Friday, July 31, 2009

You can be arrested for breaking into your former marital residence

The Court of Appeals often grants summary judgment on qualified immunity grounds in false arrest cases. This happens even though the trial court may actually deny summary judgment, but the police officers can take up an immediate appeal under an exception to the rule against interlocutory appeals. Since probable cause (a defense to false arrest) and qualified immunity are both objective inquiries which ask whether a reasonable officer would have believed the plaintiff was committing a crime, the police officers win these appeals more often than you think.

The case is Finigan v. Marshall, decided on July 29. Finigan went to her former marital residence to get some of her stuff back. She got a locksmith to give her the key, and she entered the house without her estranged husband's permission. You know what happens next. Someone called the police because of the suspicious activity, a possible burglary-in-progress. When deputy sheriff Marshall showed up, Finigan told him she had legal title to the property and was only retrieving her possessions. Marshall did not try to verify this information. Instead, he took Finigan to the police station and placed her under arrest. He ultimately let Finigan go and she was never charged with a crime.

This case has false arrest written all over it. The district court certainly thought so, and denied Marshall's motion for summary judgment. Marshall immediately appeals his qualified immunity argument, something you normally can't do until after the trial ends. But qualified immunity entitles police officers to this exception because they are immune from suit if reasonable officers in their shoes would have believed the arrest was legal.

The Court of Appeals finds that Marshall had probable cause to arrest Finigan for criminal trespass (a crime closely related to burglary). We make this determination based on objective factors known to Marshall, not his subjective intent in arresting Finigan. Marshall acted reasonably because he knew that Finigan was divorcing her husband who lived in the house alone. Responding to a neighbor's report of a possible burglary, Marshall also knew that Mr. Finigan had changed the locks and wasn't home. He also knew that Mrs. Finigan had somehow entered the house and removed property. Mr. Finigan did not consent to have his estranged wife enter the house.

Didn't Mrs. Finigan had title to the property? That's not enough to win the case, the Second Circuit (Winter, Katzmann and Raggi) says. "[T]he issue is her right of entry under the circumstances described above, and title does not provide an absolute right to enter at times of one's choosing without the permission of the occupant." Under New York law, "A non-resident spouse who is a titled owner of a house and enters without permission of the resident spouse may be convicted of burglarizing his or her own property." Did you know that was the law in New York? I didn't. See, People v. Glanda, 774 N.Y.S.2d 576 (2004). This may not make any sense, but actually it does, the Court of Appeals tells us, because a contrary rule "could lead to circumstances fraught with danger" in that some spouses in divorce proceedings will mistakenly believe that no one is home, triggering a violent response from the occupant.

Wednesday, July 29, 2009

Islamic scholar gets another chance to challenge visa denial

An Islamic scholar was denied a visa to teach in the United States because he donated money to an organization that had supplied funds to Hamas. The government thought the scholar gave "material support" to a terrorist organization. Not so fast.

The case is American Academy of Religion v. Napolitano, decided on July 17. The government can deny your visa application if you give "material support" to a terrorist organization. Think it's a simple inquiry? It's not. If things were that simple, we wouldn't need courts, judges or lawyers.

The scholar is Tariq Ramdan, "a well-known Swiss-born Islamic scholar whose work focuses on on the integration of Muslim beliefs with Western European culture and society. Before 2004, he traveled regularly to the United States, giving lectures at institutions such as Harvard and Princeton and to the State Department." Notre Dame hired him as a tenured teacher in January 2004, but his visa was held up, according to the Los Angeles Times, because he "endorse[d] or espouse[d] terrorist activity." He resigned the teaching position in December 2004 after the Department of Homeland Security dilly-dallied on his renewed visa petition. The government then denied Ramadan a visa to temporarily visit the United States to attend conferences. Hence the lawsuit, which has First Amendment implications.

So what was the problem? Ramadan had admitted that he gave about $1,300 to Association de Secours Palestinien (ASP). In August 2003, the Treasury Department designated ASP as a terrorist organization because it gave money to Hamas. Under the law, an applicant can be denied entry into the United States if he "commit[s] an act that the actor knows, or reasonably should know, affords material support, including ... funds ... to a terrorist organization ... unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization." In order to figure out exactly what this law means, the Court of Appeals has to engage in extensive statutory analysis.

