Good luck solving the "public forum" puzzle

If you're a protester, you go where the people are. The protest means nothing if no one can see it. That's why Lisa Zalaski and an animal rights group went to a public area in City of Bridgeport to protest the Ringling Brothers Circus, which uses elephants against their will. The case highlights the rare issue of when public property is a free-speech zone, known to lawyers as the public forum.

The case is Zalaski v. City of Bridgeport Police Department, decided on July 27. The case starts off with a bang. The Second Circuit (Pooler, McLaughlin and Wesley) writes, "This case presents a conflict between an individual's assertion of her First Amendment right to engage in public protest and the official responsibility to maintain public safety and order." But it ends in a whimper: the case is remanded to the district court to clarify why it granted the City summary judgment on the public forum question.

I cannot emphasize strongly enough how complicated the public forum inquiry is. If you think that public property large enough to accommodate a public assembly automatically constitutes a public forum (which sharply limits when the government can restrict free speech), then take a look at this case, which reminds us that there are different levels of public fora (including designated and limited public fora), each of which affords protesters and police different rights and entitlements. The multi-part legal standard used in solving this riddle is as nuanced and complicated as reading Frank Zappa's sheet music.

To the uninitiated, the plaza outside the arena in this case looks like a public forum. The plaza is a "large, semi-circular, paved area through which the patrons must walk in order to reach the Arena's entrances and attend performances held inside." Anti-circus protests have taken place annually. But it's not clear if this is a public forum, and the law is not clear on this issue in general. While the district court said it's a limited public forum (which gives the City much leeway in regulating protests), the Court of Appeals doesn't think the trial court fully explained itself. For guidance, the Second Circuit highlights two ends of the case law puzzle. In the Hotel Employees case (2002), the Court of Appeals said the concourse outside Lincoln Center is not a public forum (even though it's outside a cultural landmark and can certainly accommodate leafletting). But in the Paulson case (1991), the sidewalks outside Nassau Coliseum (a domed structure with all the charm of a trip to the dentist) is a public forum.

While Judges Pooler and McLaughlin send the case back to the district court to take up this issue again, Judge Wesley writes in dissent that the Court of Appeals can certainly decide this issue on its own, and he would find that the property is a limited public forum and that the plaintiff's First Amendment rights were not violated when the police effected certain physical restrictions on where the protesters could situate themselves.

Officer framed for murdering another officer recovers $1.5 million in damages

There are some police misconduct cases that make you wonder if the Court of Appeals is putting us on. Sure, false arrest and malicious prosecution cases surface from time to time, and juries sometimes overcome their natural biases in favor of the officers to award the victims money under the civil rights laws. But what would you say if I told you that a New York City detective was ordered to pay a fellow officer over a million dollars for maliciously prosecuting him for the murder of another police officer? If the Court of Appeals wanted to make up an outrageous case of official misconduct, it could not do any better than this case.

The case is Manganiello v. City of New York, decided on July 23. An officer, Acosta, was found murdered in a Bronx condominium. Detective Agostini was responsible for the investigation. Agostini must have hated his colleague, Manganiello, whom he blamed for the murder. If you are going to charge a NYC police officer with murdering a fellow officer, you'd better make sure you have the evidence. Agostini did not have the evidence, and the Court of Appeals (Kearse, Cabranes and Eaton [D.J.]) outlines how Agostini went about the investigation.

As Manganiello was near the scene of the murder, Agostini interrogated him and expressed frustration when Manganiello said he didn't do it. Agostini then had Manganiello strip-searched and placed in a cell. Although Manganiello gave Agostini leads as to local gang members who had threatened to shoot Acosta, Agostini did not follow up on this information and instead relied on the inherently questionable allegations of other gang members and thugs who fingered Manganiello in the shooting. Then, after Agostini completed his half-elbowed investigation, the case file on the Acosta murder disappeared. Agostini was responsible for maintaining this file, which may have contained exculpatory information clearing Manganiello, and he gave conflicting testimony about how the file was lost. A criminal court jury found Manganiello not guilty of murder. A federal jury then found Agostini liable for malicious prosecution, awarding Manganiello $1.5 million in damages, including punitives. The Second Circuit sustains the verdict, damages and all.

