Constitutional challenge to N.Y. riot law fails

One way to challenge your criminal conviction is to argue that the law under which you were prosecuted is too vague and that you were not on notice that your actions fell under its provisions. The Second Circuit has rejected that challenge in the context of the New York statute prohibiting riot in the first degree.

The case is Ortiz v. N.Y.S. Parole, decided on November 10. Ortiz was convicted of riot in the first degree in connection with a riot outside Central Park which broke out after the Puerto Rican Day Parade in 2000. The decision outlines some disgusting assaults against women by various rioters. As the Second Circuit (Kearse, Livingston and Sack) sets out in the opinion, Ortiz was present when the riot started, but he claimed he left the scene before some of the riotous behavior continued. He was charged under the riot law for these acts, and the criminal court judge said that "once one joins a riot, [a] person remains criminally liable for the conduct set in motion until he makes substantial effort to end the conduct." In other words, with limited exceptions, if you help start the riot, you are responsible for whatever happens afterward by anyone else who participated in the riot. The jury charge stems from the statute, which reads:

A person is guilty of riot in the first degree when (a) simultaneously with ten or more other persons he engages in tumultouous [sic] and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of causing public alarm, and b) in the course of and as a result of such conduct, a person other than one of the participants suffers physical injury or substantial property damage occurs.

The argument here is that, in violation of the U.S. Constitution, the statute does not clearly set out that you are responsible for the consequences of the riot that you helped to create. In ruling against Ortiz on his initial appeal, the state appellate court said that "the riot statute permits a riot participant to be held criminally liable for the acts of other participants, in the course of the same continuing riot, even after his or her participation may have terminated."

As federal courts defer to the state courts' interpretation of its criminal statutes, Ortiz loses his habeas corpus challenge. The fact that this was the first time an appellate court in New York interpreted the riot law this way does not mean that the state judges unreasonably applied constitutional principles in ruling against him. It is true that the Supreme Court has said that "due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope." But, under Second Circuit caselaw, it is also true that "due process is not ... violated simply because the issue is a matter of first impression." Here, since the state appellate courts' interpretation of the riot law "was not so unexpected and indefensible as to deprive Ortiz of fair notice," the adverse ruling was not unreasonable and therefore does not support his habeas petition. The conviction stands.

EEOC wins battle over UPS discrimination records

The Equal Employment Opportunity Commission wanted records from United Parcel Service to determine whether UPS was violating the religious rights of employees. UPS said no. The district court said no. The Court of Appeals says yes. EEOC gets the records.

The case is EEOC v. United Parcel Service, decided on November 19. EEOC is charged with investigating employment discrimination claims. Two UPS employees (one in Buffalo, the other in Texas) claimed the company would not allow them to wear beards as required by their religious observances, despite the company's policy to grant exemptions from the no-beards policy.

This is what the EEOC's subpoena demanded from UPS:

(1) all documents related to the Appearance Guidelines and a list of all jobs which are subject to the Guidelines; (2) identifying information for all job applicants denied employment because of their refusal to adhere to the Appearance Guidelines since January 1, 2004; (3) identifying information for all employees who requested a religious accommodation to the Appearance Guidelines and the outcomes of those requests since January 1, 2004; and (4) identifying information for all employees who were terminated for reasons relating to the Appearance Guidelines since January 1, 2004.

The district court found that the subpoena was overly broad and sought national information not relevant to the individual charges. The Court of Appeals (Newman, Katzmann and Trager, D.J.) reverses.

Under Second Circuit case law, trial courts have a limited role in enforcing administrative subpoenas like this. "To obtain enforcement of an administrative subpoena, '[a]n agency must show only [1] that the investigation will be conducted pursuant to a legitimate purpose, [2] that the inquiry may be relevant to the purpose, [3] that the information sought is not already within [the agency’s] possession, and [4] that the administrative steps required ... have been followed.'" The Court adds, "A subpoena that satisfies these criteria will be enforced unless the party opposing enforcement demonstrates that the subpoena is unreasonable or that compliance would be 'unnecessarily burdensome.'” Also, the company cannot reject the subpoena on the ground that it believes the discrimination claims are meritless.

The information requested here is relevant to EEOC's investigation, and the district court applied too restrictive a legal standard in sustaining UPS's objection. Not only did the company's physical appearance policy apply to UPS offices around the country, but company policy promises to evenly apply the religious exemption. Yet, the two complainants here were not given the chance to secure an exemption, and one of them was told there was no exemption policy. He also alleged in his EEOC complaint that UPS had a pattern and practice of failing to accommodate employees who wanted the religious exemption. Without too many citations from Supreme Court and Second Circuit authority, the Court of Appeals upholds the subpoena and in effect awards EEOC the requested documents.