The Court of Appeals rules in Ramadan's favor. While the Second Circuit (Newman, Feinberg and Raggi) notes that there is no dispute that ASP gave Hamas money and that Hamas is a terrorist organization, the Court of Appeals interprets the statute to require that Ramadan knew or had reason to know "that his donations to ASP constituted material support to a terrorist organization because it had funded Hamas." So it is not enough to show that Ramadan gave money to ASP. He had to knowingly support a terrorist organization (or have reason to believe that he was doing so). Since Ramadan made his contributions between 1998 and 2002, before the government designated ASP as a "Specially Designated Global Terrorist," he could prevail on this point.

Under this framework, the government has to confront Ramadan with the claim that he was in violation of the law, and then Ramadan has a chance to defend himself. This does not require a "mini trial." "It will suffice for the consular officer to state the knowledge alleged to render the visa applicant ineligible and then afford the applicant a reasonable opportunity to present evidence endeavoring to meet the 'clear and convincing' negation of knowledge." The government now has the opportunity to assure the trial court that it satisfied this legal standard.

But there is one final point. Under Kleindienst v. Mandel, 408 U.S. 753 (1972), a Supreme Court ruling from the Burger Court era, courts may not "look behind" exclusion decisions unless there is a well supported allegation of bad faith on the government's part. This gives the government much discretion in this kind of decision-making.

Monday, July 27, 2009

Passing the ball to the State Court of Appeals on the City Human Rights Law

Even the worst sexual harassment cannot get you a lawsuit against your employer if management promptly took care of the problem. If a supervisor committed the harassment, the employer may be automatically liable, but there's a catch: under two Supreme Court rulings from 1998, the employer can win the case if the employee does not reasonably take advantage of in-house policies which encourage timely complaints. The employer also wins if it promptly investigates the allegations and punishes the harasser. We call that the Faragher defense.

That framework for resolving sexual harassment cases applies under Title VII of the Civil Rights Act of 1964, the primary employment discrimination statute under federal law. The New York State Human Rights Law uses the same framework. But what about the New York City Human Rights Law? That's what the Second Circuit is trying to find out.

The case is Zakrzewska v. The New School, decided on July 27. The City Human Rights Law (technically, New York City Administrative Code Section 8-107) offers more remedies for sexual harassment than federal or state law. Unlike federal and state law, it provides for punitive damages. Unlike state law, it provides for attorneys' fees if the plaintiff wins the case. An argument can also be made that the Faragher defense does not apply under the city law.

The U.S. Court of Appeals heard that argument on June 16, 2009. The plaintiffs did not sue under Title VII. They brought the case in federal court because the parties are citizens of different states and the case is valued in excess of $75,000. In an interesting footnote, the Second Circuit observes that "Ordinarily, Title VII provides the cause of action for workplace harassment lawsuits brought in federal court. However, as the District Court observed, the instant case 'is representative of an increasing volume of employment discrimination cases that are brought [in federal court] pursuant to one or both local New York anti-discrimination laws—the New York State Human Rights Law (“NYSHRL”) and the NYCHRL—rather than Title VII.'"

But enough trivia. The trial court decided that the City Human Rights Law does not provide for a Faragher defense. In other words, the plaintiff wins if a manager sexually harassed her. But the trial court also decided this issue is so important that the case should be appealed to the Second Circuit right away (cases normally can't be appealed until all issues are decided, usually after trial). Now the ball is in the Second Circuit's hands. The Court of Appeals recognizes this issue is quite important, since New York City is an enormous municipality with zillions of workers who are covered under this civil rights statute. Without the Faragher defense, the employer loses the case so long as a manager or supervisor harassed the employee, so even a well-intentioned company is liable.

The Second Circuit doesn't like to definitively rule on unresolved state law principles. The process is for the U.S. Court of Appeals to certify these issues to the New York Court of Appeals which presumably is better equipped to figure out the answer. The last thing anyone wants is for the Second Circuit to interpret an important state law differently than would the state courts. As the Second Circuit puts it: "Although a decision from our Court is binding only within in the federal courts of our Circuit, our interpretation of the New York City Administrative Code would undoubtedly have some impact on employment discrimination claims pending in the state courts as well. We therefore proceed with caution and deference to the New York Court of Appeals." So now the ball has been passed to the New York Court of Appeals.

While the mid-level state appeals court with jurisdiction over New York City has already decided that the Faragher affirmative defense does not apply to the City Human Rights Law (Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27, 32 (1st Dept. 2009)), the Appellate Division is not the State Court of Appeals. The State Court of Appeals has discretion whether to take the Second Circuit up on its offer. If the State Court of Appeals decides not to resolve this issue, than the Second Circuit has to resolve it. My guess is the State Court of Appeals will accept this appeal.