Malicious prosecution cases are hard to win. You have to show that the arresting officer initiated prosecution with malice. Not negligence, not mistake, but malice. Malice is the grand-daddy of the mens rea totem pole, difficult to prove but devastating when proven. You also have to show the officer had no probable cause to make the arrest. As Judge Kearse notes, the jury had ample basis to find that Agostini had engaged in police misconduct in the course of his myopic focus on Manganiello by, for example, relying on bogus information by unreliable "witnesses" and seemingly going out of his way to nail Manganiello the wall on this one. The Second Circuit sums it up as follows:

Looking at the evidence as a whole, the jury could permissibly infer that Agostini was determined simply to make a case against Manganiello, and that in order to do so Agostini refrained from making inquiry into other possible suspects, ignored evidence that was inconsistent with his belief that Manganiello was guilty, declined to inform the ADA of, or to document, any exculpatory evidence or inconsistencies in the statements of witnesses who agreed to inculpate Manganiello, secured one statement inculpating Manganiello by agreeing not to disclose the witness's known criminal activities to the proper authorities, and included in some of Agostini's own reports supposedly factual statements adverse to Manganiello that were contradicted by persons having first-hand knowledge of the facts.

Finally, the Second Circuit upholds the large damages award. Manganiello's career was thrown off kilter as a result of these charges and, although he had no prior psychiatric problems, Agostini's malicious prosecution caused him to suffer post-traumatic stress, major depression and a chemical imbalance that permanently disabled him. His past and future lost earnings amounted to approximately $1.2 million, and the pain and suffering award, in the amount of $116,600, is in line with comparable cases.

Section 1983 does not solve all of our problems

I guess you could say that Section 1983 is the one federal law that codifies our democratic society. It lets you enforce constitutional rights in federal court, and it also provides a remedy when the government violates certain federal laws. See how I mentioned "certain" federal laws? That's because Section 1983 does not solve all of our problems.

The case is Torraco v. Port Authority, decided on June 30. I was not aware of this, but 18 U.S.C. 926A lets you bring unloaded guns onto airplanes (in certain instances). In particular, the Court of Appeals (Pooler, Parker and Wesley) says, this "statute ... allows individuals to transport firearms from one state in which they are legal, through another state in which they are illegal, to a third state in which they are legal, provided that several conditions are met, without incurring criminal liability under local gun laws."

Several plaintiffs were arrested for bringing unloaded firearms in checked baggage through various New York airports. They were charged under state law, but those charges were dropped. They now sue state officials under Section 1983, which says that anyone who deprives a person of his rights under the Constitution or federal law is liable for damages, including punitives. Although Section 1983 does not explicitly say so, the courts have interpreted this expansive law to only allow you to enforce some, but not all, federal laws through it. That means that the violation of some federal laws does not entitle you to any remedies.

This gun law is not among the laws that you can enforce through Section 1983. The plaintiffs have no remedy. The legal standard for answering this question is found in Blessing v. Freestone, 520 U.S. 329 (1997), which says, among other things, that a federal law can be enforced through Section 1983 if "the right assertedly protected by the statute is not so vague and ambiguous that its enforcement would strain judicial competence." This gun law fails that test. The law is vague, for instance, in that it provides the police without any guidance to ascertain whether the air traveler violated the gun transport law. As the law is difficult to apply, under Blessing, the Court says that civil liability under the statute may chill its enforcement and we presume that Congress did not intend it to predicate any Section 1983 lawsuits.

The Second Circuit lays down the gauntlet

The First Amendment was written in the 18th Century, when printing presses and pamphlets were all we had to communicate ideas. By the 1970s, when the Supreme Court took up a free speech challenge to the FCC's indecency rules, it held in the George Carlin case that the government had more leeway to regulate the content of offensive speech when it's broadcast on radio or television. The Second Circuit is now suggesting that the Carlin case, FCC v. Pacifica Foundation, 438 U.S. 726 (1978) is outdated.

The case is Fox Television v. FCC, decided on July 13. This case holds that the FCC's indecency rules violate the First Amendment because that are too vague and therefore chill free speech. A summary of that ruling is here. While the Second Circuit's holding on the constitutionality of the FCC's indecency standards is important, the Court provides in dicta an interesting aside about the continued plausibility of the Pacifica ruling.

Judge Pooler notes that, while "indecent speech is fully protected by the First Amendment," the Supreme Court held in 1969 that "broadcast radio and television ... have always occupied a unique position when it comes to First Amendment protection." This unique position allows the government some leeway to regulate indecent speech broadcast on radio and TV because of "the twin pillars of pervasiveness and accessibility to children."

It appears that the television networks in this case asked the Court of Appeals to revise the legal standards governing the regulation of indecent speech on radio and TV. The Court of Appeals (Pooler, Hall and Leval) doesn't take the bait, but not before it outlines why the networks may have a point. Judge Pooler writes:

We face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did YouTube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in the lives of all Americans.” Pacifica, 438 U.S. at 748. The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs. As the FCC itself acknowledges, “[c]hildren today live in a media environment that is dramatically different from the one in which their parents and grandparents grew up decades ago.”

Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. Every television, 13 inches or larger, sold in the United States since January 2000 contains a V-chip, which allows parents to block programs based on a standardized rating system. Moreover, since June 11, 2009, when the United States made the transition to digital television, anyone using a digital converter box also has access to a V-chip. In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. In fact, the existence of technology that allowed for household-by-household blocking of “unwanted” cable channels was one of the principle distinctions between cable television and broadcast media drawn by the Supreme Court in [U.S. v. Playboy Entertainment Group, 529 U.S. 803 (2000).

In other words, the rationale behind giving the government more authority to regulate TV and radio speech (as opposed to speech in newspapers and books) no longer holds true. If the Supreme Court thought our media was pervasive in 1978, with only a few TV and radio stations to choose from, imagine what that Court would think of the Internet and zillions of cable channels that exponentially increases media choices. In addition, new technologies allow parents to shield children from the sort of filthy content that jumped out at you from the radio unanticipated in the 1970s. After giving this issue much thought, the Court of Appeals says:

We can think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available.

So why doesn't the Court of Appeals just articulate a new legal standard that is more consistent with modern times? It can't. Well-settled law holds that the Court of Appeals cannot overrule the Supreme Court. In this case, the Second Circuit throws down the gauntlet. The old rules reflect yesterday's values. We are forging ahead!

Connecticut campaign finance law gets mixed First Amendment verdict

Connecticut has had its share of corrupt politicians. The state tried to regulate campaigns by enacting a campaign finance law that dictates who gets how much public money to wage campaigns. The Second Circuit holds that some of these provisions violate the First Amendment and are therefore unconstitutional.

The case is Green Party of Connecticut v. Garfield, decided on July 13. Under the Connecticut law, major parties get public funding. Major parties are defined as parties that got 20 percent of the gubernatorial vote in the last election or whose membership comprises at least 20 percent of the state's registered voters. Minor parties qualify for full public funding if the candidate got 20 percent of the vote in the same race in the last election. Under a formula devised by the State Legislature, minor party candidates who got fewer votes (10 to 20 percent) in the last election receive less than full public funding. The same percentages also apply if minor party candidates can get enough petitions for the election in question.

The law also has "trigger provisions," which means that candidates get additional public funding if their opponents have both opted-out of the public financing system and receive contributions or spend more than an amount equal to the participating (and presumably less well-financed) candidate.

The legal standards governing cases like this are quite complicated. When the Supreme Court hands down a campaign finance decision in a First Amendment case, the rulings are usually so long that no one except for law professors (and a small sliver of the rest of the population) actually reads them in full. Here is what the Court of Appeals did in this case in a nutshell:

1. The State is allowed to condition public money on a showing of public support on the basis of prior vote totals. It may also, consistent with the First Amendment, set the single-election criterion at such percentages as 20 percent of the vote for full funding and 10 percent for one-third funding. The Court of Appeals' intuition is that these percentages are too high for minor parties to qualify, but the evidence at trial shows that this scheme is not "so high as to shut-out minor-party candidates who enjoy public support." It is also legal for the state to require minor party candidates to show statewide support, as hard as that may be in some instances.

2. But the trigger provisions are unconstitutional in light of the Supreme Court's recent decision, Davis v. Federal Election Commission, 128 S.Ct. 2759 (2008), an unusual decision that should have gotten more attention, holding that the "millionaire's amendment" enacted by Congress was unconstitutional because it allowed less-wealthy candidates to receive additional public funding if rich candidates spent too much money on their own campaigns. The millionaire's amendment violated the First Amendment because it essentially penalized candidates who spent robustly on their campaigns, allowing poorer candidates to receive a special benefit in the form of additional campaign finance money. Davis essentially looks out for the speech rights of the wealthiest candidates, further proof perhaps that money can buy you not only love but certain First Amendment protections. Anyway, the Connecticut law resembles the millionaire's amendment. As the Roberts Court took the millionaire's amendment out with the trash a few years ago, the Court of Appeals does the same with the comparable law in Connecticut.

Pro se plaintiff wins discrimination appeal against Post Office

The word of the year for plaintiff's lawyers these days is Iqbal, as in Ashcroft v. Iqbal, 129 S.Ct. 1949 (2009), a Supreme Court ruling that requires plaintiffs to file "plausible" complaints and dispenses with the more lenient "notice pleading" under the Federal Rules of Civil Procedure. But Iqbal is still a new case, and the Court of Appeals is still trying to figure it all out.