Court-approved settlement in prisoners' rights case entitles plaintiffs to attorneys' fees

Under the civil rights laws, the winner recovers attorneys' fees from the losing party. As with everything else in law, the prevailing party inquiry is complicated. An outright victory at trial or court order means the plaintiff is entitled to attorneys' fees. If the case settles, it's a closer question.

The case is Perez v. Westchester County Department of Corrections, decided on November 19. The Muslim plaintiffs sued their jailers for religious discrimination over the refusal to serve them Halal meat consistent with their religious practices. Prior to trial, the County agreed to provide the food as frequently as it provided Jewish inmates kosher food, ending the case.

Ten years ago, this was a more straightforward question. Most federal courts recognized the plaintiff was a prevailing party under the attorneys fees statute if the defendant gave in and provided plaintiff the relief requested rather than fight the case. This was the "catalyst" theory. But in 2001, the Supreme Court rejected the catalyst theory and held in Buckhannon v. West Virginia that the plaintiff needs a judgment or some kind of judicially-approved settlement. The Second Circuit has interpreted Buckhannon to mean that "judicial action other than a judgment on the merits or a consent decree can support an award of attorneys' fees, so long as such action carries with it sufficient judicial imprimatur."

In this case, when the County agreed to settle (at the district court's urging), the parties did not enter into a consent decree, which would have entitled plaintiffs to attorneys' fees under Buckhannon. However, the dismissal of the lawsuits only took effect "upon the Court's approval and entry of this Stipulation and Order." The district court amended the agreement to designate it an "order of" settlement, and also noted that the court had discretion to accept any case brought by plaintiffs to enforce the settlement in case the County failed to live up to the settlement. The court also "so ordered" the settlement and then awarded plaintiffs' lawyers nearly $100,000 in attorney fees as the prevailing party in this civil rights lawsuit.

The Court of Appeals (Calabresi, Livingston and Korman, D.J.) upholds the fee award under Buckhannon. Challenging the award, the County said the plaintiffs were not prevailing parties and that the settlement was the kind of voluntary change in behavior which disentitles the plaintiffs to any fees under Buckhannon. The Second Circuit disagrees. As a result of the settlement, the County has changed its behavior in providing the religious food. The settlement also has a "sufficient judicial imprimatur" because the trial court retained authority to enforce the settlement. The Second Circuit holds for the first time that an order of dismissal that explicitly incorporates the terms of a settlement entitles the plaintiff to attorneys' fees. This is particularly the case because the district court intended to place its judicial imprimatur on the settlement as shown by its active involvement in sanctioning the settlement. Not only did the district court retain authority to enforce the agreement, but it reviewed and approved the agreement. Plaintiffs satisfy the difficult Buckhannon standard.

Gitmo lawyer can't sue on behalf of hypothetical future clients

A lawyer by the name of Fenstermaker brought a lawsuit on behalf of detainees at Guantanamo Bay. Fenstermaker is not detained there, but his clients are. He alleged violations of their right to counsel and the speedy trial rules. The Court of Appeals says he can't do this.

The case is Fenstermaker v. Obama, a summary order decided on November 3. A lawyer can sue on his client's behalf if, among other things, he has a "close relation" to clients who are hindered from pursuing their own interests. There is no "close relation," however, because Supreme Court precedent holds that lawyers cannot premise third-party standing on hypothetical future clients. Kowalski v. Tesmer, 543 U.S. 125 (2004). Another reason why Fenstermaker cannot sue on his clients' behalf is that their interests may not be in alignment. Fenstermaker alleges the government has violated the speedy trial rules, "but detainees [who are facing trial for war crimes] may well have an interest in avoiding prosecution or challenging their detention through other legal avenues.

Fenstermaker did bring a claim on his own behalf: he alleged that the government violated his First Amendment right to disseminate information to detainees about his legal practice. The Court of Appeals disagrees. There is a kernel of a First Amendment claim here because "litigation is a form of political expression protected by the First Amendment." Attorney advertising is also free speech. But "defendant's inability to deliver Fenstermaker's statement of practice to unknown detainees not yet subject to military commission charges does not violate the First Amendment." He could have sent information about his practice to detainees at an address made available by the Defense Department, and since he has no right to send out this information in the manner of his choosing, there is no First Amendment violation.

No "new" parades on Fifth Avenue does not violate First Amendment

So you want to have a parade along Fifth Avenue, the crown jewel of parade routes in New York City? You probably can't do it, unless you were grandfathered in when New York City banned any "new" parades in 2001. Is this legal under the First Amendment? Yes.

