So you want to open a sex shop in Berlin, Connecticut?

The federal district court in Connecticut enjoined enforcement of a Town law regulating sex shops, as applied to a business that wanted to sell (among other things) sex toys. The Court of Appeals reverses and finds that the Berlin, Connecticut law is not unconstitutionally vague.

The case is VIP of Berlin, LLC v. Town of Berlin, decided on January 25. VIP owns a 25,000 square foot store. It wanted a zoning permit, but the Town decided that the store would violate the Town's "sexually oriented business" ordinance that says you can't situate these stores within 250 feet of a residentially zoned area. What prompted this adverse decision was the fact that the store would have an inventory of about 67,000 products, and about 8,000 of them were adult products in the form of DVDs, magazines and sex toys.

VIP brought a lawsuit claiming the sexually oriented business ordinance was unconstitutionally vague. Laws must be clear, not vague. Here's the basic rule: "As one of the most fundamental protections of the Due Process Clause, the void-for-vagueness doctrine requires that laws be crafted with sufficient clarity to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited and to provide explicit standards for those who apply them.”

The Town law says that a sexually-oriented business is an establishment that has a "substantial or significant portion" of its stock in trade in adult merchandise. What does substantial or significant mean? VIP says this language is too loose to guide any business owner. To answer this question, the Court of Appeals (Straub, Wesley and Miner [dissenting]) looks to various dictionaries that say generally that "substantial" is "of ample or considerable amount or quantity." The majority says language like "substantial" is not vague:

Applying these definitions to the present case, VIP’s proposed 8,242-item adult section clearly falls under the ordinance because the “part” of its stock in trade devoted to adult merchandise is of “considerable quantity” and “of a noticeably or measurably large amount.”

Other federal laws, by the way, use language like "substantial" in regulating corporate and government behavior. This kind of language fits nicely in laws which try to govern the cornucopia of economic and social activity that cannot be regulated more precisely. VIP's constitutional challenge to the Berlin, Connecticut law fails.

Judge Miner dissents. He agrees that the phrase "substantial or significant portion of its stock in trade" is not vague on its face. But he does argue that this language is unconstitutional as applied to VIP. The Town Manager testified that substantial or significant "means meaningful to ... the Town of Berlin ... [b]ut meaningful to either the business or the Town of Berlin. I think of a significant other. ... [I]t's somebody who is meaningful to the other person it's not just a friend so it would have some meaning." This is a subjective judgment. And "meaningful" does not mean "substantial" or "significant." "Significant other" is also vague. The fact that the Town Manager could not supply a mathematical definition and "didn't really look at a percentage" further convinces Judge Miner that this law is unconstitutionally vague as applied to VIP.

Second Circuit broadly interprets Garcetti in rejecting teacher's speech suit

The Second Circuit has held that a public school teacher who filed a union grievance to challenge the school's refusal to discipline a problem student does not have a First Amendment claim. In a 2-1 ruling that fleshes out the Supreme Court's Garcetti decision, the majority limits the free speech rights of public employees and holds that the plaintiff's "filing of the grievance was in furtherance of one of his core duties as a public school teacher, maintaining class discipline, and had no relevant analogue to citizen speech."

The case is Weintraub v. Board of Education, decided on January 27. In 2006, the Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006), that the First Amendment does not protect public employee speech made pursuant to the plaintiff's official job duties. This ruling "narrowed the Court's jurisprudence in the area of employee speech by further restricting the speech activity that is protected," the Second Circuit tells us. Until now, the Second Circuit had not explored the outer limits of Garcetti, making it perhaps the last federal circuit to interpret Garcetti in a close case.

Weintraub's fifth grade student threw books at him, but the school did not properly discipline the punk, who apparently had a violent history. Unhappy with the school's failure to take this problem seriously, Wientraub filed a union grievance. This speech prompted management to retaliate against him. Prior to Garcetti, the Second Circuit's public employee speech case law would have probably protected Weintraub from retaliation, since the speech addressed the proper functioning of a public institution. With Garcetti on the books, the Court of Appeals has to start fresh in outlining the speech rights of public employees.