The case is DiPetto v. United States Postal Service, a summary order initially decided on May 12 before the Court of Appeals pulled the decision and reissued it on July 12. DiPetto is suing pro se for employment discrimination. Pro se plaintiffs get the benefit of the doubt when courts are reviewing the sufficiency of their complaints. In the Second Circuit, the standard is that "dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases." More broadly for the rest of us, heightened pleading requirements are not appropriate for civil rights cases alleging racial discrimination.

This cloudy mix of competing legal standards (Iqbal plausibility against solicitude for pro se litigants) compels the Court of Appeals (Miner, Walker and Lynch) to reinstate DiPetto's lawsuit. This is a rare victory in the Second Circuit for a pro se appellant. DePetto wins the appeal because "Appellant stated he was Caucasian, described specific discriminatory actions that had been taken against him by his supervisor, and alleged that he was treated differently, inter alia, on the basis of his race." In addition, the complaint provides relevant details, including the allegation that, "because he was Caucasian, he received less overtime and work breaks than other employees, and that sick and annual leave policies were applied differently to him." As this is "fair notice" to defendant about the basis for the discrimination claim, the complaint is good enough to be reinstated.

2d Circuit rejects Title VII disparate treatment claim

One way to prove employment discrimination is with evidence that you were fired for doing something that others got away with. Disparate treatment allows the jury to find you were terminated under circumstances creating an inference of discrimination.

The case is Ruiz v. County of Rockland, decided on June 25. It's been a while since the Second Circuit parsed out a discrimination claim alleging that the plaintiff was treated differently than co-workers. While this particular case is fact-intensive, we ought to sit up and take notice how the Second Circuit (Pooler, Calabresi and Kahn [D.J.]) handles this set of issues. It could be quite some time before we are treated to this kind of extended analysis.

Ruiz is an Hispanic male who worked for the Rockland County Department of Mental Health as a low-level supervisor. The case is tricky because Ruiz was charged with sexual harassment and he lodged cross-accusations against his colleagues, all of them identified by their initials because of the sensitive allegations. You need a scorecard to keep track of all the allegations.

In the end, Ruiz was found guilty after a Section 75 disciplinary hearing of failure to report his knowledge that co-workers had engaged in inappropriate sexual behavior with patients. He was exonerated on a rape charge lodged by a patient. The hearing officer did find that, while he was guilty of not reporting certain misconduct, that misconduct was known throughout the facility and Ruiz was singled out for this. As Ruiz was singled out, the hearing officer recommended against terminating Ruiz's employment. But the Commissioner, who has final say on discipline, overruled the hearing officer's finding that sexual misconduct was known throughout the facility and that Ruiz was singled out. The Commissioner fired Ruiz.

Ruiz argues that he treated differently than non-Hispanic employees who engaged in comparable sex-related misconduct. The Court of Appeals disagrees. You have to show that the co-workers were "similarly-situated in all material respects." This loose standard is difficult to apply, since few co-workers are exactly alike in job duties and misconduct. In this case, one comparator doesn't count because she resigned after being accused of sexual misconduct. Another comparator -- who, like Ruiz, allegedly knew about the misconduct but was not disciplined -- didn't admit to any misconduct to which Ruiz did admit, and this comparator did not have Ruiz's credibility problems at the Section 75 hearing. Ruiz also knew about more misconduct than comparator No. 2 did. A third comparator had limited knowledge of misconduct and she did, unlike Ruiz, report that misconduct between staff and patients.

Ruiz is also distinguishable from the others because he was accused to sexual harassment and rape. While he was exonerated at the Section 75 hearing over these allegations, "the fact that Mr. Ruiz had been accused by multiple patients and co-workers of inappropriate and unlawful behavior clearly distinguishes Mr. Ruiz from other employees who were not the subject of such accusations. While Mr. Ruiz may be able to show that the real reason he was terminated was because Commissioner Walsh-Tozer believed these other allegations to be true, he has provided no evidence to suggest that she was motivated by Mr. Ruiz’s race and national origin."

FCC's indecency standards struck down as unconstitutional

The Court of Appeals has struck down as unconstitutional the FCC's broadcast standards intended to get "fleeting expletives" and other foul-mouthed utterances off the air. The Court holds that the guidelines are too vague and have the effect of chilling First Amendment speech.

The case is Fox Television Stations v. FCC, decided on July 13. The FCC has been trying to police vulgar language on television for decades, most famously in the 1970s, when it took George Carlin's 12-minute "seven dirty words" monologue all the way to the Supreme Court, which held in 1978 that the government had greater leeway to regulate speech on radio and television since these mediums were easily accessible to children.