Tuesday, July 21, 2009

Bergstein & Ullrich prevail in student First Amendment appeal

Under the Supreme Court's precedents, students in public school have limited First Amendment rights. Political speech gets the broadest protection under Tinker v. Des Moines School District, 393 U.S. 503 (1969), but these cases are harder to win when the student is accused to making violent statements. The legal standard is whether school authorities could have reasonably concluded the statement would materially and substantially disrupt the work and discipline of the school.

The case is Cuff v. Valley Central School District, decided on July 21. Represented by Bergstein & Ullrich, LLP, the plaintiff was a 10-year-old student who was asked as part of a class assignment to describe his personality. Students did this by writing out their favorite things in the cartoon of an astronaut. In describing his wish, the student wrote in crayon that he wanted to "blow up the school with the teachers in it." The district court dismissed the Complaint under Rule 12. The Court of Appeals reverses and sends the back for discovery.

Dismissal prior to discovery is premature, the Court of Appeals (Jacobs, Hall and Straub) concludes. Unlike the student speech cases which do not survive dismissal, "this case is before us at the pleading stage, and the particular facts pled do not compel" the conclusion that the student's speech would "foreseeably create a risk of substantial disruption" within the school environment. This is because "B.C. was, at the time of the infraction, a ten-year-old fifth-grade student; his apparent threat was made in crayon in direct response to a school assignment; he did not show the assignment to any classmates but rather handed it directly to his teacher; and B.C. had no other disciplinary history that would suggest a violent tendency. We cannot say, based on these facts, that it was reasonable as a matter of law to foresee a material and substantial disruption to the school environment, just as we cannot say that foreseeing such a risk was, as a matter of law, unreasonable."

Thursday, July 16, 2009

A second bite of the apple

Some realters sued Orange County (in upstate New York) over a tax assessment. They filed a lawsuit in state court claiming, among other things, that due process requires actual notice to property owners of a tax assessment, not newspaper notice. The case was dismissed as untimely, as the statute of limitations for those cases in state court is four months. So the plaintiffs filed a lawsuit in federal court, also claiming a due process violation under the Fourteenth Amendment. The Second Circuit says you can do this.

The case is Cloverleaf Realty v. County of Orange, decided on July 15. At first glance, you would think that the realters cannot file an essentially identical lawsuit in federal court after the claim was dismissed in state court on statute of limitations grounds. After all, the realters gave it their best shot in state court but lost the case because it was untimely. Why should they get a second bite at the apple on the basis that the federal claim has a longer statute of limitations?

The state court declaratory judgment suit had a four-month deadline. But a civil rights case in federal court carries a three-year statute of limitations. As the Second Circuit (Feinberg, Leval and Cabranes) puts it, "[t]he difficulty in this case arises from the circumstance that Cloverleaf's procedural due process claim was untimely under the law applied by the New York courts, but timely under the law applied by the federal courts." It is true that federal court must respect state court judgments. In 1981, the New York Court of Appeals issued Smith v. Russell Sage College, 54 N.Y.2d 185 (1981), which was interpreted to mean that dismissals based on statute of limitations represent judgments on the merits, which means you can't sue again in a different court. But in 1999, the New York Court of appeals issued Tanges v. Heidelberg N. Am., Inc., 93 N.Y.2d 48 (1999), which stated that "[t]he expiration of the time period prescribed in a Statute of Limitations does not extinguish the underlying right, but merely bars the remedy."

Cutting through the legal mumbo-jumbo, the Tanges decision means that a state court action dismissed as untimely does not prevent the plaintiff from suing in a different jurisdiction with a longer statute of limitations. Since the state court dismissal is not "on the merits," the plaintiff is free to try again in federal court if a longer statute of limitations applies. Since three years (federal court) is a lot longer than four months (state court), the plaintiffs get that second bite at the apple.

Thursday, July 9, 2009

Disabled doctor loses ADA claim

A doctor of osteopathic medicine lost his license when New York found him guilty of engaging in improper medical practices, including false statements in applying to work for hospitals and providing negligent and incompetent care. But he has a defense: he has a learning disability as well as Attention Deficit Hyperactivity Disorder and can work again if the State complied with the Americans With Disabilities Act. He loses the case.