The case is International Action Center v. City of New York, decided on November 17. In 2001, the City decided that Fifth Avenue parades put too much of a strain on traffic, street closures and other problems. The 2001 law says that "permits will be disapproved ... if the application seeks to hold a parade on Fifth Avenue ..., unless the parade was held at that location prior to the promulgation of these rules." So when International Action Center wanted to protest the Iraq War in 2005, it was denied the permit for Fifth Avenue and directed to another part of the City.

Prior restraint and public forum law under the First Amendment is counter-intuitive. That which makes sense to those unfamiliar with the complicated case law in this area is actually illegal. One line of cases holds that you cannot be sent to a different public forum if the one you want is available; you can still broadcast your message, but the re-direction violates the First Amendment because you are denied access to a public forum. On the other hand, if you are familiar with public forum caselaw, the Fifth Avenue Rule may seem unconstitutional. After all, new organizations who want to host a parade based on current events (such as the Iraq War) are shut out.

As the Court of Appeals (Chin, D.J., and Parker) sees it, this rule is content-neutral and thus constitutional. Plaintiff argues that the Fifth Avenue Rule "discriminates against public discussion on the topic of current events." Not so, says Judge Chin. "The Fifth Avenue Rule does not seek to regulate messages or distinguish between different types of speech. The Fifth Avenue Rule applies to all 'new' parades, irrespective of their content. There is nothing in the record to suggest that the City has banned new parades on Fifth Avenue because it is seeking to restrict speech relating to current events. Although the Fifth Avenue Rule may indeed have 'an incidental effect on some speakers or messages but not others,' that is true of many content-neutral regulations. Such an incidental effect does not convert a content-neutral regulation into a content-based on." Ward v. Rock Against Racism, 491 U.S. 781 (1989) supports this holding. The point is that whatever the message, either anti-war or in favor of a newly-created nation, the permit will be denied for Fifth Avenue because it is a "new" parade, not because of the particular message the parade organizers want to promote.

An interesting angle comes halfway through the opinion, where the Court of Appeals addresses the argument that the Fifth Avenue Rule has been inconsistenly applied and therefore does not promote the significant government interest of managing congestion. In 2004, after the City lost a preliminary injunction allowing Critical Mass to hold a bicycle rally, it allowed the event to take place on Fifth Avenue. Then, in 2006, after the highly-publicized Sean Bell shooting, in the interests of encouraging a peaceful march in the wake of Al Sharpton's threats to have tens of thousands of protesters on Fifth Avenue with or without a permit, the City allowed the march to proceed down Fifth Avenue. The Second Circuit deems these departures too "unique" to support plaintiff's claim that the Fifth Avenue Rule has been inconsistently applied.

Convict cleared by DNA testing cannot sue DA's office

One of the biggest advances in forensics over the last few decades is DNA testing for criminal convicts found to be innocent of their crimes and set free. One of the rock-solid principles of civil rights law is that you cannot sue the prosecutor in connection with his advocacy against you as a criminal defendant. These concepts intersected in Douglas Warney's case before the Second Circuit.

The case is Warney v. Monroe County, decided on November 13. As the Court of Appeals opens up the narrative, "Douglas Warney was wrongfully convicted and jailed for ten years." His story sounds like something out of John Grisham's non-fiction book, An Innocent Man. Warney has a 68 IQ and an eighth-grade education. A fellow in Rochester, William Beason, was fatally stabbed in his own apartment after a violent struggle, and there was blood evidence all over the place as well as fingerprints. After Warney called the police to say that he "knew of" Beasley, the police questioned Warney, who confessed to the crime after an abusive interrogation. The confession contained inconsistencies which should have signaled to the police that Warney probably didn't do it. At trial, experts said that the blood on the murder weapon and other blood evidence as well as a mystery fingerprint did not match Warney's. The jury convicted Warney anyway.

Post-trial, the district attorney's office would not allow Warney's lawyer access to the evidence he needed to conduct DNA testing. Meanwhile, while the case was still winding through the courts on appeal, the DA's office did test the blood and found that the DNA was not Warney's. As he sat around in jail, the DA waited 72 days to tell Warney's lawyer that Warney was exonerated. Later on, someone else confessed to the murder, and the court vacated Warney's conviction.

This all makes Warney's case against the district attorney a sympathetic one. But Warney cannot win his civil rights case alleging the unlawful failure to promptly disclose exculpatory evidence, the Second Circuit (Jacobs, Newman and Pooler) holds. Under a 1976 Supreme Court decision, you can't sue prosecutors for any acts taken in the course of their official duties as advocates. Otherwise, every other convict would sue the DA who brought the charges. There is no immunity for prosecutors, however, for acts taken in the course of their administrative duties or investigatory functions unrelated to the DA's preparation for judicial proceedings. This is a fine line.