It was a different world in the 1970s, when cable television was in its infancy and there was no Internet. We only had a few channels back then, and it was much easier for children to watch objectionable programming. Despite the explosion of new media, though, over the last 10 years, the FCC stepped up enforcement of expletives on radio and television after celebrities like Bono and Cher (among others) proved themselves incapable of uttering even a public statement without using obscene language. These were called "fleeting expletives" in that the broadcasters did not know this language was coming and therefore could not prevent them. That did not stop the FCC from treating these incidents as violations of government policy, which could cost broadcasters thousands of dollars in fines.

Adopted in 2001, the FCC's indecency policy punishes broadcasters for language that describes or depicts sexual or excretory organs or activities. It also prohibits "patently offensive" language as measured by "community standards." The Court of Appeals (Pooler, Leval and Hall) strikes down these standards as too vague to place broadcasters on proper notice of when they are going to be fined. In illustrating why this is so, the Second Circuit provides examples that necessarily require the Court to use foul language (like "fuck" and "shit") in fleshing out the opinion. In fact, I have never seen a Second Circuit opinion with so much potty language.

The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. The Court observes, "[t]hus, the word 'bullshit' is indecent because it is 'vulgar, graphic and explicit' while the words 'dickhead' was not indecent because it was 'not sufficiently vulgar, explicit, or graphic.' This hardly gives broadcasters notice of how the Commission will apply the factors in the future."

While the FCC says it needs a flexible standard because broadcasters will try to subvert the censorship laws, that argument only further shows how vague the standards really are. The Court of Appeals notes that "If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so."

The FCC does exempt expletives if they are essential to a particular program or part of a "bona fide" news broadcast. In light of the FCC's inconsistent application of this test (which protects foul language in moves like Saving Private Ryan but not gratuitous cursing during the Golden Globe Awards), this cannot work, the Court of Appeals says. "There is little rhyme or reason to these decisions and broadcasters are left to guess whether an expletive will be deemed 'integral' to a program or whether the FCC will consider a particular broadcast a 'bona fide news interview.'” Broadcasters are going to have to guess whether certain obscenities run afoul of the FCC's decency rules. The First Amendment cannot tolerate this. As the Second Circuit notes:

[W]hen Judge Leval asked during oral argument if a program about the dangers of pre-marital sex designed for teenagers would be permitted, the most that the FCC’s lawyer could say was “I suspect it would.” With millions of dollars and core First Amendment values at stake, “I suspect” is simply not good enough.

The zinger here is that there is evidence that the vague broadcast standards have, in fact, chilled free speech. There is no greater threat to free speech than evidence that vague rules will make broadcast and radio executives think twice about certain programming. For example, under the FCC's revised speech standards, some CBS affiliates were afraid to re-broadcast a documentary on 9/11, which included foul language from real footage of the World Trade Center attack. A radio station canceled a planned reading of a Tom Wolfe novel because it contained adult language. Bona-fide news programs are also being chilled, particularly political debates involving a politician who had previously used expletives on the air.

Pharmaceutical sales reps are entitled to overtime

In a ruling that will affect how countless pharmaceutical sales representatives will be compensated, the Court of Appeals has ruled that they are entitled to overtime pay for their relentless efforts to sweet-talk doctors into prescribing the little pills and drops that make us feel better, physically and mentally.

The case is In re Novartis Wage and Hour Litigation, decided on July 6. As there is a lot of money at stake, this case attracted amicus briefs from some heavy hitters around the country. If the average sales representative makes $91,000 including bonuses, imagine what they can make with overtime caused by the long hours necessitated by lobbying doctors to prescribe their products.

The district court said the plaintiffs (a class of 2,500 people) were not entitled to overtime because they are outside sales employees and therefore exempt from the overtime rules. The Court of Appeals (Kearse, Hall and Rakoff [D.J.]), reverses. Outside salespeople are exempt from overtime requirements if their primary duties involve making sales or obtaining orders. Under the Fair Labor Standards Act, these workers are not exempt, and are therefore entitled to overtime, if their promotional efforts are designed to stimulate sales that will be made by someone else. Under the regulations intended to clarify the FLSA, and the Department of Labor's interpretation of them, the pharmaceutical sales representatives are entitled to overtime. Here is the crux of the Second Circuit's opinion:

[A] person who merely promotes a product that will be sold by another person does not, in any sense intended by the regulations, make the sale. The position taken by the Secretary [of Labor] on this appeal is that when an employee promotes to a physician a pharmaceutical that may thereafter be purchased by a patient from a pharmacy if the physician -- who cannot lawfully give a binding commitment to do so -- prescribes it, the employee does not in any sense make the sale. Thus, the interpretation of the regulations given by the Secretary in her position as amicus on this appeal is entirely consistent with the regulations.

