Religious materials at the post office violate the Establishment Clause

A post office in Manchester, Connecticut uses contract postal units (CPU), which are postal facilities operated by private entities on private property (such as general stores or private homes) pursuant to contracts with the U.S. Postal Service. In other words, the post office – obviously a governmental function – operates on private property. So what’s the problem? The Manchester CPU is a storefront with postal facilities on one side and the Full Gospel Interdenominational Church’s outreach and ministry efforts on the other, with some spillover. This creates an Establishment Clause problem.

The case is Cooper v. U.S. Postal Service, decided on August 20. Cooper sued under the Establishment Clause of the First Amendment, which mandates the separation of church and state. Cooper was offended by the religious materials at the CPU, and according to his affidavit he was told “that [he] could go somewhere else if [he didn’t] like it.” Had the Post Office displayed religious materials in its usual government buildings, Cooper would certainly win. The kicker here is that a private entity is involved, which changes the constitutional calculus. Cooper won his case in the district court, and the Court of Appeals (Jacobs, Wesley and Crotty) affirms, but it modifies the remedy.

First, the underbrush. Resolving some procedural issues before it gets to the good stuff, the Second Circuit finds that Cooper has standing to bring the case. You have standing if you suffered some kind of injury from the challenged practice. Cooper testified that the religious displays were enough to send him to another post office; that gives him standing to sue. The Court of Appeals also finds that the CPU is a state actor, which means that although a private entity ran the postal operation, since handling and delivering the mail is normally a government function, the private entity may be treated as government actor and it must comply with constitutional standards.

While Cooper clearly prevails on these procedural questions, he kinda wins on the substance. He is right that the First Amendment is violated here, but the court order that he won in the district court is too broad. The religious display at the post office violates the Supreme Court’s Lemon test, as there is no secular purpose here. (Lemon was decided in 1971 and many commentators and judges dislike it because it is too difficult to apply, among other reasons). The Second Circuit finds that “the displays on the postal counter soliciting prayer requests and advertising the mission express a distinctly religious purpose, and that they fail spectacularly under the first inquiry of Lemon.” As the Court thus does not have to bother with the other two prongs of the Lemon test, this is good for Cooper.

But not good for the district court, which ordered the removal of all religious materials from the CPU even though the CPU also housed entities other than the church and the post office. The CPU was also ordered to stop advancing religious causes. The Second Circuit rejects this broad remedy. “The removal of all religious messages would render the premises a single-use post office, and would prevent the second legitimate use to which the premises are dedicated. This remedy does not correspond to the scope of the violation and the resulting harm.” The district court’s remedy is too broad. Religious materials do not have to be removed from the entire facility. They should only be removed from those parts of the facility where postal functions are located. Chief Judge Jacobs advises a more narrow court order: the CPU “is directed to create and install a barrier in front of the postal counter that is a visual cue and gives a sense of passage from one area of the space into another, thereby delineating space exclusively dedicated to the public function from space dedicated to other things.”

Second Circuit clarifies qualified immunity inquiry

I often write about qualified immunity. This a legal doctrine that allows public defendants in civil rights cases to win the case if their objectionable actions did not violate clearly established law even if, in hindsight, the court finds that their actions were in fact illegal.

Here is how qualified immunity works, in simplified form. Let's say the plaintiff alleges that a public official seized her political pamphlets at a board of education meeting. The public officials says the pamphlet distribution disrupted the meeting. The plaintiff says that the pamphlets were seized because they criticized board of education policies and that she did not disrupt anything. The plaintiff brings a lawsuit. The judge decides that there is no case law that resembles this fact pattern. So, while the judge decides that the seizure was in fact illegal, since the law was not clear at the time the pamphlets were confiscated (due to the lack of case law in the federal jurisdiction), the public official who seized the documents is immune from suit. The rationale behind qualified immunity is that the public official is not expected to know where the case law is headed and that she gets the benefit of the doubt in trying to discharge her public responsibilities.

In Okin v. Cornwall-on-Hudson, decided on August 18, the Court of Appeals dropped an interesting footnote (number 11) that attempts to clarify the qualified immunity inquiry. (The domestic violence portion of the decision is discussed here). The Court notes in the body of the opinion that "government actors are entitled to qualified immunity 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" The Court of Appeals then notes that "a police officer who has an objectively reasonable belief that his actions are lawful is entitled to qualified immunity. 'The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." This statement for the most part derives from Supreme Court authority on the issue.

As anyone who follows federal case law knows, however, Supreme Court authority has to be applied by the Court of Appeals, each of which may interpret Supreme Court authority differently. In footnote 11, the Second Circuit in Okin attempts to clear up conflicting language about what qualified immunity really means. Here's Judge Pooler:

Some cases frame the test as disjunctive: an officer “is entitled to qualified immunity if his conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for him to believe that his conduct did not violate such a right.” Gilles v. Repicky, 511 F.3d 239, 246 (2d Cir. 2007). This would imply that an officer whose actions violated clearly established law might escape liability if he had an objectively reasonable belief that his conduct did not violate the clearly established law. However, Saucier [v. Katz, 533 U.S. 194] makes it clear that the “objectively reasonable” inquiry is part of the “clearly established” inquiry. 533 U.S. at 202. ... Thus, once a court has found that the law was clearly established at the time of the challenged conduct and for the particular context in which it occurred, it is no defense for a police officer who violated this clearly established law to respond that he held an objectively reasonable belief that his conduct was lawful. This is so because a police officer who violates clearly established law necessarily lacks an objectively reasonable belief that his conduct was lawful. We clarify here that the two are part of the same inquiry, not independent elements as some cases suggested.

