard, it is not enough for the facts in the complaint to be consistent with a constitutional violation. It must be plausible. There is a difference. The Court says, "The plausibility standard is not akin to a 'probability requirement,' but it ask for more than a sheer possibility that a defendant has acted unlawfully."

Under this standard, in the context of the post-9/11 effort to prevent another terror attack, Iqbal's claim that Ashcroft and Mueller designated detainees "of high interest" because of their race, religion or national origin is not plausible in light of the other, obvious reason why these officials rounded up detainees, i.e., because the 9/11 hijackers were "Arab Muslims who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group."


The realities of the post-9/11 world doom Iqbal's case. The Court explains, "On the facts [Iqbal] alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegal present in the United States and who had potential connections to those who committed terrorist acts. As between that 'obvious alternative explanation' for the arrests, and the purposeful, invidious discrimination [Iqbal] asks us to infer, discrimination is not a plausible conclusion."


What makes this decision remarkable is that the Supreme Court found other reasons why the plaintiff was rounded up, all without the benefit of discovery. The Court takes judicial notice of what happened after 9/11, when the government was reacting to the terror attacks. Remember, this case comes before the Supreme Court in a Rule 12 posture, where the court has nothing but the complaint and no other evidence to assist it.


While it may be that there were other reasons for the government to round up Iqbal, I wonder if this kind of legal reasoning awaits more routine civil rights cases. Will district judges read a civil rights complaint and weigh other reasons for the plaintiff's mistreatment under the plausibility standard, dismissing the case if other "obvious" reasons explain that mistreatment? As the Court states in its decision, this is a context-specific test. It may be that plausibility is too high a burden for civil rights plaintiffs alleging serious misconduct by high-ranking officials like Ashcroft and Mueller. Or this reasoning could tempt trial courts to more readily dismiss more garden-variety civil rights cases. The Supreme Court doesn't say one way or the other.

Direct evidence of ageist bias not enough to survive summary judgment

Plaintiffs sued an employer which fired them in a reduction in force. One plaintiff is Ledlum, and another is Zaremski, both of whom claim that a decisionmaker made ageist remarks. That evidence is not enough. Summary judgment for the employer is affirmed.


The case is Crawford v. Department of Investigation, decided by summary order on May 13. The Court of Appeals certainly provides a good summary of the current state of employment discrimination law and the burdens of proof that the parties must satisfy. After noting that the plaintiff must prove a prima facie case of discrimination and the employer has to then articulate a neutral reason for the discharge, the Court says:

If and when the employer meets that burden of production, "'the McDonnell Douglas framework . . . disappear[s] and the sole remaining issue . . . [is] discrimination vel non.'" The plaintiff must then prove the ultimate issues without any "benefit of . . . intermediate burdens and presumptions." The plaintiff may satisfy this burden by showing "pretext," i.e., that the employer's proffered reason was false; but even in the absence of such a showing, a plaintiff may prevail by demonstrating that "an employment decision was motivated both by legitimate and illegitimate reasons."

"[I]f the record conclusively reveal[s] [a] nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact [as to pretext] and there [i]s abundant and uncontroverted independent evidence that no discrimination ha[s] occurred," then the employer is entitled to judgment as a matter of law. (Citations omitted).

A plaintiff's lawyer cannot ask for a better summary of the law. But the case is dismissed even though the plaintiffs produce direct evidence that a decisionmaker, Green, made age-related comments reflecting hostility toward older workers.


Plaintiff Ledlum says that Green "asked at a meeting in which news of the layoffs was transmitted, "Do you think I would leave my young guys who are working, who are working real good[?]" And plaintiff Zaremski stated that Green said she was "too old" for Peace Officer training.


These admissions are not enough for the plaintiffs to win their age discrimination case. The Court of Appeals concludes that these admissions "come from one uncorroborated source, nothwithstanding the fact that the comments were allegedly made to groups of people who could have been deposed." In addition, the Court says, Ledlum could not remember Green's statement with "specificity" and, as for Zaremski's evidence, Green's admission fails because Green made this ageist comment one year before everyone was let go.


The Court of Appeals is saying that the Ledlum comment is not enough by itself for a trial. But isn't the comment -- "Do you think I would leave my young guys who are working, who are working real good?" -- the kind of statement that would permit the jury to conclude that the reduction-in-force fell heavily on older workers? The Court of Appeals does not provide additional reasoning, but the district court ruling addresses this evidence in a footnote:

Plaintiffs argue that “age-related remarks” are evidence of age discrimination. For example, they argue that Green told Plaintiff Zaremski she was “too old” for Peace Officer training and that Green stated that he wanted to retain younger employees who were doing a good job. Assuming, arguendo, that DOI supervisors made age-related remarks, DOI's evidence that Plaintiffs' jobs were eliminated or that Plaintiffs' were terminated for poor performance remains unrebutted. Crawford v. Department of Investigation 2007 WL 2850512, *5 (S.D.N.Y. 2007).