To understand this ruling, read the first few pages of the decision, which outlines how sales representatives actually do their work. As noted, they cannot personally sell the drugs, and they are not allowed to secure binding promises from doctors to sell them, either. The sales representatives do not use much independent judgment in promoting the drugs. Instead, they hound the doctors and try to talk them into prescribing the drugs and provide them with promotional materials that play up the drugs' benefits. The sales representatives are trained by the pharmaceutical companies in how to lobby the doctors, how to deal with different personality types and how to leave behind free samples in the hopes that the doctors will loyally prescribe that brand which, in turn, gives the sales reps a higher bonus when management determines which representatives are the most persuasive. While the representatives have to ask the doctors for a commitment to prescribe their drugs, those promises are not binding, as the doctor's loyalty is to her patients, not the drug companies. Indeed, "one Rep stated that a physician might answer affirmatively just to get the Rep out the door." The reps are also closely monitored by the drug companies in the form of "ride-alongs." All very interesting to read, shedding light on how the multi-billion industry makes its money.

When ignorance of the law IS an excuse

This gets my vote for the strangest Second Circuit case of the year. The Court of Appeals holds that a police officer who arrested someone for violating a law that was declared unconstitutional in 1983 is entitled to qualified immunity and therefore cannot be sued.

The case is Amore v. Novarro, decided on June 22. In a public park in Ithaca, Amore approached Novarro, an undercover officer, offering to perform a sexual act. Novarro arrested Amore for violating a provision of the New York Penal Law, Section 240.35(3), which prohibits loitering for purposes of soliciting "deviate" sexual behavior. There was a problem with this arrest: 18 years earlier, the New York Court of Appeals struck down this law as unconstitutional, in People v. Uplinger, 58 N.Y. 936 (1983). Because of this, the criminal charge against Amore was dropped, which gives Amore a ticket to the federal courthouse.

Police officers are immune from lawsuits if the arrest was objectively reasonable, even if in hindsight the arrest was unconstitutional. We call it qualified immunity. But surely Novarro is not entitled to any immunity here, right? Where does he get off arresting someone under a law that the state's highest court struck down as unconstitutional nearly 20 years earlier? The district court in this case denied Novarro's motion to dismiss. The Court of Appeals (Sack, Parker and Goldberg) rules in Novarro's favor, granting him qualified immunity.

Here is what happened. Like all police officers, Novarro was trained at the police academy. He received a copy of the Penal Law to study and learn. That copy is published by Gould Publications in the form of a looseleaf book that allows you to insert updates and remove laws repealed by the State Legislature. For some reason, that law literally remains on the books; the State Legislature has not formally repealed it. As far as Novarro was concerned, that provision of the Penal Law was still good and Amore was breaking the law in offering to perform a sexual act.

For the rest of us, ignorance of the law is no excuse. But in this case, the Court of Appeals grants Novarro qualified immunity for the improper arrest, reasoning,

It is undisputed that: Novarro did not know that section 240.35(3) was unconstitutional; he had not received instruction or information on the constitutionality of the statute; and he was relying on an accurate, if unannotated, copy of the New York Penal Law when he arrested Amore. We cannot say that Novarro's arrest of Amore was objectively unreasonable under these circumstances, where he had every reason to believe that the statute of arrest was valid and in effect. Amore has not pointed us to any cases that compel a contrary conclusion, nor are we ourselves aware of one.

Amore also sues the City of Ithaca for failure to train its officers and allowing them to make arrests under a statute that declared unconstitutional. Those claims are not the subject of this appeal. Maybe Amore will win his case against the City, but Novarro gets a free pass.

A few observations. First, this is the second case in a week in which the Court of Appeals makes reference to the continued enforcement of provisions of the Penal Law that were declared unconstitutional years ago. In Brown v. Kelly, the Second Circuit took up a class action involving New York City's enforcement of an anti-panhandling law that the Second Circuit had struck down in 1993. What's going on with these arrests under laws that were long ago struck down? Is the City of New York a lawless entity?

Second, if qualified immunity means that officers are off the hook for objectively reasonable arrests, wouldn't immunity be denied to Novarro in this case in light of the well-known 2003 Supreme Court ruling that allows for consensual gay and lesbian sexual activity, Lawrence v. Texas, 539 U.S. 558 (2003)? And if the concern is that Amore was a loiterer asking Novarro for sex in a public park, what about the Supreme Court rulings that struck down anti-public loitering statutes, including City of Chicago v. Morales, 527 U.S. 41 (1999) and Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)?