The precise holding is that "Weintraub, by filing a grievance with his union to complain about his supervisor's failure to discipline a child in classroom, was speaking pursuant to his official duties and thus not as a citizen." In reaching this conclusion, the Court of Appeals (Jacobs and Walker) rejects Weintraub's argument that "'the key' to the First Amendment inquiry provided by Garcetti is whether he was 'required, as part of his employment duties to initiate grievance procedures against ... Goodman.'" This is not a bad argument, which some courts have accepted in a strict reading of Garcetti, where the plaintiff in that case (a calendar deputy in the DA's office) spoke out about a matter strictly within his job description: recommending that a questionable case be dismissed. But the Second Circuit reads Garcetti more broadly to mean that

[U]nder the First Amendment, speech can be “pursuant to” a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer. In particular, we conclude that Weintraub’s grievance was “pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties,” as a public school teacher -- namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning.

This is broad interpretation of Garcetti, as Judge Calabresi argues in dissent. But the Court of Appeals adds another wrinkle to this analysis, concluding that Weintraub also has no case because "his speech ultimately took the form of an employee grievance, for which there is no relevant citizen analogue." The Court draws this from Garcetti's statement that "While [t]he First Amendment protects some expressions related to the speaker’s job ..., [w]hen a public employee speaks pursuant to employment responsibilities, ... there is no relevant analogue to speech by citizens who are not government employees." Although the lack of any "citizen analogue" is not central to the holding in Weintraub, the Second Circuit says, "it does bear on the perspective of the speaker -- whether the public employee is speaking as a citizen -- which is the central issue after Garcetti." Judge Walker tells us that the citizen analogue for public employee speech would be a letter to the editor or political discussions in the workplace, the kinds of speech that the rest of us engage in.

Judge Calabresi dissents, accusing the majority of narrowing public employee speech rights in a strained interpretation of Garcetti. He writes that "The majority’s first prong, which looks to whether speech is 'in furtherance of' an employee’s 'core duties,' seems to me too broad." He adds, "The majority’s second prong, which asks whether there is a 'relevant citizen analogue' to Weintraub’s speech, is also a plausible interpretation of Garcetti, but I am not convinced that it is the right one."

The holding in this case rubs Judge Calabresi the wrong way: "The majority’s discussion could be read to imply that — assuming the second prong of the majority’s test is also satisfied — classroom teachers receive no First Amendment protection anytime they speak on matters that implicate anything that is 'an indispensable prerequisite to effective teaching and classroom learning.' But the prerequisites for effective learning are broad and contentious; everything from a healthy diet to a two-parent family has been suggested to be necessary for effective classroom learning, and hence speech on a wide variety of topics might all too readily be viewed as 'in furtherance of' the core duty of encouraging effective teaching and learning. The line-drawing this entails is necessarily subjective and provides little certainty to the employers and employees who must structure their behavior around our law."

Rather, Judge Calabresi would limit Garcetti 's to cases where the "employee is required to make such speech in the course of fulfilling his job duties. ... [I]t it must be possible to say that the employer has 'commissioned or created' the speech, Garcetti, 547 U.S. at 422 — that the employer in some way relies on the speech made by the employee, as where the speech is an 'official communications' or is used by the employer to 'promote the employer’s mission,' id. at 423."

No res judicata after ADA plaintiff re-files failed state case in federal court

Victims of employment discrimination can bring their claims before the New York State Division of Human Rights, which holds hearings on these claims and issues rulings which State Supreme Court can review. What if you lose your case in State Supreme Court and then bring a discrimination claim in federal court?

Experienced employment lawyers would say that you can't achieve in federal court what failed in state court. But there are some technical exceptions, including one resolved in Hanrahan v. Riverhead Nursing Home, decided on September 25.

Hanrahan filed an administrative charge with SDHR claiming that her employer discriminated because of her disability. The case went to a hearing in SDHR, and she lost, so she appealed to State Supreme Court in Suffolk County, which dismissed the case because Hanrahan did not name SDHR as a defendant to the petition. (It should have been a defendant because SDHR ruled against her at the hearing).