Habeas petition is tossed because "show-up" identification was not too illegal

The 1996 habeas corpus law continues to bedevil federal judges who have to decide whether a state court criminal conviction violates the Constitution, allowing the prisoner to go free. But under that law, it's not enough to find that the conviction was unconstitutional. The conviction has to unreasonably apply clearly established Supreme Court precedent. For some prisoners, their conviction was illegal, but not too illegal.

The case is Brisco v. Ercole, decided on May 13. The criminal defendant was convicted of burglary and petit larceny. An elderly neighbor complained that someone had invaded her house and that he ran away. He was wearing maroon shorts. The police canvassed the neighborhood and found Brisco, who claimed to renovating his sister's house. The police asked Brisco if he would stand in front of the victim's house next to the officers and in front of the police cars. He also agreed to place his maroon shorts over his pants so the victim could determine if Brisco looked like the burglar. "That's him," she said, between 15 and 50 feet away, looking at Brisco from inside the house. Brisco was convicted and then challenged that conviction in federal court under the habeas corpus statute.

The federal trial court determined that the police "line up," such as it was, was unconstitutional because it was too suggestive. After all, Brisco was standing next to police officers and their vehicles when the victim identified him. In particular, according to the Court of Appeals, the trial judge decided that "the circumstances of the nascent police investigation did not create a need or exigency to justify a showup, as opposed to a lineup or some other means of identification, and (2) the circumstances of the showup itself were 'highly' and 'impermissibly suggestive.'”

The Second Circuit reverses the habeas grant, and Brisco is again a guilty man. The state court conviction did not unreasonably apply clear Supreme Court authority. While it's true that "show up" identifications involving one suspect have been “widely condemned, a claimed violation of due process in the conduct of a confrontation depends on the totality of the circumstances surrounding it." Stovall v. Denno, 388 U.S. 293, 302 (1967). For the show-up identification to be illegal, it has to be "unnecessarily" suggestive.

So here is the legal standard in a nutshell:

Even if an identification procedure is unduly suggestive, the out-of-court identification may nonetheless be admissible if other factors indicate that the identification is independently reliable. To ascertain whether an identification “has reliability independent of the unduly suggestive identification procedures,” courts generally look to five established factors, first set forth in Neil v. Biggers, 409 U.S. 188 (1972):

[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness’ prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation.

The state court that convicted Brisco did not unreasonably apply Supreme Court precedent. Under the legal standard governing show-up identifications, trial courts have significant leeway in exercising judgment on these issues. Among other things, the Second Circuit noted, the New York Court of Appeals (which heard Brisco's appeal in the state system) "concluded that the [identification] procedure[ ] used w[as] reasonable under the circumstances” because it “took place at the scene of the crime, within an hour of the commission of the crime, and in the context of a continuous, ongoing investigation. The circumstances of the ongoing investigation, in the court’s view, made the procedure reasonable. Second, the [state] Court of Appeals concluded that the identification procedure was not 'unduly suggestive,' because Kemper, the eyewitness, 'initially and independently identified [Brisco,] relying on his height, hair color, and build.'”

The fact-intensive nature of these inquiries gives state courts the benefit of the doubt on the legality of show-up identifications. So even if the identification was in fact illegal under the U.S. Constitution, the defendant loses the habeas petition because the state court did not unreasonably apply Supreme Court precedent.

Nothing beats direct evidence

Employment discrimination cases are a hit-or-miss affair. You can get to a jury if the employer's reason for your termination is false, but then again maybe not. In 2000, the Supreme Court held in Reeves v. Sanderson Plumbing, 530 U.S. 133, that pretext is usually enough to win. But that decision holds out the possibility that in some cases, pretext will not be enough. Post-Reeves, the Second Circuit has held in many cases that pretext was not enough, see, e.g., Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000) and James v. New York Racing Association, 233 F.3d 149 (2d Cir. 2000). But in 2007, the Court of Appeals reversed summary judgment solely on the basis of pretext. D'Cunha v. Genovese/Eckerd, 479 F.3d 193 (2d Cir. 2007).

So you want a jury trial? Find some direct evidence. The case is Bell v. Rochester Gas & Electric, a summary order decided on May 7. The district court dismissed this discriminatory discharge case on summary judgment, concluding that the plaintiff did not produce evidence of discriminatory intent. Plaintiff Bell tried to show pretext through a discriminatory email sent by his superior, William Diamond. But that email is not admissible because Bell could not prove that it was sent and received through the corporate email system.