Did you know that NYC still enforces an anti-loitering law that was struck down nearly 20 years ago?

In 1993, the Second Circuit ruled in Loper v. City of New York Police Department that New York's anti-loitering law was unconstitutional. This law specifically prohibited loitering for purposes of begging. For reasons that I cannot fathom, to this day, New York City continues to enforce that very law. Police departments around the state are also enforcing this law. This prompted the arrestees to bring a class-action suit.

The case is Brown v. Kelly, decided on June 24. The district court may certify a class action if the proposed class is sufficiently numerous, the plaintiffs' claims share similar questions of law and fact, and the claims of the representative parties are typical of those of the entire class. The class representatives must also be able to adequately represent the class. While trial judge Shira Scheindlin certified a statewide class in connection with the continued enforcement of the unconstitutional anti-loitering law, the Court of Appeals reverses, for the most part.

For anyone who does not litigate class actions, this case may raise dry issues. But a footnote would interest anyone who assumes that municipal officials uniformly comply with court orders. You would think that compliance with binding court decisions would be the priority of any civilized society. They take an oath to follow the law, right? But earlier this year, Judge Scheindlin held New York City in contempt of court "for failing to act with reasonable diligence to eliminate enforcement" of the anti-loitering panhandling law. The district court said the city's actions were "offensive to the rule of law" and that city seemed to only act "responsibly and energetically when threatened with sanctions."

Back to the class action issues raised in this appeal. The Second Circuit (Katzmann and Sack) says the class representatives do not adequately represent the statewide class because the interests of the New York City class representatives may conflict with their state counterparts. The city representatives may have to deal with certain defenses unique to their claims against the city, such as whether the city (but not the state) is subject to Monell liability and whether city officials may assert immunity defenses. These issues may dominate the city representatives' attention during litigation to the detriment of the state representatives.

The certified class also fails to satisfy the "typicality" requirement that class members have claims that are typical of the class as a whole. While New York City persisted in its lawless application of a statute that the Second Circuit declared unconstitutional in 1993, there is no evidence that police departments around the state were enforcing this law in equally substantial numbers.

The good news for the class representatives is that the Second Circuit allows the city-side class action to move forward. The plaintiffs in the city class share common legal and factual issues and their claims arise from the same core allegation: that New York City continues to enforce a law that the Court of Appeals struck down nearly 20 years ago.

While you were sleeping, the Supreme Court weakened the Exclusionary Rule

The Exclusionary Rule started out with such promise. Under the "fruit of the poisonous tree" doctrine, evidence illegally seized by the police cannot be used against you in court. But, hey, that was 1920. It's now 2010.

The case is U.S. v. Julius, decided on June 11, 2010. Julius absconded from his parole supervision and was hiding out in his girlfriend's house, where the police showed up without a warrant and found him lounging on the bed with the mattress a little askew. The officer searched around and lifted the suspicious mattress to find an unauthorized gun. The officer admitted at the suppression hearing that "all we were there for was to find Mr. Julius and take him into custody. We had done that. The weapon being found is out of our parameters or out of the scope of what we do."

For those of us who do not practice federal criminal law, this admission sounds like a slam-dunk to suppress the pistol. But not so fast. As it is, parolees who have absconded enjoy fewer privacy rights under the Fourth Amendment. Moreover, a funny thing happened on the way to the suppression hearing. In Herring v. United States, 129 S.Ct. 695 (2009), the Supreme Court said that not all improperly-seized evidence needs to be suppressed. The Second Circuit (Pooler, Hall and Sweet [D.J.]) writes:

Above all else, Herring makes plain that a search that is found to be violative of the Fourth Amendment does not trigger automatic application of the exclusionary rule. That is, application of the exclusionary rule is not a matter of right upon a finding that an improper search has taken place. Rather, “the exclusionary rule is not an individual right and applies only where ... [it serves the purpose of] deterring Fourth Amendment violations in the future.” Id. Further, in light of the costs of letting a guilty defendant go free because of the exclusion of possibly probative, but improperly obtained, evidence from use in his prosecution, a court should order exclusion only after it has satisfied itself that “the benefits of deterrence . . . outweigh the costs."

This means that "technical" Fourth Amendment violations -- where the search is the result of some computer or bookkeeping error -- do not warrant suppression. Courts also have to think about the social costs of suppression, such as "letting guilty and possibly dangerous defendants go free – something that 'offends basic concepts of the criminal justice system.'”