What does this mean? It means that, through footnote 11, the Court of Appeals is saying that, if the state of the law was clearly established at the time of the alleged violation, the qualified immunity analysis ends. The analysis should not include the question of whether the officer reasonably believed that his conduct was lawful. In practical terms, this means that there only one inquiry in resolving the qualified immunity question: whether the law was clearly established. Many cases in the past have -- after determining that the law was clearly established -- ruled in favor of the defendant on qualified immunity grounds because the defendant public officer acted reasonably under the circumstances. This usually happens when the officer is presented with a strange or difficult factual scenario and has to use her judgment in the course of her public responsibilities. This footnote has important implications for Section 1983 cases, which often raise a qualified immunity defense. Under footnote 11, more civil rights cases against public officials would go to trial.

A footnote to the footnote: the Court's clarification of the qualified immunity inquiry was first raised in the Second Circuit a few years ago when then Circuit Judge Sotomayor made this argument in a concurring opinion. That was in Walczyk v. Rio, 496 F.3d 139, 165 (2d Cir. 2007). I wrote about that concurrence here. Judge Sotomayor was on the Okin panel until she was elevated to the Supreme Court. Since her nomination to the Supreme Court was pending while the Court of Appeals decided this case, she did not take part in deciding Okin.

Domestic violence victim may sue callous police officers

Michelle Okin was a lawyer in Orange County whose boyfriend, Sears, repeatedly kicked the hell out of her. She complained to the police about this domestic violence, but the police did not take her complaints seriously. In fact, although Sears told the police that "he smacked Okin around and could not stop himself from behaving in this manner," the police implicitly but affirmatively encouraged Sears' behavior by discussing football with Sears in responding to her complaints and "repeatedly communicated to Sears that his violence would go unpunished." Does she have a constitutional claim against the police? Yes.

The case is Okin v. Cornwall on Hudson, decided on August 18. Who wouldn't sympathize with Okin? The police are there to protect the victims of domestic violence, not the perpetrators. But in a well-known case decided 20 years ago, DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the Supreme Court held that the "state's failure to protect an individual against private violence does not constitute a violation of the Due Process Clause." That's right, the police are not always constitutionally required to help you. There are ways around this ruling, but, Lord, it's not easy. The Okin case gets around the DeShaney ruling.

First, the Court of Appeals has to deal with the morass of case law that has developed in the wake of DeShaney. That's probably one reason it took the Second Circuit more than a year to resolve this appeal. In Dwares v. City of New York, 985 F.3d 94 (2d Cir. 1993), the Court of Appeals said the due process clause may be violated when the police affirmatively create or increase the risk of private violence, such as when they aid or abet the private actor's violence against someone else. While Okin does not show that the police affirmatively enhanced the risk of violence by making explicit assurances to Sears that he could get away with it, the Second Circuit's decisions over the years also stand for the proposition that "the affirmative conduct of a government official may give rise to an actionable due process violation if it communicates, explicitly or implicitly, official sanction of private violence." This is how Okin wins the appeal (the trial court dismissed her case) and gets a jury trial. As the Second Circuit (Pooler and Straub) holds:

A reasonable factfinder ... could infer that defendants' actions, such as discussing football with Sears during their response to Okin's complaint that he had beaten and tried to choke her, 'plainly transmitted the message that what he did was permissible and would not cause him problems with authorities.' Moreover, the evidence suggests that the defendants repeatedly communicated with Sears that his violence would go unpunished, as when Sears told Williams that he could not 'help it sometimes when he smacks Michelle Okin around' and Williams made no arrest, and also, on the numerous occasions that defendants responded to Okin's complaints without filing a domestic violence report, interviewing Sears, or making an arrest. A reasonable view of the evidence supports the inference that defendants' actions rise to the level of affirmative conduct that created or increased the risk of violence to the victim.

In other words, the defendant police officers enhanced the danger to Okin in conveying to Sears that he could continue to engage in domestic violence without punishment. This is a significant holding, as many cases fail when the plaintiff argues that the government violated the due process clause in failing to come to their assistance in the face of danger.

The Court of Appeals also reinstates Okin's substantive due process claim. The due process clause has been interpreted to prohibit governmental conduct that shocks the conscience. Claims under this theory are also difficult to sustain. Only the most outrageous governmental conduct suffices under the substantive due process rule. Okin satisfies this standard, the Second Circuit holds, because defendants' affirmative creation/enhancement of the risk of further domestic violence to Okin shocks the contemporary conscience. As the Court of Appeals observes, "the serious and unique risks and concerns of a domestic violence situation are well known and well documented." The officers knew better than to enhance the danger to Okin, the Court reasons. As I read the opinion, Sears could have killed this woman.

Finally, the Court of Appeals resolves the qualified immunity question. Public officials are immune from suit if their alleged misconduct is objectively reasonable even if, in hindsight, their conduct was illegal or misguided. This form of immunity gives special protection to police officers who are not expected to master the nuances of the law and have to act on a moment's notice in handling difficult problems on the street and elsewhere. But officers have no immunity if their conduct is objectively unreasonable in light of existing case law. Under the Dwares case that I mentioned earlier, the officers knew "that a police officer can violate a person's due process rights by affirmatively creating or increasing the risk of private violence" against the plaintiff. In Dwares, the police told some skinheads that their violence against another person would not be stopped. The Okin case is close enough to Dwares that the officers should have known that they were violating Okin's rights under the Constitution.