The district court dismissed the federal claim on res judicata grounds. Res judicata is a Latin phrase which generally means, "you brought and lost the same case in one court, so don't try it again in another court." But for res judicata to apply, the case in state court has to be resolved on the merits. Under New York law, nonjoinder of a party who should be joined (such as SDHR in this case) is a ground for dismissal "without prejudice," which means the case can be filed again with the right defendant. That is not a dismissal on the merits. It is a procedural dismissal which does not end the case for good. The Court of Appeals (Parker, Hall and Lynch) concludes that "it is thus clear that the dismissal of Hanrahan's petition for failure to join the NYDHR was not a dismissal on the merits. That dismissal, therefore, does not preclude Hanrahan from filing a new complaint, whether in state or federal court."

This seems clear enough. So why was Hanrahan's federal case dismissed? The district court said that her failure to re-file the petition "in the face of the state court's invitation to correct her error [was] tantamount to abandonment of the state proceeding." While dismissals for failure to prosecute based on failure to amend and re-file a faulty complaint are usually granted after the court instructs the deficient party to do so, that did not happen here, not so far as the Second Circuit can tell. While Hanrahan could have appealed from State Supreme Court's adverse ruling, that would have prompted the Appellate Division to reject the case because she did not serve the Town in a timely manner. That would be a decision on the merits, triggering res judicata. As Hanrahan's lawyer knew better and filed the case in federal court, this procedural bar does not apply, and the case is reinstated.

The sales director will get her overtime

The Fair Labor Standards Act is the law that gets you minimum wage and overtime if you work more than 40 hours per week. But not everyone gets overtime. The FLSA contains exemptions, including an exemption for bona-fide executive, administrative and professional employees.

This law has been on the books for decades. You'd think every nuance has been ironed out by the courts. But the courts are still filling in the blanks. The Second Circuit did so again in Reiseck v. Universal Communications of Miami, decided on January 11.

Reiseck worked for the magazine Elite Traveler. She was responsible for generating advertising sales. She got no overtime. The employer said she wasn't entitled to any because her primary duties were "directly related to management policies or general business operations of" Universal. If the employer is right, then Reiseck loses. As the Second Circuit frames the issue:

On the one hand, plaintiff was a salesperson responsible for selling specific advertising space, and so seems to fit comfortably on the 'sales' side of the administrative/sales divide. On the other hand, Reiseck also 'promoted sales' in some sense, and thus seems to have performed administrative operations. We are required to resolve this apparent contradiction. Whether advertising salespersons are administrative employees for the purposes of the exemptions to the FSLA's overtime pay provisions is a question of first impression for this Court.

The Second Circuit (Cabranes, Parker and Amon [D.J.]) sides with the plaintiff. The Court turns to the Third Circuit, which provided some "helpful guidance" on the issue in Martin v. Cooper Electric Supply Co., 940 F.2d 896 (3d Cir. 1991). "According to the logic of the Third Circuit, which we now adopt, an employee making specific sales to individual customers is a salesperson for the purposes of the FLSA, while an employee encouraging an increase in sales generally among all customers is an administrative employee for the purposes of the FLSA." Judge Cabranes asks us to consider a clothing store: "The individual who assists customers in finding their size of clothing or who completes the transaction at the cash register is a salesperson under the FLSA, while the individual who designs advertisements for the store or decides when to reduce prices to attract customers is an administrative employee for the purposes of the FLSA."

As Reiseck's primary duty was to sell specific advertising space, she was simply a member of the sales staff, not the marketing staff. This makes her a salesperson under the FLSA. True, she developed new clients in order to increase sales, but this was not her primary duty. The employer cannot invoke the exception, and the case is remanded to the district court with instructions to reconsider her motion for partial summary judgment.

Involuntary commitment case survives technical dismissal

It's hard to get excited about the Rooker-Feldman doctrine in federal court. Rooker-Feldman is named after two Supreme Court cases which stand for the proposition that you can't file a federal lawsuit which would have the effect of overturning a state court judgment. Boring, but important.