Warney loses this civil case. Once the conviction is final, the prosecutor still works on the case, defending against appeals and habeas corpus challenges in federal court and pursuing parole violations. Having said that, federal courts are all over the place on this precise issue. Addressing this issue for the first time, the Second Circuit holds that there is "no principled reason to withhold absolute immunity for work performed in defending a conviction from collateral attack," i.e, on appeal and in other contexts. Warner cannot win his case because the DNA exoneration happened while his case was still in the "judicial phase." The prosecutors were still functioning as advocates in the context of Warner's post-conviction challenges. That the DA's office withheld the DNA results for 72 days does not change the analysis. The Court of Appeals sums up as follows:

[T]he steps taken here--testing, disclosure, and even the delay in making disclosure, as well as the identification of the real killer–-were integral to and subsumed in the advocacy functions being performed in connection with Warney’s post-conviction initiatives. The decisions made by the prosecutors in this case--whether to test for potentially inculpatory (or exculpatory) information, how and when to disclose or use that information, and whether to seek to vacate Warney’s conviction--were exercises of legal judgment made in the “judicial phase” of proceedings integral to the criminal justice process.

Trial court needs to give qualified immunity analysis deeper thought

Qualified immunity lets individual government defendants off the hook if they acted reasonably under the circumstances or their behavior did not violate clearly-established law. This analysis normally looks carefully at the defendant's actions to see if he can win the case without a trial. But, sometimes, it's the actions of the trial court which require greater scrutiny.

The case is Distiso v. Town of Wolcott, a summary order decided on November 5. The parent brought this racial discrimination lawsuit, alleging that her African-American son suffered racial harassment by classmates and discrimination by his teachers and the principal, who did not respond properly to the allegations.

These cases are usually brought under Title VI of the Civil Rights Act, which does not allow for a qualified immunity defense. This case, however, was filed under the Equal Protection Clause of the Constitution, enforced under 42 U.S.C. section 1983, which does carry a qualified immunity defense. In equal protection claims, the court has to apply Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir. 1999), the only time the Second Circuit has addressed this issue in a precedential opinion, holding that the student has to show that defendants were deliberately indifferent to known discrimination such that their response was clearly unreasonable. This is a difficult burden for the plaintiff to satisfy.

Whether defendants can invoke qualified immunity in this case under the Gant standard is impossible to tell, the Second Circuit (Straub and Livingston) says, because the district court did not address Gant in rejecting qualified immunity and issued a cursory analysis of the issue. Under the circumstances, defendants get another crack at the apple in seeking qualified immunity. The case is remanded to the district court to try again.

2d Circuit reverses summary judgment in racial discrimination case

The Court of Appeals has reinstated a racial discrimination claim where the plaintiff alleged that he was subjected to racist ridicule and hostility in the workplace and then denied a promotion on the basis of disputed facts.

The case is Johnson v. CH Energy Group, a summary order decided on November 17. After joining the company in 2001, Johnson sought to become a "Lineman First Class" in 2006. The test for this position includes a written and practical component. Meanwhile, he endured various racial comments and acts of hostility at work. As the Court of Appeals (Katzmann, Newman and Pooler) summarize the evidence:

When he first started as a Lineman, Johnson, who is African American, claims that he found a photograph of a black Lineman from Con Edison (a competitor firm) and on another occasion, a black woman, taped to his locker. He says that one of his colleagues called him “Boy” and “Willis.” Johnson further alleged that a photograph of all of the lineman in the Kingston branch had been taped to his locker, and that his picture had been colored black.

While he was employed at the Kingston branch, Johnson argues that another employee of a similar level at CHG&E said that Johnson had “snowed” everyone at Kingston and that he could “see right through him.” On another occasion, in October 2005, Johnson gave Wayne Rice, his supervisor, a length of rope as part of a work-related task. Johnston claims Rice threw it back at him, and said “maybe [he would] make a noose.” Thomas Brocks, a Vice-President of Human Resources at CHG&E, contacted Johnson after the noose incident and encouraged Brocks to inform him if he heard any other racial comments. Johnson also alleges that Dave Warren, one of his supervisors, was dismissive of him and critical of his work in front of his coworkers.

In 2006, seeking the promotion, Johnson passed the written exam but failed the practical component. Two of the proctors said that Johnson removed his glove during the test; Johnson said this was not the case.