First Amendment may protect public worker who complained about workplace bullying

Public workers have the right under the First Amendment to speak out on matters of public importance without retaliation. There are more nuances under this theory of liability than you can imagine. The Court of Appeals has to iron out those nuances from time to time, as the case law is often unclear or contradictory. Another nuance has been ironed out.

The case is Sousa v. Roque, decided on August 21. A public employee in Connecticut began complaining about workplace violence in the Department of Environmental Protection. It all started when the plaintiff, Sousa, got into an altercation with a co-worker, but his complaints went beyond that fracas as he spoke up about a form of group harassment called “mobbing,” “which is a process of abusive behavior over time,” according to the Second Circuit.

Sousa spoke out in a variety of ways, and his complaints culminated in an email in which he referenced a book on “mobbing” to members of the DEP’s Workplace Violence Threat Assessment Team. He wrote, “When you read the book you will recognize that mobbing can often result in the death of the victim, either due to illness, accident or suicide. Another reference suggested that, in light of such ramifications, workplace mobbing should be viewed as the last remaining legal means of committing homicide. I personally see it as a form of group vigilantism.” That did it. Management sent Sousa to a fitness examination to see if he was mentally fit to work. After a series of absences from work, an independent examiner found that Sousa was able to work again, but he did not show up, and he was fired for unauthorized absences.

The question on appeal is whether Sousa’s speech touched upon a matter of public concern. The district court ruled that Sousa’s speech only addressed a personal grievance, which is not protected under the First Amendment. One of the factors in making this determination is the plaintiff’s motive for speaking out, i.e., if the worker was motivated by his own grievances, the speech is generally not protected under the First Amendment. But it’s not so simple. Over the last decade or so, the Second Circuit has been kicking around this concept, holding in Reuland v. Hynes, 460 F.3d 409 (2d Cir. 2006) that the speaker’s motive is not dispositive, i.e., he can still win the case even if the “public concern” speech was calculated in part to address a personal grievance. But a few years later, in Ruotolo v. City of New York, 514 F.3d 184 (2d Cir. 2008), the Second Circuit seemed to emphasize the speaker’s motive in speaking out in determining whether the speech was calculated to address her personal grievance. In other words, Ruotolo could be interpreted to mean that the speaker’s personal motive in speaking out is dispositive and that the speech is not protected under the First Amendment if it addressed in some way his own grievances.

So which is it? Reuland or Ruotolo? The Second Circuit (Cabranes, Hall and Gleeson), clears it up, stating, “To the extent that our precedents have been less than clear, we reaffirm today our holding in Reuland: a speaker’s motive is not dispositive in determining whether his or her speech addresses a matter of public concern.” The Supreme Court wants it that way, the Second Circuit notes. The Justices held in the seminal public employee free speech case, Connick v. Myers, 461 U.S. 138 (1983), that an assistant district attorney was found to have engaged in public concern speech in speaking out on matters which mirrored her personal grievances.

The Second Circuit cautions that “this holding does not negate the fact that ... 'speech on a purely private matter, such as an employee’s dissatisfaction with the conditions of his employment, does not pertain to a matter of public concern.’ An employee who complains solely about his own dissatisfaction with the conditions of his own employment is speaking ‘upon matters only of personal interest.’ We make clear today, however, that it does not follow that a person motivated by a personal grievance cannot be speaking on a matter of public concern.” The case is sent back to the district court for reconsideration in light of this clarification.

What's fair is fair for Bronx gun shop in due process case

A gun shop in The Bronx was raided in October 2001, one month after the terrorist attacks, when NYPD was trying to provide enhanced security in the region. The gun shop, Olinville Arms, was raided without a warrant, and the shop's security was deemed "grossly inadequate." The store got its license back a few months later after the owner, Spinelli, promised to improve store security. In a case that clarifies due process in the context of a business search and seizure, the Second Circuit rules in the gun shop's favor.

The case is Spinelli v. City of New York, decided on August 7. New York City regulations allow authorities to inspect gun dealers "at all times by members of the Police Department." Failure to comply with this rule means the store will lose the dealer's license for good cause, after notice of the charges and the opportunity for a hearing.

While the store re-opened, Spinelli lost business during the time it was closed. So Spinelli did what any red-blooded American would do when they get shafted by the government. Lawsuit. Not all claims survive the Second Circuit's ruling, but Spinelli gets that rare grand slam in the Court of Appeals: a claim is not only reinstated by the Court of Appeals but the court directs that summary judgment be entered in her favor.

First, the losing claim. The warrantless search claim fails because, although the Fourth Amendment prohibits unreasonable searches and seizures and most warrantless searches are illegal, gun shops and other "closely regulated industries" enjoy reduced privacy protections. While Spinelli claims the officers had ulterior motives in searching the business, subjective intent is irrelevant in assessing Fourth Amendment search and seizure cases. What ends the case for Spinelli is that City regulations allow the police to search these kinds of businesses "at all times." The Constitution does not require search warrants where the burden of obtaining a warrant would frustrate the reasons for the search. The Court of Appeals holds that "an effective inspection of a gun dealer's premises requires that searches be unannounced in order to discover potential security infractions." (Judge Sotomayor was on the panel but did not decide the appeal as she now sits on the Supreme Court. I wonder if Second Amendment advocates would have used this case against her).

On the other hand, Spinelli wins it all on her due process claim. Under the Fourteenth Amendment, the government cannot seize your property without notice and an opportunity to be heard. If you think this concept is easy, you should know that an entire volume of the U.S. Code is devoted to fine-print annotations governing precisely what kind of process is due in an untold number of factual scenarios. This is due, in part, to Mathews v. Eldridge, 424 U.S. 319 (1976), which devises a three-part test which weighs the government's interest in seizing the property, the private interest in retaining the property and the risk of an erroneous seizure.