The case is Morrison v. City of New York, decided on January 11. Rooker-Feldman may be both boring and important, but it also doesn't apply that often. Not since the Supreme Court reigned in Rooker-Feldman a few years ago in Exxon Mobil Corp. v. Saidi Basic Indus. Corp., 544 U.S. 280 (2005). As the Second Circuit says, "the Supreme Court clarified the scope of the doctrine, explaining that it was 'confined' to 'cases brought by state-court losers complaining of injuries caused by state court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments."

In Morrison, after she was seen chanting and engaging in highly emotional prayer outside the Family Court which had taken up child neglect proceedings against her, the plaintiff was ordered by a Family Court judge to undergo a psychiatric evaluation. Doctors at the hospital decided there was reasonable cause to believe that Morrison had a mental illness and she was therefore kept at the hospital for two weeks against her will before she was let go. She then sued the doctors under Section 1983.

The district court dismissed the case under Rooker-Feldman, reasoning that the federal case was really a challenge to the family court order and that the doctors had no choice under that order to detain Morrison. The Court of Appeals (Jacobs, Walker and Leval) reverses. Looking at things in the light most favorable to Morrison, the family court order was unclear and it is by by no means certain that the doctors detained her at the hospital under court order. Instead, we may infer that the doctors detained her on their own judgment, which Morrison challenges. The Court says:

As between the two competing interpretations of the ambiguous Family Court order, we find the Plaintiff’s interpretation far more reasonable than the Defendants’. Admittedly, if the court order had specified what Defendants contend it means – that the hospital was ordered to detain Plaintiff for two weeks regardless of whether any medical justification was found for doing so – Defendants would have a strong argument that Plaintiff’s challenge to her two-week detention must be viewed as a challenge to the court order that directed it, and thus barred by Rooker-Feldman. But the order did not specify that the hospital was to detain her for two weeks regardless of whether it found medical cause to do so. And in our view it is not reasonable either to give it that interpretation or to assume that the Elmhurst doctors would have so interpreted it, especially in view of (a) the fact that such an order would have violated New York law and (b) evidence that neither the judge nor the doctors so understood it.

Morrison's case survives the Rooker-Feldman challenge. She can now go after the medical judgments which locked her in the hospital for two weeks. The "takeaway" from this case (to use a modern buzzword) is not only that Rooker-Feldman has limited application, but that the courts need to very closely review the lawsuit in determining whether the case violates Rooker-Feldman.

Rule 11 face-off ends in a draw

In the film version of A Civil Action, the great non-fiction book about toxic torts litigation in Massachusetts, the lawyer played by John Travolta sheepishly told the judge that he had to look up Rule 11 when defense counsel filed a motion against him. The Judge said that he, too, had to look up the rule. Rule 11 has since taken on a more prominent role in litigation, used as a weapon to sanction frivolous lawyering. But questions about its application still exist, as shown by a debate in the Second Circuit on a magistrate judge's authority to impose this punishment.

The case is Kiobel v. Royal Dutch Petroleum Company, decided on January 8. The only holding in the case is that the trial court should not have imposed sanctions against some of the lawyers in the case, a decision that once again reminds us that it's difficult to sanction lawyers in this Circuit. But larger issue -- whether magistrate judges have independent authority to award Rule 11 sanctions -- was unresolved.

Magistrate judges have taken on greater authority over the years. They often supervise discovery and make recommendations to the district judges. Or the parties consent to have the magistrate handle the case for all purposes, allowing the magistrate to resolve motions for summary judgment and try cases. Magistrate judges also see their fair share of Rule 11 sanctions motions. When can they grant them?