Johnson has a prima facie case of racial discrimination based on the noose and photograph incident. To prevail, he has to show that management's reason for the promotion denial is pretext for discrimination. The Second Circuit notes that, under Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000), the jury can infer discriminatory intent on the basis of management's false reason. However, under Second Circuit precedent, the court must review the totality of the circumstances in making that determination, including the strength of the prima facie case. Under this test, summary judgment is vacated and the case is remanded for trial. The Court of Appeals reasons:

Johnson’s history of discrimination at CHG&E, including the noose incident and the harassment he experienced when his photograph was colored black and photographs of African Americans were placed on his locker, add strength to his prima facie case of race discrimination. Second, the proctors’ disagreement about whether or not Johnson had removed the glove, along with his history of disagreement with one of the proctors, Dave Warren, provides reason to question the explanation the employer has proffered for the employment decision.

(Nearly) million dollar fee application gets second look

After logging more than 2,400 hours on a First Amendment retaliation case which produced a positive opinion in the Court of Appeals in 2005, Carol Konits' lawyers filed an application for attorneys' fees, which are available to prevailing parties in civil rights litigation. They wanted $906,000 in fees. The district court gave them approximately $364,000. This steep reduction brings the case to the Court of Appeals.

The case is Konits v. Valley Stream Central High School District, decided on October 26. Attorneys' fees awards are the product of a complicated formula the goes beyond simply multiplying the lawyer's hourly rate by the number of hours expended. What's a reasonable hourly rate? What if, like this case, the case takes years to resolve and the lawyer's rate increases in the interim? What if the lawyer spent time on losing claims? You get the picture. Attorneys' fees litigation can take several years if the issues are hotly disputed.

In an unpublished opinion, the Second Circuit (Calabresi, Hall and Sessions, D.J.) remands this case to the Eastern District of New York because the trial court reduced the requested attorneys' fees without providing sufficient reasons for that reduction. As the Court of Appeals notes, "[t]he district court is required to present a 'concise but clear' record for review by the appellate court." That didn't happen here.

For example, while the trial court reduced the fees by one-third for work expended prior to March 2, 2004, when certain constitutional claims were dismissed, "the court did not provide a sufficient explanation for its finding that the claims are 'sufficiently separable' so as to be a basis for reducing the attorneys' fee award." Similarly, while the claims against many defendants were dismissed, the district court did not adequately explain the 25 percent reduction, "particularly in view of the judge's comparatively limited involvement in the case which would reduce his exposure to counsel's work over the full life of the litigation." These and other inadequate explanations for the dramatic reduction in requested attorneys' fees lands the case back on the trial judge's desk for a second look.

Court rejects Valerie Plame's First Amendment suit against CIA

Remember the Valerie Plame scandal? She was outed by the Bush administration as a covert CIA operative after her husband, Joe Wilson, accused the President of going to war against Iraq on false pretenses. Bush is gone, and the scandal is forgotten. But it takes a while for these political scandals to reach the courts. That day has arrived.

The case is Wilson v. CIA, decided on November 12. Valerie Plame-Wilson wanted to reveal information about her career with the CIA in her autobiography. The CIA pulled out Plame's secrecy agreement with the agency in which she promised as a condition of her employment not to disclose classified information. In fact, in prosecuting Scooter Libby for lying about slipping Plame's covert status to the media, the government did publicly disclose that, from January 2002 forward, Plame worked in the CIA's Counterproliferation Division, focusing on Iraq. Plame wanted information about her pre-2002 employment in the book. Does the First Amendment allow her to do so?

Plame says "yes." While the CIA can impose a prior restraint on employee speech as a condition of employment, it cannot prevent an former employee from publishing classified information if the agency itself has officially disclosed it. Plame also points out that the media had widely reported that she was a classified CIA employee for 20 years, and that rigid enforcement of the secrecy agreement means that she is the only person who cannot write about portions of her career.

The Court of Appeals (Katzmann, Raggi and Keenan [D.J.] says no. The opinion summarizes the Plame scandal and how the government exposed Plame's CIA service in the context of her husband's whistleblowing about the Iraq war in the wake of President Bush's 2003 State of the Union Speech in which he made the case for the Iraq war. The intriguing context of this case, however, does not gain Plame any relief. The CIA did not "officially" disclose information about Plame's pre-2002 service, even if it did refer to it in a private letter to Plame in the context of her retirement. While a Congressman cited the letter in publicly trying to enact legislation on Plame's behalf, the CIA did not know that Plame was going to provide the letter to Congress, and the letter itself inadvertently omitted the "classified" stamp which makes it contents off-limits. The Court of Appeals concludes, "a former employee's public disclosure of classified information cannot be deemed an 'official' act of the agency."

Plame also argues that the government's interest in classifying this information is weakened by the fact that the media had already publicized her pre-2002 role with the CIA. Plaim and amici suggest that including this information in her book allows her to participate in the public debate over the scandal that led to her resignation. The Court of Appeals disagrees, concluding that "This argument overlooks a critical fact: as a condition of her employment with the CIA, Ms. Wilson signed a contract forever waiving her right to 'disclose in any form or in any manner ... information which is classified ... and which I have obtained during the course of my employment" with the CIA. Plame remains bound by this agreement, which does not contain an exception allowing her to discuss classified information provided that no harm would result.

