Large menorah on City property does not violate Establishment Clause

A state appellate court has held that the City of Poughkeepsie could place an 18-foot menorah in the downtown business district near a Christmas tree and a display of the Muslim faith. But the court also holds that the City cannot use public money and labor for the nightly menorah lighting.

The case is Chabad of Mid-Hudson Valley v. City of Poughkeepsie, decided by the Appellate Division, Second Department, on August 31. You don't see too many Establishment Clause cases filed in state court, particularly in Dutchess County. These cases are usually brought in federal court.

This Section 1983 action involves the overly complex questions of whether the public display of religious symbols and lights violates the separation of church and state. The City wins on the claim that placing the large menorah on public property violates the First Amendment. Under the Supreme Court's crazy quilt of Establishment Clause legal standards, the plaintiff has to show that the menorah represented an endorsement of religion.

In context, the menorah does not represent such an endorsement because the public sidewalk location is in front of a privately-owned building and also near the Civic Center Plaza, also privately-owned. While the menorah is quite large, "it is set against the 'neutralizing secular background' of the five-story, commercial, and privately owned Barney Building. The City also wins the case because garlands, wreaths and white lights are nearby. Although these decorations go up for the Christmas season, believe it or not, the Supreme Court has held that these things, like Christmas trees, "typify the secular celebration of Christmas." Further negating any inference that the government is endorsing the Jewish holiday is the presence of a display of the Muslim faith in the form of a star and crescent. This is the kind of "big picture" analysis that favors the government in Establishment Clause cases.

But the City loses on a secondary claim. It is not allowed to use public money and employees for the nightly menorah lighting, even if private actors reimburse the City for these expenses. This fosters "the perception of an unconstitutional excessive government entanglement with religion."

Wiretapping in the iPhone age

So this is how people treat each other in the modern age. This case arises from a wills and estates dispute. Various family members, including in-laws, were visiting a dying mother. They met in the kitchen to discuss their different intentions about mom's will. For strategic advantage, someone tape-recorded someone else on an iPhone without his knowledge.

The case is Caro v. Weintraub, decided on August 13. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 makes it illegal to wiretap or record an oral communication for the purpose of committing a crime or a tort. The guy who was taped can sue the taper.

Caro cannot sue family member Weintraub. The Second Circuit (Cabranes, Wesley and Livingston) agrees that Caro is a "party" to the communication under the statute even though others were in the room. But in order to proceed with his case against Weintraub, Caro has to show that the conversation was intercepted "for the purpose of committing any criminal or tortious act." Here's the dilemma for the Second Circuit:

whether Title III requires that the claimant assert that the recording occurred with a separate and independent tortious intent, or whether the necessary tortious intent can be inferred from the act of recording itself. In other words, must a plaintiff plead that the defendant had intent to use the illicit recording to commit a tort beyond the act of recording illicitly or may the defendant merely have the intent to record and that alone is sufficient?

Other Circuits have taken up this issue. They have all held that the defendant must intend to use the illicit recording to commit a tort or a crime beyond the act of recording itself, such as blackmail or some other harmful act. The secret recording itself is not the requisite tort or crime. The Second Circuit adopts that view and therefore holds that Caro cannot sue Weintraub. While Caro argues that the independent tort was the violation of his privacy rights under Connecticut law, unfortunately for Caro, state privacy law does not reach that far. The closest privacy interest that Caro might assert is the "invasion of privacy by intrusion upon the seclusion of another." But Connecticut law recognizes no such right. Caro cannot sue Weintraub under Title III.

Due process cases are not fun anymore

Due process claims are not what they used to be. Back in the 1970s, a very different Supreme Court was breathing life into the due process clause with new rulings that clarified when and how the government could fairly take away your property and liberty interests. People called it the due process revolution. But it's not 1973 anymore.

The case is Chase Group Alliance LLC v. City of New York, decided on September 14. Here is the problem with due process cases. Due process is all about the right to be heard before the government takes your property or liberty interest. But few lawsuits are allowed to proceed under the due process clause because there is usually a built-in mechanism for you to be heard when you're about to lose the property interest. In other words, the due process clause today is enforced through laws and regulations that the government has to follow before it takes your property. The lawsuit is often dismissed because, by that point, you already had your due process. The lawsuit is redundant.

This case shows us how it works. The plaintiff owns properties in New York City. The tenants complained to the city about housing code violations. The City Housing Court has various procedures to follow. Among other things, an administrator is assigned to oversee the dispute, and he has authority to collect and use rents to remedy the code violations by, for example, ordering supplies and labor. The administrator can also take out a loan for this work, and that loan would place a lien on the property. This is where the plaintiff objected under the due process clause. The landlords claim that the administrator deprived them of their property interest without due process when he took out a loan in excess of $700,000, all of which the City deemed as a lien against the property. The landlords sued in federal court, claiming this lien violated due process.