Judge Cabranes says they cannot grant Rule 11 motions unless the magistrates have the case for all purposes. If the magistrate is simply supervising discovery, she can only recommend to the judge that sanctions be granted. This approach would lead to fewer sanctions, since the attorney under fire has two chances to talk the courte out of this punishment. Judge Cabranes reaches this conclusion because, under 28 U.S.C. 636 (which grants magistrates their authority), these judges cannot resolve dispositive motions, such as motions "for injunctive relief, for judgment on the pleadings, for summary judgment," etc. These motions are the subject of Reports and Recommendation (or, "R&R's") which the district court resolves. As Judge Cabranes sees it, Rule 11 motions are dispositive because these motions "are the functional equivalent of an independent claim," or a "separate and independent proceeding at law that is not part of the original action." This is because Rule 11 addresses the conduct of lawyers, not the parties. The rule covers collateral conduct in the case.

Judge Leval sees it differently. He says that magistrates can award Rule 11 sanctions even if they do not have the case for all purposes. He points out that the list of motions that magistrates cannot normally decide under 28 U.S.C. 636 does not include sanctions motions, and that in 2000, Congress authorized magistrates to issue civil and criminal contempt adjudications. He adds,

in the statute’s only reference to the question of the authority of magistrate judges to impose sanctions under the Federal Rules, the new § 636(e)(4) expressly stated that its grant of civil contempt authority in consent cases “shall not be construed to limit the authority of a magistrate judge to order sanctions under any other statute, the Federal Rules of Civil Procedure, or the Federal Rules of Criminal Procedure.” While these words do not explicitly confer on magistrate judges the power to impose sanctions, they seem to express Congress’s understanding that magistrate judges possess that power. This passage says, in effect, “The fact that we expressly confer civil contempt power on magistrate judges should not be taken to imply that they lack the power to impose sanctions.”

Judge Leval infers from the above language in the 2000 law that "Congress expressed a very much enhanced trust in magistrate judges, granting them considerable punitive powers." He adds, "the grant of contempt powers to magistrate judges in 2000 now powerfully supports the conclusion that Congress intended to confer sanctioning power. It is an a fortiori case. The power to impose a criminal conviction and a sentence of imprisonment is very substantially more awesome than the power to impose a noncriminal sanction. If Congress conferred on magistrate judges the power to impose criminal convictions for contempt, and to put contemnors in jail, why would we interpret Congress’s silence on the issue of noncriminal sanctions as an implicit denial of that power?"

Chief Judge Jacobs also speaks up, but he does not take sides. This leaves us with a very interesting discussion about the authority to award Rule 11 sanctions, a discussion which does not have the force of law in the Second Circuit. Judge Cabranes says that "Judge Leval and I have now provided some modest assistance to notes and comments editors of law reviews in search of an agenda." I am sure that law students around the country are anxious to get started on their own dissertations on this issue. Then again, maybe not. Instead, as Judge Jacobs suggests in noting that courts around the country are split on the issue, "I respectfully suggest that this knot needs to be untied by Congress or by the Supreme Court." That seems more likely.

Second Circuit wants Walter House to recover damages

Here's a rare appellate case that talks in detail about how to prove damages for pain and suffering in a personal injury case. This decision is worth reading for civil rights lawyers also, since the principles are the same.

The case is House v. Kent Worldwide Machine Works, a summary order decided on January 4. House won his case on default; Kent Worldwide did not defend the case. House moved for damages in this serious personal injury case which involved horrible physical injuries and substantial pain and suffering. While the district court did not award House any damages for pain and suffering, the Court of Appeals (Sack, Wesley and Keenan [D.J.]) remands the case for reconsideration on this issue.

Of course, you have to prove damages. You can't just assume that the court will take your word for it. Plaintiff's lawyer evidently did not authenticate the medical records that would have supported a damages award. The Second Circuit strongly criticizes counsel for this omission. But one of plaintiff's doctors did submit an affidavit which detailed House's "harrowing medical odyssey" which includes amputated limbs, among other things. Plaintiff and his wife also submitted affidavits which detailed his injuries, including physical and psychological injuries which, really, no one should have to endure. These damages include loss of consortium, defined as "a more intangible yet more significant injury to the partner who suffers the loss of the relationship as it existed before the injury." This evidence resembles that which suffices in state court for damages awards, so the district court got it wrong in rejecting plaintiff's arguments.