Spinelli wins this three-way test. Her interest in retaining her license is strong, the Court of Appeals holds, because she is operating a business and is pursuing a livelihood. Surprisingly, there is little case law on this issue. The Second Circuit cites an unpublished Tenth Circuit case and some general language from the Supreme Court on the severity of stripping someone of her livelihood. Further supporting Spinelli's due process claim is the fact that the notice of alleged violations was vague in stating simply that security at the gun shop was inadequate. No particularity means that Spinelli had to guess about the nature of the security breaches. Hey, what's fair is fair.

The more complicated due process issue is whether the City denied Spinelli an opportunity to be heard after the government raided the store. The Court rejects the City's argument that no due process was required because Spinelli's lawyer quickly negotiated an end to the dispute and Spinelli got her property back. The Court also takes the City to task for not providing a hearing until after the investigation runs its course. "The City's blanket policy of only providing a hearing after the investigation is completed cannot be squared with due process." As the City concedes the hearing may take place months or years after the raid, due process requires more. Here again, the Court of Appeals relies on legal authority from the other Circuits on this issue. It is now the law in the Second Circuit. As that kind of delay serves no purpose and "would have wiped out Spinelli's livelihood," the City loses this part of the analysis.

As the Second Circuit next finds that the City has no legitimate interest in delaying resolution of its dispute with Spinelli while her business twists in the wind, it's a clean sweep for Spinelli, who not only succeeds on reversing the district court's ruling but persuades the Court of Appeals that she is entitled to summary judgment. The case is remanded to the district court for a damages inquest.

Second Circuit gives one to the inmates

Inmates have a little slice of constitutional law to call their own. If they are unfairly disciplined in the state prison system, the due process clause is there for them. These cases are not easy to win, but it's better than nothing.

The case is Davis v. Barrett, decided on August 7. Prisoners have a liberty interest in the disciplinary process. If an inmate does something wrong in jail (such as promoting contraband, insubordination, or ... you get the picture), he is subject to discipline triggered by notice of the charges and a hearing. These hearings are not exactly adversarial proceedings, but the inmate does have a chance to defend himself, although the hearing officer is allowed to use reliable informant testimony, usually accounts from other inmates who do not testify at the hearing.

The inmate can sue under the due process clause if the discipline "imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." The Supreme Court devised that standard in Sandin v. Conner, 515 U.S. 472 (1995). The Second Circuit has held that "factors relevant to determining whether the plaintiff endured an atypical and significant hardship include the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions and the duration of the disciplinary segregation imposed compared to disciplinary confinement." The reason the courts focus on atypical confinement is that inmate discipline usually involves solitary confinement, which can either be too long or too brutal.

In this case, the inmate wins the appeal. True, courts are reluctant to second-guess the decisionmaking of prison officials, particularly when it comes to discipline. But hey, even prison discipline has its limits! Plaintiff Davis was accused of extortion and fighting, and the hearing officer found him guilty, but Davis actually won his administrative appeal because of procedural defects in the hearing process. He sued in federal court under the due process clause because he was given solitary confinement for 55 days under questionable conditions.

The Second Circuit (Parker, Wesley and Cederbaum) reverses the district court, which granted summary judgment on Davis's claim. The district court erred in failing to examine the actual circumstances of Davis's confinement and to identify with specificity the facts upon which its ruling was based. In other words, the district court was too deferential to prison authority in ruling that Davis was not subjected to unusual punishment.

While the district court thought the confinement was not atypical or onerous, it failed to presume the truthfulness of Davis's account of life in solitary confinement, instead assuming that his confinement was consistent with the generally mandated confinement at the jail. In particular, Davis testified that, contrary to usual practice at the jail, he was kept in his cell 24 hours a day, denied any participation in the cell study program and denied commissary privileges. He also testified that he was subject to unhygienic conditions in that his food was kept on the floor for lack of any furniture, his mattress was infected with body waste and "his cell was subject to 'daily' flooding, and feces and urine thrown by other inmates." Fact disputes surrounding what Davis was subjected to in solitary confinement made summary judgment inappropriate. The case is remanded to the district court to conduct further fact-finding on the actual conditions of Davis's confinement in comparison to ordinary prison conditions.

Habeas petition denied for depraved-indifference killer

Something interesting happened in the New York State Court of Appeals a few years ago. The State's highest court interpreted homicide law in a new way. It ruled that you cannot be convicted of depraved indifference murder if the evidence demonstrates the defendant's intent to kill the victim.

This may sound unremarkable to those who did not go to law school, but for those of us who did, we all remember criminal law seminars where the teacher gave us the classic example of depraved indifference murder: someone throwing a brick from a building into a crowd of people. The brick-thrower did not intend to kill, but his actions established beyond doubt his depraved indifference to human life in that he reasonably expected the brick would hit and kill someone.

Now, there are other ways to murder someone besides depraved indifference to human life. You can take action intending to kill someone, i.e., pointing a gun at someone and pulling the trigger. Up until a few years ago, in some cases, a defendant could be convicted of depraved indifference murder even where the evidence suggested that he may have intended to kill his victim. The New York Court of Appeals smoothed over that anomaly in the law a few years ago, holding in People v. Gonzalez, 1 N.Y.3d 464 (2004), that a conviction for depraved indifference murder is invalid if the defendant intended to kill. This does not mean that killers go free. It means that the prosecutor has to charge the brick-thrower with depraved indifference murder, and if the evidence suggests the defendant did intend to kill, the jury cannot find him guilty of depraved indifference murder.