What does all this mean for Julius and his gun? The case is remanded to the district court in Connecticut to sort it all out. Judge Pooler suggests the district court take into account the totality of the circumstances in revisiting suppression, including for example whether the officers legitimately feared for their safety and whether the officers had knowledge that the search was unconstitutional under the Fourth Amendment. Other relevant factors (among many) include whether a child could have accessed the gun and the fact that Julius's girlfriend gave consent to search the place.

School district repels Establishment Clause claim

I think litigators will appreciate this sentiment: it's a big deal when the court dismisses a case under Rule 12(b)(6) on the ground that the Complaint on its face does not state a plausible claim. The court is basically saying that no amount of pre-trial discovery will save the case. This means that all the attorneys' efforts to dress up the claim were not enough. Even if everything the plaintiff says is true, the case cannot proceed because the law says he cannot win the case.

The case is Incantalupo v. Lawrence Union Free School District, a summary order decided June 7. Even the most innovative cases can fail under Rule 12 if the court says you cannot state a claim. Here, plaintiffs argue that the school district adopted a consolidation plan involving the closure of an elementary school but that the plan was adopted by the Orthodox Jews on the school board to minimize taxes and financially starve the school system and therefore promote Orthodox Judaism by making more money available to Orthodox families to afford private school tuition.

That's a hell of a claim, to be sure. But the Court of Appeals (Newman, Straub and Raggi) says the Complaint does not state a plausible claim for relief. True, the Establishment Clause requires the separation of church (or synagogue) and state. But, false, that you can prove this claim here. The government has a secular purpose in setting tax policy, and you cannot prove an Establishment Clause claim by challenging the religious motives of public officials. You can only do so if the policy has a religious purpose.

Religious purpose is relevant, not religious motive. The Supreme Court said this in Board of Education v. Mergins, 496 U.S. 226 (1990), which said, "what is relevant is the legislative purpose of the statute, not possibly religious motives of the legislators." Here is how the Second Circuit sizes things up:

Thus, the religious motivation plaintiffs ascribe to the challenged plan cannot, by itself, state a claim under the Establishment Clause. As long as the plan affords any realized tax savings to taxpayers generally and without regard to religion, plaintiffs cannot plausibly allege that either the purpose or the primary effect of the plan is to establish religion. The fact that a large number of Orthodox Jewish taxpayers may freely choose to spend their tax savings from the plan on religious education for their children warrants no different conclusion because the plan itself does nothing to reward or even encourage such a consumption choice. The plan is neutral as among taxpayers of different or no religious beliefs. Finally, plaintiffs fail plausibly to allege that the plan entangles the government with religion.

Title VII retaliation case goes to trial

When an employee files a charge of discrimination with the Equal Employment Opportunity Commission, the EEOC tells the employer that retaliation is illegal. Most employers get the message. Some employers ... don't get the message.

The case is Kaytor v. Electric Boat Corporation, decided on June 29. This case will be cited often for its hostile work environment angle, discussed here. But tucked into the opinion is Kaytor's retaliation claims. One of those claims goes to trial.

First, the bad news for Kaytor. She was fired from her job for insubordination after she avoided meeting with the company doctor who had reason to believe that she was suffering from paranoid ideation. The Second Circuit's summary of that evidence is not pretty. According to the doctor, Kaytor met with him when she began feeling dizzy at work and she made statements suggesting that people were spying and otherwise out to get her. These paranoid thoughts prompted the company to schedule an independent medical examination which Kaytor refused to attend. The Court of Appeals finds that Kaytor's termination for insubordination was legitimate and not pretext for retaliation. This wipes out Kaytor's claim for back pay.

Kaytor prevails on her other, pre-termination retaliation claim. After she complained about the sexual harassment committed by her supervisor, McCarthy, Kaytor was reassigned to work for McCarthy's subordinate and placed in an office with health hazards. She was also given no work to do, stripped of prestigious responsibilities and summoned to meetings that she considered superfluous. Her supervisor constantly yelled at her and she was ostracized.

Even if management had to separate Kaytor from sexual harasser McCarthy, that "does not account for the ensuing treatment of Kaytor or resolve the question of whether other conditions of her employment were so adversely affected as to dissuade complaints of discrimination." This language tracks the Supreme Court's test for resolving Title VII retaliation claims, set forth in Burlington Northern v. White, 548 U.S. 53 (2006). Under Burlington Northern, this kind of post-complaint mistreatment would discourage reasonable employees from speaking out. This retaliation claim therefore goes to trial.