Plaintiff also sought damages for future pain and suffering. He submitted actuarial tables from the government to show his life expectancy. The district court rejected this evidence for reasons that don't make a whole lot of sense (plaintiff used the 2006 table but not the 2007 table). As the Court of Appeals notes, "it is unreasonable to conclude that the estimated life estimated life expectancy for healthy white males under age 40 in the United States would change so materially between 2006 and 2007 that the 2006 tables could provide no credible basis on which to estimate Walter House's remaining life expectancy." In other words, there ain't much difference between the two tables, and that minor difference is no basis to deny this guy any damages.

Finally, the Court of Appeals frowns upon the district court's apparent belief that "Walter's medical expenses were a necessary predicate for the pain and suffering award." In fact, state courts have awarded past pain and suffering based on the medical procedures endured and the nature of the injury suffered. The affidavits described above were enough for these damages.

It's not illegal to fall in love

Lamont Reeves was caught with child pornography on in his home. This happened when the authorities were actually investigating him for alleged theft of social security funds. When he entered into a plea agreement on the pornography charges, without any prior notice, the judge ordered that Reeves must (among other things):

notify the Probation Department when he establishes a significant romantic relationship and ... inform the other party of his prior criminal history concerning his sex offenses.” The condition also provided that “[t]he defendant understands that he must notify the Probation Department of that significant other’s address, age, and where the individual may be contacted.”

Is this legal? The case is United States v. Reeves, decided on January 7. Judges have much leeway in imposing conditions of supervised release. But as the Court of Appeals (Parker, Pooler and Leval) notes, "If a condition, however well-intentioned, is not sufficiently clear, it may not be imposed. 'Due process requires that [a] condition[] of supervised release be sufficiently clear to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'”

This legal standard dooms the "relationship" clause of Reeves' probation. The Court of Appeals says that "We easily conclude that people of common intelligence (or, for that matter, of high intelligence) would find it impossible to agree on the proper application of a release condition triggered by entry into a 'significant romantic relationship.'” What the Court is saying is that Reeves should not risk jail time because he cannot precisely know what it means to enter into a "significant romantic relationship."

Hence, the philosophical question: what is a significant romantic relationship? Maybe we know it when we see it. But you can't send someone to jail on this subjective requirement. Judge Parker gives us a rhetorical flourish in explaining the Second Circuit's reasoning:

What makes a relationship “romantic,” let alone “significant” in its romantic depth, can be the subject of endless debate that varies across generations, regions, and genders. For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be “significant.” The history of romance is replete with precisely these blurred lines and misunderstandings. See, e.g., Wolfgang Amadeus Mozart, The Marriage of Figaro (1786); Jane Austen, Mansfield Park (Thomas Egerton, 1814); When Harry Met Sally (Columbia Pictures 1989); He’s Just Not That Into You (Flower Films 2009).

This Court is certainly not soft on child pornography, but sometimes pop culture references really do highlight complex legal reasoning. It works here. There are a million ways to define "significant romantic relationship." In fact, each word in "significant romantic relationship" has various definitions. The fact that the trial judge imposed this condition on his own (without any request from prosecutor or any notice to Reeves) doesn't help any. What also works in Reeves' favor is that he was a 50-year-old man with two children who had no prior problems or any allegations of domestic violence or abuse. While he possessed the child pornography, he did not create it, and nothing in his background suggests any sexual attraction to children per se. And, Judge Parker notes, "nothing in the record suggests that he has been a threat to any romantic partner." Indeed, the Court of Appeals concludes (in the understatement of the year):

we are hard-pressed to see how the notification requirement is reasonably necessary to protect someone with whom Reeves might choose to associate. Nor is it at all apparent that such a notification requirement will promote his rehabilitation. To the contrary, the requirement would almost certainly adversely affect, and could very well prematurely end, any intimate relationship he might develop, placing him at a greater risk of social isolation and thus impair, rather than enhance, his rehabilitation.