Student harassment case fails under "actual notice" test

It's illegal for school districts to condone racial harassment among students. But the legal standards for these cases makes them hard to win. You might think student harassment cases apply the same legal standards as workplace harassment cases. Think again.

The case is D.T. v. Somers Central School District, a summary order decided on October 15. The plaintiff is a black student who endured racial harassment from classmates. The Court of Appeals (Raggi, Livingston and Cogan) affirms summary judgment for the school district. The legal analysis shows how hard it is to win these cases. First, the district must have actual notice of the harassment, unlike in employment discrimination cases, where the employer can lose if it should have known about the harassment. Under Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Supreme Court rejected the "constructive notice" test in Title VI and Title IX cases. This means the parents' evidence in the form of affidavits from a psychologist and another parent about harassment against a different student are not relevant to this case.

Second, the school district loses the case only if its response to the racial (or sexual) harassment was "clearly unreasonable in light of the known circumstances." That's the rule in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). While an employer which unreasonably deals with sexual harassment loses the case, the "clearly unreasonable" test in school harassment cases is a much higher standard, a "deliberate indifference" test. The parents lose this case because "the record indicates that J.L.'s teacher reprimanded the alleged harasser for her actions in class and may have sent one of the two students out in the hall." In addition, there is no evidence that the teacher's response to the harassment caused subsequent harassment against plaintiff elsewhere in the building. Under Gebser and Davis, no deliberate indifference.

The Second Circuit decision does not tell us what happened to the student, but the district court ruling does. Classmates said he was "not black enough" and called him a "nigger." In the "cafeteria incident," "student MC and student L approached JL's lunch table and shook hands with everyone seated at the table, except JL and JL's friend, KF. During this encounter, L hit JL in the back of the head approximately twelve times, MC told JL that he was not being a 'good nigger' and MC grabbed JL's chair, causing JL to fall to the ground."

See how hard it is to win these cases? On this evidence, if J.L. was an employee at the school district and he suffered this kind of harassment, the school's response might well entitle him to victory. Why is it so hard to win student harassment cases? Part of the reason has to do with the fact that the Constitution's Spending Clause applies in deciding these cases, which invokes a different legal test.

When the Supreme Court recognized a cause of action for student-on-student harassment under Title VI, it did so in a close vote. Four Justices did not want these claims to proceed at all. Justice Kennedy in dissent warned of an "avalanche of liability" against schools. He added,

The only certainty flowing from the majority's decision is that scarce resources will be diverted from educating our children and that many school districts, desperate to avoid Title IX peer harassment suits, will adopt whatever federal code of student conduct and discipline the Department of Education sees fit to impose upon them. The Nation's schoolchildren will learn their first lessons about federalism in classrooms where the Federal Government is the ever-present regulator. The Federal Government will have insinuated itself not only into one of the most traditional areas of state concern but also into one of the most sensitive areas of human affairs. This federal control of the discipline of our Nation's schoolchildren is contrary to our traditions and inconsistent with the sensible administration of our schools.

As this was a 5-4 case, this language could have been the majority, and student-on-student lawsuits would have been scuttled from the outset.

Unusual jury verdict form costs plaintiff $12,000 in damages

When the judge gives the case over to the jury, the jury goes into a room with a verdict sheet to guide its deliberations. The verdict sheet contains questions that help the jury answer the questions relevant to the case. A good verdict form makes the process easy, sort of like a checklist. A bad verdict form, well ...

The case is Aczel v. Labonia, decided on October 9. This is a police beating case, and the jury awarded plaintiff about $12,000. But there were problems with the verdict form. The jury decided that the police officer did use excessive force and that plaintiff was entitled to damages. But the jury also found that the officer had qualified immunity from suit, which is a legal doctrine giving the police the benefit of the doubt in hard cases and relieves them of any liability. How can the jury find that the officer has qualified immunity but that he also has to pay the plaintiff $12,000 in damages for excessive force?

The trial court entered judgment for the officer on the basis that qualified immunity means no damages for plaintiff. Over a colorful dissent from Judge Pooler, the Court of Appeals (Leval and Parker) affirms the trial court. The bad verdict form produced two appeals to the Second Circuit. This opinion puts an end to the case. The plaintiff gets nothing, not even a new trial.