The case is Harris v. Mills, decided on July 9. Dr. Harris argues that the State Education Department "wrongly denied him an 'understanding of the impact of [his] disabilities,'" which resulted in an "unfair" reinstatement hearing. But the Court of Appeals (Sack, Parker and Cote) disagrees, reasoning: "Harris thus alleges, at core, that if only the defendants would 'understand' the impact of his disabilities, they would be willing to overlook the actions that caused him to lose his license in the first place." This does not allege a legitimate reasonable accommodation claim under Title II of the ADA because "Harris would be entitled to a reinstatement of his license only if his disability is accommodated by the state's relaxation of its license qualifications." There are no preferences under Title II, only reasonable accommodations that create a level playing field for disabled plaintiffs.

Dr. Harris has another argument. He wants to be able to read to the Committee on Professions a written explanation of his case so that his case "would be more organized and clearly presented." This also fails to make out an ADA claim. The Court notes that while plaintiff "asks only for reasonable access to a hearing in which to make his case for resinstatment," in fact, he does not allege that he was denied this opportunity at the hearing because of his disability, and "it is not clear how such an accommodation would have helped Harris" since the complaint alleges that he has "difficulty with comprehending the written word" and "a related problem with written expression." Based on these admissions, any attempt to read to the Committee at the hearing would have frustrated his goals, not advanced them.

Wednesday, July 8, 2009

Let's face it: inmates have few rights

You knew that inmates have few rights, and I guess if the public had a chance to vote on the issue, inmates would have no rights at all. For the moment, inmates do have limited free speech rights. But they are not allowed to advocate work stoppages in jail.

The case is Pilgrim v. Luther, decided on July 6. Pilgrim was incarcerated at Sing Sing Correctional Facility when a search of his cell revealed three copies of a pamplet entitled, "Wake Up!" The pamphlet encouraged inmates to engage in work stoppages and other disruptive behavior at the prison. Pilgrim was punished for this.

A New York prison regulation (section 104.12, to be exact) prohibits inmates from leading or participating in work stoppages, sit-ins "or other actions which may be detrimental to the the order of the facility." In Daumutef v. O'Keefe, 98 F.3d 22 (2d Cir. 1996), the Court of Appeals held that, consistent with Supreme Court precedent which grants prison officials leeway in regulating expressive inmate behavior, section 104.12 does not violate the First Amendment as applied to inmates who circulated a petition asking for better prison conditions.

The Daumutef precedent applies here: Sing-Sing officials are allowed to punish Pilgrim for advocating work-stoppages. The Court of Appeals (Cabranes, Miner and Stein) notes that "The Supreme Court has held that 'in the prison context, an inmate does not retain those First Amendment rights that are inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'" As "work stoppages are deliberate disruptions of the regular order of the prison environment and are a species of [the kind of] 'organized union activity' [prohibited under Supreme Court precedent]," Pilgrim had no right under the First Amendment to advocate this, especially where "other less disruptive means of airing grievances are available."

Thursday, July 2, 2009

Mundane case interpreting the 21st Amendment with interesting concurrence

Admit it. You had no idea that the federal courts are hearing cases under the Twenty First Amendment to the U.S. Constitution, the amendment that repealed prohibition. I wasn't aware of this either, but the Second Circuit just issued a ruling that analyzes the Twenty First in the context of out-of-state wine sales in New York. Kind of interesting, to be sure, but even more interesting is the concurring opinion.

The case is Arnold's Wines v. Boyle, decided on July 1. The case addresses two competing constitutional amendments. The Twenty First says that you cannot bring intoxicating liquors into a state in violation of the laws of that state. The Commerce Clause, however, says that Congress shall regulate interstate commerce. So the Twenty First -- which grants states authority to regulate interstate wine commerce -- is an exception to the Commerce Clause, which broadly grants all other interstate commerce authority to Congress. The Court of Appeals (Wesley, Calabresi and Walker) holds that New York can legally enforce a statutory scheme which prohibits out-of-state wine retailers from selling directly to New York consumers; the liquor must first pass through an entity licensed by the state.

This is an important issue to wine sellers and wine drinkers. But most people probably will not read the opinion. It's not a bad idea to read Judge Calabresi's concurring opinion, which raises interesting issues about how the Supreme Court has modified its interpretation of the Twenty First over the years in light of public attitudes toward alcohol consumption. In other words, the public debate over whether we have a living and evolving Constitution (on issues such as privacy, search and seizure and punishment under the Eighth Amendment) has not focused at all on the amendment that repealed prohibition.