The depraved-indifference and intent-to-kill distinction in New York homicide law came before the United States Court of Appeals in a habeas corpus petition filed to overturn an inmate's conviction in a homicide case. The case is Henry v. Ricks, decided on August 10. Henry was convicted in 1997 of depraved indifference murder, but he was acquitted of intentional murder. Off to jail Henry goes. But the Gonzalez case -- decided by the New York Court of Appeals -- gave him an argument in favor of overturning the conviction in federal court, because the evidence only supported one inference: that he intended to kill his victim (even if the jury acquitted him of that charge).

As the Second Circuit summarizes the criminal case, Henry shot a guy in an apartment and then placed the victim's body in the trunk of a car and buried the body in a snow bank. Although the decision is not clear on this point, it seems obvious that Henry argued in support of his habeas petition that he was acquitted of intentional murder under facts that can only support a finding of intent-to-kill. This means that his conviction for depraved-indifference murder violates the Constitution because the evidence technically did not support the depraved-indifference charge.

This is not a bad argument. Henry is simply taking advantage of a change in New York homicide law in arguing that his conviction is now invalid. As the Second Circuit notes, however, Henry "forthrightly" concedes "that his position is 'disturbing'" in that he is not actually claiming his innocence or a lack of intent to kill the victim. In fact, "he contends that the evidence adduced at his trial amply demonstrated his intent to would the victim mortally" and that "in light of the evidence of intent, the evidence was not sufficient to convict him of depraved indifference murder under the new pronouncement of the law by the New York Court of Appeals."

While this argument technically has a basis in law, Henry loses the habeas petition. The Second Circuit finds that the Gonzalez decision from the State Court of Appeals is not retroactive. As much as Gonzalez helps Henry's legal position on the habeas petition, since the State's highest court did not simply clarify the law in that case, it does not have retroactive effect. We know this because the New York Court of Appeals said so in Policano v. Herbert, 7 N.Y.3d 588 (2006). In short, the Gonzalez decision does not help Henry, and the Second Circuit observes that it has no authority "to thrust upon state courts a different conception either of the binding force of precedent or of the meaning of judicial process."

Lousy reasonable doubt jury charge is no basis for habeas relief

One thing civil court judges always have to tell the jury is that the civil case does not carry a reasonable doubt standard. That standard is for criminal court cases, "and you should put it out of your mind," the judge tells the jury. This case involves the opposite.

The case is Brown v. Greene, decided August 11. At Brown's criminal trial in state court, the judge told the jury that "A jury makes factual findings. 50.1 to 49.9, factual findings can be made although they are not established beyond a reasonable doubt. The elements must be established beyond a reasonable doubt if they're going to be established at all."

Later on during the charge, the court told the jury that "for centuries elections have been closely decided. 50.1 beats 49.9 every time ... And yet, for 230 years now, juries, the same pool of people who can't agree on a candidate, have been unanimously deciding cases." The court went onto explain that juries reach unanimous verdicts through reason and persuasion. Where are the pattern jury instructions when you need them?

Now, jury instructions being jury instructions, the court repeatedly told the jury that the prosecution has to prove its case beyond a reasonable doubt. But what about this 50.1 to 49.9 language? That sounds like a civil jury instruction, where the plaintiff wins by a preponderance of the evidence, where the jury is told that plaintiff wins if his version of events is more likely true than the defendant's version of events. In other words, plaintiff wins if the scales tip slightly in his favor.

The reasonable doubt standard is paramount in criminal law, and the Constitution requires it. Brown's attorney did not object to the 50.1 to 49.9 language. This omission forms the basis for Brown's habeas petition on the ground that his lawyer provided him ineffective assistance of counsel. Brown loses. Over a lengthy dissent by Judge Straub, the Second Circuit (Feinberg and Raggi) cites case law holding the prosecution does not always have to prove certain facts beyond a reasonable doubt, but that this kind of jury charge may be confusing since 50.1 to 49.9 sounds like preponderance language. But cases also hold that jury instructions like this do not deprive the defendant of a fair trial if the instructions as a whole make it clear that the jury has to follow the reasonable doubt standard. Brown's case is even harder to win since this issue comes before the Court of Appeals in the context of a habeas petition, where he cannot win unless the state criminal court unreasonably applied clearly established law.

Brown loses, but the Court of Appeals takes a moment to remind criminal judges to use the pattern jury instructions when applicable, noting that "improvised definitions of the beyond a reasonable doubt standard may be confusing or misleading. We urge trial courts, in the future, to stick to the model jury instructions regarding this issue."

Continuing violations rule applies to deliberate indifference claims

All civil rights claims carry a statute of limitations, some of them long, some of them short. That limit can be extended under the "continuing violations" rule, which allows the plaintiff to reach beyond the statute of limitations if the defendant was pursuing an ongoing policy and something illegal happened within the appropriate time frame. The Second Circuit now holds that the continuing violations rule applies to medical indifference claims filed by inmates against public officers.

The case is Shomo v. City of New York, decided on August 13. In 2002, the Supreme Court recognized that the continuing violations rule is applicable to sexual harassment claims involving a hostile work environment. That case isd AMTRAK v. Morgan, 506 U.S. 101 (2002). The Supreme Court did this because hostile work environment claims necessary involve allegations that extend beyond the 300-day time limit to bring an action. The Second Circuit saw this coming, and in 1994 ruled that, in Section 1983 claims against the government, "the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Cornwell v. Robinson, 23 F.3d 694 (2d Cir. 1994).