The majority says there is no inconsistency in what the jury did. "Those factual findings were (a) that Labonia used excessive force and (b) that Plaintiff suffered some damages caused by that use of excessive force, but that (c) Labonia reasonably believed his conduct was justified in the circumstances and was therefore entitled to qualified immunity." We can expect that excessive force will cause the plaintiff harm, but that reality is not inconsistent with the notion that the excessive force was justified under the circumstances. Qualified immunity trumps the excessive force finding. The damages award is a nullity, and the jury should not have tried to award them.

This case does provide some insight into how jurors think. After the jury came back with the inconsistent verdict, the judge told the jury to resume deliberating because qualified immunity means no damages. The jury then gave the judge a note stating it was trying to compromise among rigid positions and that it wanted plaintiff to at least recover his expenses and let the police officer off the hook. The judge told the jury it cannot do this; it's all or nothing. Then the jury gave the judge a note stating it wanted to reopen deliberations on the claims that it had already rejected. The jury left the inconsistent verdict sheet as it was and formally completed its deliberations. Apparently the jury liked the plaintiff ... but it liked the police officer also. This why the case went to the Second Circuit on two separate occasions.

The complicated nature of this case produced a lengthy dissent from Judge Pooler, who writes:

In this case, the jury’s initial verdict was an impermissible compromise between jurors who wanted to find that defendant-appellee Leonard Labonia was entitled to qualified immunity and jurors who wanted to award damages to plaintiff-appellant John Aczel. After the legal inconsistency was explained by the judge, the jury was invited to strike its damage award, if it indeed agreed that Labonia was entitled to qualified immunity. The jury could not reach agreement to do so. Nonetheless, the district court set aside the jury’s damages award. Never before have we permitted a district court to reconcile a jury’s inconsistent verdict, where the jury was asked to do so itself, but was unable to reach agreement. This result usurps the role of the jury and fails to accord proper deference to Aczel’s Seventh Amendment rights. I would vacate the district court’s judgment as to Aczel’s claims of excessive force and assault and battery against Labonia and remand for a new trial on those counts.

Full Second Circuit will not re-hear doctor's conscientious objector case

If you practice long enough in the Second Circuit, sooner or later you are going to file a petition for en banc review. For the initiated, en banc review means that the entire Second Circuit, not the just the three judges who heard your case, decides to re-hear the case as a whole in order to set the law straight once and for all or to resolve a matter of exceptional importance. The Second Circuit rarely grants en banc review, but that does not stop people from trying.

A few months ago, the Court of Appeals ruled that a military doctor was entitled to conscientious objector status, crediting his belief that American involvement in Iraq and Afghanistan prompted him to sincerely change his mind about the morality of war. That case, Watson v. Geren, 569 F.3d 114 (2d Cir. 2009) is summarized here. The Court of Appeals held there was no basis for the army's rejection of Watson's petition, and that it would be futile to send the case back to the army for further consideration. The Second Circuit granted Watson's petition, and the case was over.

But it was not over. An active judge of the Second Circuit polled the court to see if en banc review was appropriate. Adhering to the original panel decision, the Court decided against en banc review, but not without a lengthy opinion from the judges who wanted the Court to take up the case again.

The majority says en banc review is not warranted because cases like this come around "once in a generation," hardly creating a pressing need for the entire Court to take up the issue. The Court also points out one of the criteria for granting en banc review in the first place: to clarify the state of the law, not to reanalyze the evidence in light of settled legal standards. The majority says, "We recognize that there may be differing views as to how the law should be applied to the facts in this case. But if the legal standard is correct, then the full court should not occupy itself with whether the law has been correctly applied to the facts. ... If that were the appropriate course, then our dockets would be overloaded with en banc polls contesting a panel’s examination of particular sets of facts."

Led by Judge Raggi, the judges who wanted to re-hear the case offered extensive analysis for their position. Noting that the Watson decision "concludes that it would be impossible for the agency to identify any reason with a basis in fact to support its challenged decision [against Watson]," Judge Raggi writes, "[t]he conclusion is disturbing for many reasons, not least of which are that the 'agency' in question is the United States Army and the challenged decision is the denial of a conscientious objector application, an issue on which the applicant bears the burden of proof by clear and convincing evidence and over which judicial review is 'the narrowest known to the law.'" Judge Raggi would send the case back to the army to further explain its decision to deny Watson conscientious objector status.

Enough judges sit on the Second Circuit that you have to believe that cases that win through one three-judge panel could very well lose if a different panel heard the case. If Judges Raggi, Cabranes, Jacobs and Livingston initially heard the appeal, Watson probably would not receive conscientious objector status. Judge Raggi summarizes Watson's position. He is a radiologist who opposes all war because all human life is sacred and war is a futile means of resolving human disputes. Yet, Judge Raggi suggests, the army could very well reject Watson's story because he would not serve in a combat role but, instead, he would save lives. To Judge Raggi and the others who signed on to her opinion, it is quite a stretch for Watson to object to his role.