All is not lost for Bell. He produced an affidavit from a co-worker who quoted Diamond stating that he wanted to fire Bell because of his race. Well, this is better than proving your case through pretext, right? Except that the district court rejected this affidavit because, it concluded, Diamond played a marginal role in Bell's termination. But the Court of Appeals sees it differently. Diamond was present when Christian Modesti, Diamond’s supervisor, confronted Bell about his alleged workplace misconduct. Also, "Diamond made the formal, written recommendation to Modesti that Bell be terminated. Even if Modesti asked Diamond to write up the recommendation and Modesti made the ultimate decision to terminate Bell, we conclude that Diamond’s involvement in Bell’s discharge could not, on a motion for summary judgment, be dismissed as insignificant."

So the incriminating affidavit describing Diamond's discriminatory intent to fire Bell is relevant, as Diamond was not standing on the sidelines. As Diamond had at least something to do with Bell's termination, that affidavit is enough for Bell to win.

Qualified immunity: the ultimate loophole

You can have a constitutional claim against a government official, but if the case does not closely resemble prior cases, then the defendant gets the benefit of the doubt and he (or she) is immune from suit. It's the ultimate loophole.

The case is Kennedy v. Lehman, a summary order decided on May 6. In this case, the plaintiff was Crew Chief for the Department of Public Works in Erie County. He was supervised by Douglas Naylon, who filed an EEO charge of discrimination against the County. Kennedy was a witness to the discrimination alleged by Naylon. Kennedy himself was then fired, allegedly for pretextual or false reasons. Kennedy claimed that the real reason for his termination was that he was a potential witness for Naylon's claim. This sure sounds like a First Amendment claim for Kennedy, doesn't it?

Well, yes and no. Ruling in Kennedy's favor on this issue, the trial judge in this case observed that, in 2005, the Second Circuit held in Konits v. Valley Stream Central School District, 394 F.3d 121 (2d Cir. 2005), that "a public employee's willingness to be a potential witness in a co-worker's claim of employment discrimination is 'speech on a matter of public concern' deserving of First Amendment protection.'" But that's not enough for Kennedy's case to go forward. Why? Qualified immunity.

Qualified immunity means the public official cannot be sued if the law was unclear at the time of the alleged violation. "The law" in this context is usually case law decided by the Second Circuit or the Supreme Court. If the case law was vague in this area at the time of the violation, then the defendant is off the hook because he cannot be expected to know that the courts would later conclusively find in a different case that his conduct was illegal. What kills the case for Kennedy is that even assuming the trial court accurately described the ruling in Konits, "the law of this Circuit as to whether a retaliation claim such as Kennedy’s was actionable under the First Amendment was unsettled until that case was decided. In fact, Konits explicitly states as much." Then the Court of Appeals quotes from the relevant portion of Konits:

Prior to our decision today, there was a split among the district courts in this Circuit as to whether retaliation based on identification as a witness in a fellow employee’s discrimination suit could give rise to a First Amendment cause of action. Compare Nonnenmann v. City of New York, 174 F. Supp. 2d 121, 136 (S.D.N.Y. 2001) with Catletti v. County of Orange, 207 F. Supp. 2d 225, 229 (S.D.N.Y. 2002). By our decision today, we resolve this split and hold that any use of state authority to retaliate against those who speak out against discrimination suffered by others, including witnesses or potential witnesses in proceedings addressing discrimination claims, can give rise to a cause of action under 42 U.S.C. § 1983 and the First Amendment. To the extent that Nonnemann holds otherwise, it is overruled.

So while Konits may provide support for Kennedy's claim, it was decided in 2005. Kennedy was retaliated against in 2002 and 2003. While the law in this area was clear in 2005, it was not clear in 2002-03. Kennedy therefore has no First Amendment case against these defendants, after all, and the trial court is reversed on this issue. So while, in hindsight, Kennedy has a real claim against the County officials who retaliated against him, since those defendants could not have seen Konits coming, they are entitled to qualified immunity, the ultimate loophole.

As a footnote, I always wondered about that language in Konits which says that it was not clear before 2005 that testimony on behalf of other employees who were claiming discrimination is protected under the First Amendment. Konits cites Catletti v. County of Orange, 207 F. Supp. 2d 225 (S.D.N.Y. 2002) as a case that conflicted with another Southern District case, Nonnenmann. But Catletti (which I argued) was affirmed by the Court of Appeals in 2003. In Catletti, the Court of Appeals concluded, "we agree with the district court that uninhibited testimony is vital to the success of our courts' truth-seeking function. As we said in United States v. Pacelli, 'the foundations of federal justice will be undermined' if witnesses are not able to testify freely. 491 F.2d 1108, 1113 (2d Cir. 1974). The paramount importance of judicial truth-seeking means that truthful trial testimony is almost always of public concern." Under Catletti, wasn't this area of the law clear in 2003?