Barking dogs, seizures and the Fourth Amendment

There is no deprivation of liberty under the Fourth Amendment if you're served with a pre-arraignment, non-felony summons requiring nothing more than a court appearance. That's the holding of the Second Circuit in a case arising from a dog that was barking its head off.

The case is Burg v. Gosselin, decided on January 7. Prior to this court ruling, the Court of Appeals had never taken up the issue of whether a non-felony summons requiring a later court appearance was a "seizure" under the Constitution. While the federal courts recognize that restrictive conditions of pretrial release on a felony charge constitute a Fourth Amendment seizure, the question here is whether that policy applies for less serious offenses. Taking the lead from other Circuit courts, the Second Circuit (Jacobs, Leval and Daniels [D.J.]), sides with the government on this one and dismisses the Section 1983 case.

It all started when the dog control officer in East Hampton, Connecticut, issued Burg a summons requiring her to appear in court at a later time. The summons invoked a Connecticut law which says you cannot own or harbor a dog that barks excessively or creates a disturbance or is "a source of annoyance to any sick person residing in the immediate vicinity." Burg sued the dog control officer under Section 1983, claiming the summons was a seizure under the Fourth Amendment.

Some district court cases sided with plaintiffs like Burg. Those cases are now overruled. While the Second Circuit held in Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997) that future court appearances and significant travel restrictions as a condition of post-arraignment release constitute a "seizure," this case isn't Murphy. Rather, "this summons does no more than require Burg to appear in court on a single occasion, and operates to effectuate due process. There is no restriction in travel, which mattered in Murphy. Moreover, in Murphy, there were eight court appearances, not the single appearance required by the summons issued by Gosselin. ... Finally, Burg's alleged offense was an infraction, and the summons thus does not impose the burdens ... that are imposed when 'a person faces serious criminal charges.'"

A heartbreaker, but no remedy

Not all governmental actors are liable under the civil rights laws when citizens are deprived of their liberties. Some defendants are immune from suit. While a tie goes to runner in baseball, close calls go to the individual defendants in Section 1983 cases.

The case is Cornejo v. Bell, decided on January 4. Cornejo and her fiance were charged with child neglect when her son was brought to the hospital where someone determined the baby had a broken rib and suffered a heart attack. Cerrito, an investigator from the State Central Registry of Child Abuse and Maltreatment (SCR), spoke to a doctor who thought baby Kenny's brain and heart injuries were caused by Shaken Baby Syndrome but that Cornejo had nothing to do with the immediate injuries (thereby implicating her fiance) but that she could have been responsible for the older injuries. Cornejo's two children were taken from her and placed in foster care. Kenny, meanwhile, was examined at the hospital and they found no signs of abuse. He died on November 7, 2002, about a week after this episode began.

After the City's medical examiner concluded that he "could not say" that Kenny had Shaken Baby Syndrome and that his broken rib resulted from a congenital malformation, the City asked the Family Court to return the surviving son, Kevin, to Cornejo's care. But the judge denied that request on testimony from a doctor who maintained that Kenny was shaken. After the medical examiner then concluded that Kenny died from a rare heart defect, Cornejo got Kevin back.

Her lawsuit against the government actors who wronged her is dismissed, at least as against the individual defendants. The Court of Appeals (Cabranes, Miner and Rakoff, D.J.) hold that the lawyers who prosecuted the case in Family Court have absolute immunity; they cannot be sued at all. Contrary to the district court, which denied summary judgment on the basis of a non-precedential trial court ruling from 1993, the caseworkers who made the initial decision to remove Kevin from Cornejo acted reasonably under the circumstances. The Second Circuit summarizes why:

[I]t is undisputed that at the time of Kevin’s removal on October 31, ACS had received two ORTs reporting a medical opinion that Kenny had suffered violent shaking and a fractured rib. Although Salas, not Cornejo, was suspected of having shaken Kenny, the rib fracture was diagnosed as several weeks old. There was thus evidence of at least two instances of apparent abuse –- one occurring at an unknown time when Cornejo may have been present –- for which neither parent had an apparent explanation. Moreover, a caseworker had confirmed the substance of the ORTs with Dr. Esernio-Jenssen, and the injuries to Kenny were extremely serious.