The Army might reasonably identify an inconsistency between this opposition and Watson’s professed belief in the inviolable sanctity of every human life, the core of his personal moral code. Watson submits that there is no inconsistency because he is not suggesting that wounded American soldiers should be left to die; he is simply refusing himself to play any part in their treatment. He expects that other doctors – presumably with less refined moral codes – would provide the treatment necessary to save soldiers’ lives. It would hardly be irrational for [the army] to reject this tortured reasoning. If a person sincerely believes an act is immoral, then the person might reasonably be expected to believe that the act is immoral no matter who commits it. I am hardly suggesting that Watson should believe it immoral for any doctor to treat wounded American soldiers, a position that necessarily leads to the breathtaking conclusion that it is morally preferable for such wounded Americans to die for lack of medical care than for any doctor to play a part in their “weaponization.” I am noting simply that Watson’s effort to have it both ways, refusing to treat wounded soldiers himself but not opposing treatment by others – thereby denying the possibility of, and avoiding responsibility for, the loss of soldiers’ lives – exposes the shallow moral foundation of his claim to conscientious objector status.

Judge Raggi's opinion gets even more interesting when she talks about Watson's opposition to all war in the context of the Iraq and Afghanistan Wars. She suggests that the Army could question Watson's belief that war is "an entirely shameful endeavor" because, while "the particular war actions that he references [Iraq and Afghanistan] are ones subject to easy condemnation or, at least, to present debate," this only begs the question: whether "he also views as 'shameful' those war actions generally recognized for their liberating effects," such as Lexington and Bunker Hill, Iwo Jima, the Civil War and the liberation of concentration camps in World War II as "missing from Watson's list of shame."

No relief for man tortured in Syria under "extraordinary rendition"

In a rare en banc ruling, the Second Circuit has held that a foreign national whom the United States shipped to Syria to be tortured under the "extraordinary rendition" program cannot sue the U.S. government for civil rights violations. In the 7-4 decision, the Court of Appeals cites executive authority and national security concerns in declining to extend Bivens liability in this context.

The case is Arar v. Ashcroft, decided on November 2. This case was originally decided by the Court of Appeals last year, 532 F.3d 137 (2d Cir. 2009), when a three-judge panel ruled against Arar. The full Court of Appeals (11 judges) took up the case.

Full court review by the Second Circuit is almost as rare as a court finding Bivens liability, named after a 1971 Supreme Court case which held that federal officials may be sued for civil rights violations. But as the Court notes in this case, the Supreme Court rarely authorizes Bivens cases, usually finding either that the plaintiff has other ways to gain relief or that "special factors counsel[] hesitation" in creating a new right. In fact, the Supreme Court has only twice authorized a Bivens case. The Second Circuit is not about to open that door in a case like this.

The seven judges who ruled against Arar find that he cannot sue the U.S. government for sending him to Syria for torture. (Arar, a Syrian and Canadian citizen, was accused of having terrorist ties). Since Congress has not authorized lawsuits for this violation, the courts can only do so under special circumstances. Chief Judge Jacobs emphasizes that this case is inappropriate for judicial review because such a case "would have the natural tendency to affect diplomacy, foreign policy, and the security of the nation." Among other particulars, the Court says that this case would enmesh the courts in American foreign policy, a field in which the courts lack expertise. This case would also probe governmental secrets, drag foreign governments into the mix, intrude on presidential authority, implicate classified information and force the government to settle the case in order to avoid these problems, opening the door to "graymail," a term of art which means the government pays money to the plaintiff to protect classified information.

The four judges in dissent have turned in strong opinions on the other side. Judge Parker points out that the Convention Against Torture makes it illegal for the government to use torture in any circumstance, be it a state of war or political instability. Judge Parker's temperament is sober and measured, but in this case he decries "the miscarriage of justice that leaves Arar without a remedy in our courts" and says that sending a man to Syria to be tortured "shocks the conscience." He further criticizes the majority's rigid deference to the Executive Branch and points out that national security justifications often fall flat, i.e., the Pentagon Papers case and the Supreme Court's decisions upholding the Sedition Act of 1918 and the more recent prosecution of Jose Padilla. Recent Supreme Court reviewing policies at Guantanamo Bay also undercut the en banc majority's reluctance to interfere with Executive Branch authority.

Judges Sack, Pooler and Calabresi also file dissents. Quoting Hamlet, Judge Calabresi opens his by stating that "I believe that when the history of this distinguished court is written, today's majority decision will be viewed with dismay[.] I add a few words of my own, ... 'more in sorrow than in anger.'"