Does the continuing violations rule apply in cases alleging deliberate indifference to serious medical needs? Inmates often file these claims under the Eighth Amendment to the Constitution, so this is an important question. In Shomo, the Second Circuit (Pooler and Jacobs) rules that continuing violations do apply in these cases, following the lead of the Seventh Circuit, which ruled similarly in Heard v. Sheahan, 253 F.3d 317 (7th Cir. 2001). As the Second Circuit frames the inquiry, "To assert a continuing violation for statute of limitations purposes, the plaintiff must 'allege both the existence of an ongoing policy of [deliberate indifference to his or her serious medical needs] and some non-time-barred acts taken in the furtherance of that policy.' This test screens out Eighth Amendment claims that challenge discrete acts of unconstitutional conduct or that fail to allege acts within the relevant statutory period that are traceable to a policy of deliberate indifference."

Shomo alleges a pattern where, despite prior treatment recommendations, prison medical personnel and security staff refused to assist him with "activities of daily living" for his right arm paralysis and limited use of his left arm; refused to transfer him to specialized infirmary housing or to provide him recommended treatments. The Court of Appeals is giving Shomo another chance to amend his complaint to comply with the new continuing violations test outlined in this opinion.

In an interesting concurrence, Chief Judge Jacobs agrees that the continuing violations rule should apply to deliberate indifference claims filed by inmates. He also says the court's "indulgent" rules allow pro se litigants to replead their claims and that "Shomo's claims would be deemed frivolous and suitable for dismissal under any standard but the one we apply to pro se litigants." Further noting that Shomo wants treatment for "activities of daily living," Judge Jacobs observes that "Shomo was convicted by a jury of murder in the second degree -- through use of a firearm--and criminal possession of a weapon. Shomo’s inability to use his hands was floated to the jury as a defense, and rejected. While I am not suggesting that murder by firearm is an 'activity of daily living,' I would draw the inference that a person able to shoot someone to death has sufficient use of his hands to get by."

New York Times cannot get its hands on the Spitzer wiretap application

The New York Times wants the sealed wiretap applications relating to the investigation into the prostitution ring formerly patronized by Gov. Eliot Spitzer. The Times can't have them, the Court of Appeals has ruled.


The case is In the Matter of the Application of the New York Times Company to Unseal Wiretap & Search Warrant Materials, decided on August 7. Spitzer resigned his office a few days after the Times reported that he was a client of the Emperor's Club. All of this made for great copy, as they say in the newspaper business. But a sex scandal is the gift that keeps on giving. The story is not over. Since you need a court order to wiretap phone conversations, the follow-up story is: what do the wiretap applications say?


Since cellphone wiretaps in connection with the prostitution ring must tell quite a story, the Times wanted to see the government's wiretap and search warrant applications. Judge Rakoff ruled in the newspaper's favor, but the Court of Appeals (Cabranes, Hall and Winter) reverses. This case pits the First Amendment against a 1968 law which governs the disclosure of wiretap applications and related documents under a "good cause" standard.


Congress in 1968 enacted the Omnibus Crime Control and Safe Streets Act, which says that wiretap applications are sealed by court order, but that they can be disclosed for "good cause." This case concerns the meaning of "good cause." The Supreme Court has never interpreted the "good cause" standard, but the Court of Appeals did, in 1984, ruling that good cause exists when the person trying to review the materials was an "aggrieved person," i.e., he has to show that he was "a party to any intercepted wire or oral communication or a person against whom the interception was directed." In other words, if you were wiretapped, you are an "aggrieved person."


The 1968 law -- also known as Title III -- creates a strong presumption against public disclosure of the wiretap applications. This is because the Supreme Court in 1967 (United States v. Katz, 389 U.S. 347) emphasized privacy rights in this context. What this means for the New York Times is that it cannot show good cause for the records. The Second Circuit reasons, "It is irrelevant for the purposes of Title III that the Times is a newspaper investigating a matter of public importance. ... the Times does not suggest, much less show, that it is an 'aggrieved person' within the express terms of the statute -- that is, ... the Times does not claim to be 'a party to any intercepted wire or oral communication or a person against whom the interception was directed.'"


What about the First Amendment right of access to wiretap applications? Is there any such right? The Court of Appeals takes up this issue also. The Times argues that these materials are comparable to documents in civil cases which are subject to the public's constitutional right to inspect judicial records. The newspaper also argues that wiretap applications "are merely judicial records that, like search warrants or docket sheets, have been historically open to public access." It also argues that it needs to monitor the government's intrusions on personal privacy and the judicial role "in acquiescing to the government's requests."


These are not bad arguments. Hey, the public has a right to know what really happened with these wiretaps which led to the resignation of a governor with a bright political future, right? Wrong. While the public has the right to gain access to judicial records that have historically been open to the press and general public, wiretap applications are a creation of the 1968 wiretapping law, and so therefore there is no historic right of access to them. The Court adds, "the Times does not present a good reason why its preferred public policy -- monitoring the government's use of wiretaps and potential prosecutions of public officials -- is more compelling than Congress's apparent concern for confidentiality and privacy, which are reflected in the text of Title III and its legislative history."

SDNY infers retaliatory intent despite 11-month time lag

In February 2009, the Second Circuit held that inmates can show a connection between their constitutionally-protected activity and the adverse action even if many months separated the two events, provided that that evidence suggests jail officials had a reason to wait to exact their retribution. This was a significant ruling because many retaliation cases -- particularly in the employment context -- are dismissed between too much time elapsed between the employee's protected activity (such as a complaint about workplace discrimination) and his alleged retribution (such as his termination or demotion).