Qualified immunity makes it very difficult to win cases against individual defendants in cases that require quick judgments in difficult circumstances, even if hindsight shows that the government defendants were wrong. As Judge Rakoff notes in opening the opinion, "[f]or centuries, Anglo-American law has protected public officials against claims for damages arising from actions taken in the course of duty." That immunity is not always absolute. It is qualified, hence the phrase "qualified immunity." This unfortunate case shows how it works. A heartbreaker, but no damages for Cornejo.

Circuit reinstates ADA verdict against City

The Court of Appeals has reinstated a jury verdict in a disability discrimination case involving the forced removal of a disabled man from his home for medical treatment. After the jury awarded the plaintiff $400,000 in damages, the trial court took away the verdict. The Second Circuit gives it back (but agrees that the damages were too high).

The case is Green v. City of New York, decided on December 30. This case was previously in the Court of Appeals in 2006, when the Second Circuit reversed summary judgment and sent it back for trial. 465 F.3d 65 (2d Cir. 2006). A moral of this story is that if the Court of Appeals says there is enough evidence for the plaintiff to win, the trial court cannot grant a post-trial motion in the defendant's favor if the plaintiff does prevail at trial.

The summary order in this case does not do justice to the facts. For that, you have to read the district court opinion, at 2007 WL 2584752 (S.D.N.Y. Sept. 6, 2007), which describes a chaotic and violent scene when 911 emergency responders arrived at Walter Green's Upper West Side penthouse after this Lou Gehrig's Disease victim fell unconscious, his mechanical respirators had failed and he was suffering from a serious respiratory infection. After the family tried to send EMS away, EMS would not leave and, after a confrontation that included foul language, a physical assault and someone barricading the front door with furniture, paramedics took Mr. Green to the hospital over his wife's objection. The City's expert said that Mr. Green could have died had EMS not taken him to the hospital, which successfully treated his pneumonia over a seven-day stay.

This is quite a story. When the Court of Appeals cleared this case for trial in 2006, it reasoned that "the evidence in this case could support a jury finding that [Lieutenant] Giblin perceived Walter [Green] as incompetent because of Walter's extreme physical disability and therefore denied him the right to use the City's evaluation system" for refusals of medical assistance. But after the jury returned a verdict in Mr. Green's favor, Judge Berman wrote, "if ever there was a case which warranted granting a Rule 50(b) motion and reversing a jury determination of liability (and damages), this is that case." At a minimum, Judge Berman ruled, the City is entitled to a new trial because the verdict was against the weight of the evidence.

But Wait a Minute!, the Court of Appeals (Pooler, Katzmann and Preska [D.J.] says. We ruled in 2006 that this set of facts could support a jury verdict, and the trial evidence was not substantially different from the summary judgment record that predicated the favorable 2006 appellate ruling. The panel states, "The only difference in the evidence at trial were new opinions stated by the City’s medical expert, who was not present at the scene, about post-hoc medical justifications for the City’s actions. This objective medical evidence does not speak to the subjective intent inquiry required by the ADA – whether the City denied Walter Green the right to access the City’s services for refusing medical treatment based on discriminatory animus in the form of paternalistic stereotypes." The verdict is thus reinstated, but the trial court is ordered to take up the issue of damages as the Second Circuit agrees that $400,000 is too compensatory damages.

Interesting sidenote to this opinion. First, it's a summary order, a rare format when the Court of Appeals reverses the district court. Summary orders are even rarer when the Court of Appeals reinstates a jury verdict. Even rarer still, this is a summary order with a dissenting opinion (Judge Preska) stating that the district court was entitled to order a new trial. Also unique is how long it took the Court of Appeals to issue the opinion. After oral argument, both sides agreed to post-argument mediation. When that failed in Spring 2009, the Second Circuit got back to work on the case, issuing a relatively brief opinion eight or nine months later.