As Judge Calabresi notes, the Supreme Court initially interpreted the Twenty First strictly. That amendment was enacted in 1933, the only time that one amendment repealed another (the Eighteenth Amendment made it illegal to manufacture or sell alcohol). Our focus is on Section 2, which allows states to regulate the importation of alcohol across state lines. Consistent with "evidence that the intent of section two was to give complete regulatory authority to the states over alcohol," "the Supreme Court 'made clear in the early years following adoption of the Twenty-first Amendment that by virtue of its provisions a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.' And, in this period, the Court upheld near-total control over domestic alcohol commerce by states, even to the point of opening the door to 'liquor-related political trade wars among the states.'”

So, early in the life of the Twenty First, the Supreme Court strictly interpreted that amendment, letting states do what they wanted. But that changed. In 1964, the Warren Court backed off a strict interpretation, and began to strike down certain state laws that regulated the sale of alcohol. A more conservative Court in the 1980's continued to lighten up when it came to the Twenty First.

After reviewing the evolving Twenty First amendment case law, as one of the eminent scholars on the federal courts, Judge Calabresi next asks why this is happening and what it all means. "It appears that the Supreme Court has increasingly 'updated' the Twenty-First Amendment, and it is this judicial process that I wish, briefly, to discuss." Judge Calabresi notes that "When the Twenty-First Amendment was first adopted and courts interpreted section two to authorize virtually limitless state regulation, the United States was a different place than it is today. Laws frequently regulated “morals,” and alcohol was often viewed as immoral. And even setting 'morals' aside, the prevailing view of alcohol was that it was a unique product that posed unusual dangers, both directly as an intoxicant, and indirectly, as a stream of commerce that generated corruption and crime."

Those days are long behind us. We are forging ahead, as Justice Stevens noted in a case decided in the 1990's, stating, "[t]oday many Americans, particularly those members of the younger generations who make policy decisions, regard alcohol as an ordinary article of commerce, subject to substantially the same market and legal controls as other consumer products.” But, Justice Stevens went on, “[t]hat was definitely not the view of the generations that made policy in 1919 when the Eighteenth Amendment was ratified or in 1933 when it was repealed by the Twenty-first Amendment.”

What do we do about the "seeming anachronistic legal provisions" that come before judges from time to time? Judges can interpret statutes more freely than constitutional provisions, because the constitution is much harder to amend than a statute. After outlining some of the thinking on this issue, Judge Calabresi (who wrote a book in 1982 entitled "A Common Law for the Age of Statutes"), concludes that the Supreme Court will have to deal with the problem of an evolving interpretation of an amendment, not the lower federal courts like the Second Circuit. "If the Supreme Court wishes further to meld the Twenty-First Amendment into the broad constitutional landscape, so be it. But unless and until it does, Judge Wesley’s analysis seems to me to be exactly right, and I gladly join his opinion."

The concurrence has an interesting footnote. In the context of discussing the use of history to interpret constitutional amendments, Judge Calabresi reveals a personal anecdote:

Distinguished jurists have, on occasion, been even more skeptical of court uses of history. I once suggested to Justice Felix Frankfurter that the clause in the Constitution requiring that the President be “a natural born Citizen . . . of the United States” meant only that if a person was born out of wedlock (i.e. “naturally born”) that person had to be a Citizen at birth to be eligible to be President. I did this jokingly, knowing that Frankfurter, like me, had been born abroad. I added, even more fancifully, that the clause was likely there to exclude from the Presidency the much admired, but also feared, Alexander Hamilton, who was said to be of “illegitimate” birth. The scholar-justice immediately answered, “I’ll buy that,” and then added—not in jest, I believe—“and anyway it’s as good as most of what goes for history on this Court!”

Rarely does any judge write in the first person in discussing conversations like this. This anectode was not really necessary to Judge Calabresi's analysis, but of course it's interesting enough that it should be published somewhere, right? At the time of Judge Calabresi's conversation with Justice Frankfurter, Calabresi was not yet a judge; Justice Frankfurter was on the Supreme Court from 1939 through 1962. This conversation may even have happened when Calabresi was clerking for the Supreme Court in the late 1950's. It's been maybe 50 years that Justice Frankfurter had this conversation with Guido Calabresi. It's no longer under wraps, and it will be enshrined in the Federal Reporter, Third Series, forever.