Although I do not believe the Second Circuit has applied this reasoning in a published employment case, this reasoning is not foreign to employment cases in the district court, though it only turns up once in a blue moon. It happened on August 5. In a district court ruling handed down that day, the Southern District of New York allowed a public employee's retaliation case to proceed even though his forced resignation in August 2006 took place nearly a year after he refused to post a Town councilman's campaign sign on his lawn. The case is Cronin v. St. Lawrence, 2009 WL 2391861 (SDNY Aug. 5, 2009)


How many employment cases have we seen where an 11-month gap is not enough to win a retaliation case? Without direct evidence of retaliatory intent, a short gap between the protected activity and the adverse decision may be enough, but at some point the two events are too far apart and courts will not allow juries to infer retaliatory intent simply because the termination followed the protected activity.


But in this case, the trial court denies the motion to dismiss. As Judge Karas notes, "there is no bright line for temporal proximity, and the time lag at issue here is at least in the range of acceptable time periods, particularly if defendant had no earlier opportunity to retaliate against plaintiff for engaging in protected activity." Among other cases, the district court cites for this proposition Bernhardt v. Interbank of N.Y., 18 F. Supp. 2d 218 (EDNY 2008), which holds that causation was possible despite an 11-month lapse between the protected activity and firing because defendant had possible reasons for delaying the adverse action.


However, since this is a Rule 12 motion to dismiss the complaint without the benefit of discovery, Judge Karas drops a footnote suggesting this holding may not apply on a motion for summary judgment, after the parties have had an opportunity to exchange documents and take depositions. The court states, "This does not mean, obviously, that the same result awaits plaintiff at summary judgment. For example, if defendant can establish that he had earlier opportunities, were he so inclined, to retaliate against plaintiff, but did not, the temporal gap may be too large to reasonably infer wrongful conduct by defendant."

SDNY lawyer gets EDNY rates in disability discrimination case

When the plaintiff in a civil rights case wins the case, her attorney is able to recover attorneys' fees. This means the loser pays not only the victorious plaintiff, but her attorney. The jury decides what the plaintiff gets, but the judge decides the attorneys' fees issue. An attorneys' fees award depends on many things, including how much time the lawyer spent on the case and her hourly rate. You may think the hourly rate is not a disputed issue, but it is.

The case is Simmons v. New York City Transit Authority, decided on August 3. Simmons won her disability discrimination claim in the Eastern District of New York. Her attorney's office is located in Southern District of New York. For the uninitiated, EDNY includes Brooklyn, Queens and Long Island. SDNY includes Manhattan, The Bronx, Westchester and a few counties north of the Tappan Zee Bridge. The case law governing this issue confirms that, in the eyes of the court, SDNY rates are much higher than EDNY rates, even though EDNY includes downtown Brooklyn, and SDNY includes semi-rural counties like Orange and Dutchess. Since SDNY rates are based on Manhattan rates (for the most part), the anomaly is that a civil rights lawyer in Orange County with less experience may have a higher rate than a more experienced lawyer in Brooklyn whose office is located one or two subway stops from the more lucrative jurisdiction, Manhattan.

So what do you do when the case is litigated in EDNY but the lawyer's office is located in SDNY? Do Southern District rates apply, or do Eastern District rates apply? In Simmons, the Court of Appeals noted its recent decision in Arbor Hill v. Concerned Citizens v. County of Albany, 522 F.3d 182 (2d Cir. 2008), which says that the hourly rate is based on the rates of the judicial district in which the case was filed, not where the attorney has her offices, unless the attorney can show that this is one of the unusual cases where the plaintiff's use of an out-of-district attorney was reasonable under the circumstances. Simmons resolves the issue of how to determine the hourly rate.

In Arbor Hill, the plaintiff's lawyers were located in New York City, but the case was litigated in Albany, in the Northern District of New York, which provides for much lower hourly rates than SDNY. But in Simmons, the case was tried in Brooklyn, and the lawyer's office is in Manhattan. Which jurisdictional rate applies?

In Simmons, the Second Circuit (Walker, Jacobs and Leval) answers that question. They find that Simmons can hire any lawyer she wants, but the lawyer's fee is presumed to be governed by the jurisdiction where the case is litigated, not the location of the lawyer's office. The lawyer can get the higher rate if he is situated in a more lucrative jurisdiction, but under this ruling, that's a hard burden to satisfy. The Court of Appeals holds that "in order to receive an attorney's fee award based on higher out-of-district rates, a litigant must overcome a presumption in favor of the forum rule, by persuasively establishing that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result."

In other words, the plaintiff has to show that she chose a Manhattan lawyer to litigate a case in Brooklyn because the Manhattan lawyer would likely have produced a much better result than a lawyer in Brooklyn (or Long Island, also part of EDNY). I'm not sure how this burden can be satisfied in most civil rights cases, especially since the Southern and Eastern Districts of New York each have good civil rights lawyers capable of winning their cases. In an effort to garner a higher attorneys' fee rate, an out-of-district lawyer may have to argue that she is the cream of the crop and much better than her colleagues who handle similar work. That is not as easy as it sounds, as the lawyer may have to toot her own horn at the expense of her colleagues in the civil rights bar.

In any event, the Second Circuit holds that "a litigant cannot overcome the presumption through mere proximity of the districts, nor can a litigant overcome the presumption by relying on the prestige or 'brand name' of her selected counsel." The court adds, "The Transit Authority should not be required to pay for a limousine when a sedan could have done the job." Under this high burden, the Court of Appeals finds that the attorney's fees award in this case is too high and that Simmons' lawyer deserved fees under the lower EDNY rates, not the SDNY rates. The fees are reduced by $45,000.

Qualified immunity dooms esoteric due process claim

Plaintiff's lover in a volatile relationship went to his home when he wasn't there, but she got scared when an unidentified caller rang the telephone. So she called the police. They accompanied her into plaintiff's private study to see if her stuff was there, and they came upon drugs and related paraphernalia. Plaintiff was arrested even though the girlfriend told the police that she wasn't even allowed in his study and had actually cut the locks herself.

The case is Moore v. County of Delaware, decided June 27. While they are set forth in the opinion, the above facts are not really part of this appeal. They were part of an appeal in the same case decided two years ago, when the Second Circuit held that the officers were entitled to immunity on Moore's false arrest claim. Moore v. Andreno, 505 F.3d 203 (2d Cir. 2007). This appeal concerns another claim from the same lawsuit which somehow fell through the cracks.

In addition to claiming false arrest, Moore sued on a due process violation. The argument is that when the police seized his property on this warrantless search, they did not provide him any pre-deprivation notice as required under the Due Process Clause. The district court denied the officers' motion for summary judgment. The Court of Appeals reverses in a summary order, dismissing the case.

Relying on a Supreme Court case, City of West Covina v. Perkins, 525 U.S. 234 (1999), the district court ruled in Moore's favor because "defendants were obligated to take reasonable steps to give notice that the property had been taken so defendant could pursue available remedies for its return."

The Court of Appeals disagrees. Under qualified immunity, if the law is not clearly established at the time of the alleged violation, the government defendants get the benefit of the doubt. This means that truly esoteric damages claims will not be heard by a jury, as police officers are not expected to know future developments in the law. Moore's legal theory in this case was not clearly established when the police seized his property. "There is no authority recognizing the particularized right ostensibly violated here -- i.e., the right to notice, at the time of a warrantless search, of that search and the items seized." As for the district court's reliance on that Supreme Court case from 1999, that language is most likely dicta (not necessary to the Supreme Court's holding) and does not cover the precise circumstances raised by this case.

Another wrinkle on the right to remain silent

I wonder if the Supreme Court justices who issued their landmark rulings on the right to counsel in the 1960's knew that 40 years later the courts would still be untangling the meaning of the Sixth Amendment (and the Fifth Amendment). The Second Circuit has issued another ruling that places a wrinkle on the right to remain silent after a criminal suspect asks for a lawyer.

The case is United States v. Plugh, decided on July 31. Plugh was being questioned about his alleged child pornography. The agents had found child pornography on his computer hard drive. When they handcuffed Plugh, he was read his rights under the Fifth Amendment ("you have the right to remain silent, etc.") and they asked him to sign an "advice-of-rights" form which would have waived his right to an attorney and allowed the agents to ask him more questions.

Plugh responded, “I am not sure if I should be talking to you,” and “I don’t know if I need a lawyer.” Plugh did not sign the waiver form and stated that he did not want to sign anything at that time. As the agents drove Plugh to FBI offices in Rochester, N.Y., they told him he was about to be arrested on child pornography charges. Plugh asked what he should do. They told him that if he cooperated they would let the U.S. Attorney's office know about it. At the FBI offices, the agents placed Plugh in a booking room and told him that “[i]f he wanted to make any statements this was the" time to do so. Plugh said he would talk and the agents read him his Miranda rights. Plugh did not again ask for a lawyer. He began talking and incriminated himself. The district court suppressed Plugh's statements, and the Court of Appeals affirms.

Here are the issues: "whether Plugh retained his right to remain silent and his right to counsel by refusing to sign the advice-of-rights form when asked by Agent McArdle to sign the form if he agreed with its contents, notwithstanding his statements immediately prior that he was not certain he wanted to talk to a lawyer or that he should talk to the interrogating agents." The Court of Appeals (Wesley and Hall with Jacobs dissenting) rules in Plugh's favor.

It seems there are cases interpreting in nearly every context the Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel. This is because all kinds of things happen right before a suspect begins to talk. While Plugh's suggestion that he might need a lawyer was equivocal and did not prevent the agents from speaking to him further, it was his refusal to sign the waiver that confirmed that he was clearly invoking his rights under the Sixth Amendment and that the agents had no right to continue asking him questions. If the suspect is not clearly invoking the right to counsel, the police may ask follow-up questions. Without the waiver form, the police did not break the rules. But once Plugh decided not to formally waive his rights, the police went to far in continuing to speak with him.

As the Second Circuit puts it, "While Plugh’s statements, 'I am not sure if I should be talking to you' and 'I don’t know if I need a lawyer,' appear ambiguous, Plugh’s ultimate action – his refusal to sign – constituted an unequivocally negative answer to the question posed together by the waiver form and McArdle, namely, whether he was willing to waive his rights." This is especially so because the agent told Plugh, “[i]f you agree with the statement you can sign the form.”

Chief Judge Jacobs dissents. He writes that there was nothing unequivocal about Plugh's actions. "All of the circumstances here--Plugh’s oral statements as well as his refusal to sign a waiver--bespeak indecision and ambiguity." Citing Fifth Circuit authority, he goes on to reason, "'[a] refusal to sign a waiver may indicate nothing more than a reluctance to put pen to paper under the circumstances of custody.' If a suspect’s refusal to sign a written waiver can be enough to bar police from asking any further questions, regardless of whether the suspect is willing to talk to police, then police will simply stop using written waiver forms. Why take the risk that a suspect won’t want to put pen to paper? The result will be a return to the very confusion and uncertainty regarding a suspect’s invocation of rights that written waivers were designed to overcome."