The case cannot get out of the starting gate. It is dismissed under Rule 12(b)(6). The administrator cannot take out those loans and place the lien on the property without a state-court order. That court order cannot issue without notice to the landlord. Due process is nothing more than notice and an opportunity to be heard before your property is taken away. The landlords got due process long before the lawsuit was filed. They got due process when the state court issued the procedure that allowed the landlords an opportunity to be heard. As the Court of Appeals (Winter, Walker and Pooler) sums up, "It is hard to conceive of a remedy more attuned to appellants' claim than a court order preventing the imposition of a lien without a notice, hearing, and court approval. Indeed, such an order is much of the relief they seek in the present action. The Housing Court order, therefore, provided all the process that was constitutionally due at pertinent times." So plaintiffs got their due process, built into the initial lien process. That means they cannot sue under Section 1983 for relief in federal court. This is why due process cases aren't fun anymore.

Even criminals have constitutional rights

When a federal judge in Albany gave Warren Green supervised release that prohibited him from wearing street gang colors, he sued under the due process clause because that requirement was vague. He wins the case.

The case is U.S. v. Green, decided on August 13. The defendant is no angel, that's for sure. He went to jail as a cocaine dealer and was then caught in jail with drugs. He was given an additional sentence and then supervised release that said he could not associate with any street gangs or wear certain colors. Here's the actual court order: "The defendant shall not associate with any member or associate of the Bloods street gang, or any other criminal street gang, in person by mail (including email), or by telephone. this shall include the wearing of colors, insignia, or obtaining tattoos or burn marks (including branding and scars) relative to these gangs."

Even criminals have rights. Who knows where the twists and turns of constitutional doctrine will take us? The Constitution is complex, with nuances that are sometimes counterintuitive. You could argue that somewhere along the line we took a wrong turn at Alberquerque, so that some inmates have more constitutional rights than the police officers who arrested them. That's a function of the many legal tests governing the First Amendment, but the inmate/police officer paradox is another story.

It was legal for the district court to prohibit Green from associating with street gangs. But the restrictions against certain colors, tattoos, etc., are too vague to satisfy the due process clause, which requires precise clarity to ensure that the defendant is not tripped up accidently. The Second Circuit (Pooler, Katzmann and Livingston) says:

The range of possible gang colors is vast and indeterminate. For example, the L.A. Police Department’s explanation of gang colors and clothing includes “white T-shirts,” “blue or black or a combination of the two,” red, green, black, brown and purple. ... Eliminating such a broad swath of clothing colors would make his daily choice of dress fraught with potential illegality. People of ordinary intelligence would be unable to confidently comply with this condition.

UConn gadfly has no free speech claim

The Court of Appeals has dismissed a First Amendment claim filed by a high-ranking public employee who spoke out against his public university's policies, holding that his employer's interest in efficient management outweighs the plaintiff's right to speak out on matters of public concern.

The case is Faghri v. University of Connecticut, decided on September 17. Faghri was Dean of the School of Engineering. He became an outspoken critic of many of the university's policies, and the Second Circuit (Leval, Hall and Murtha [D.J.]) give us the laundry list. For example, he publicly objected to the university's plans to establish a regional campus in Dubai, and he opposed plans to close out the university's School of Family Studies and other programs. He also accused the university of mismanaging funds. Six categories of public objections in all. Faghri was a gadfly. The college probably thought he was a pain in the ass. It made him resign his deanship, but he retained his teaching position.

In 1968, the Supreme Court held in Pickering v. Board of Education that public employers can discipline subordinates who speak out on matters of public concern if the speech in some way disrupted workplace or governmental efficiency. We call this Pickering balancing. Faghri falls victim to Pickering balancing. The Court of Appeals rules that "because the deanship of the School of Engineering is an executive, policymaking position, the management of the university was entitled to have such a position occupied by one who voiced support for, or at least did not voice opposition to, the university's policies. It was therefore entitled to remove Faghri from that position for publicly opposing the university policies." In other words, while the man on the street can say these things, and Faghri can even say these things in his capacity as professor without fear of retribution, his managerial position restricts what he can say under Pickering.

This is not the first time the Second Circuit has rejected speech claims by high-ranking public employees in this context, but it's been a while since we saw a case like this. The mid-1990s saw a few such cases, including McEvoy v. Spencer, 124 F.3d 92 (2d Cir. 1997), and Faghri's case ties this doctrine together in a fairly bright-line way. Managerial employees in the public sector had better get with the program and put a lid on it if they want to avoid discipline. Their free speech rights rest on a very thin reed at this point.

Maybe you do have a right to own a chuka stick

More than a year ago, the Second Circuit rejected the argument that the Second Amendment affords you the right to own a chuka stick. In summarizing that decision, I headlined the blog post, "You have no right to own a chuka stick." That was before the Supreme Court breathed life into the Second Amendment.

The case is Maloney v. Cuomo, decided on August 13 by summary order. As I wrote in January 2009, "A chuka stick (also known as a nunchakus) is a crude weapon that 'consist[s] of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person by striking or choking. At least that's how the New York Penal Law defines it." The Court of Appeals rejected Maloney's case because, at the time, the Second Amendment did not apply against the States, only the Federal government.

In McDonald v. Chicago, the Supreme Court ruled in June 2010 that the Second Amendment does apply to the States. Maloney had the foresight to file a petition for Supreme Court review after he lost in the Second Circuit. When the Supreme Court issued its ruling in McDonald, Maloney rode that wave. The Supreme Court granted Maloney's petition for the purposes of immediately sending it back to the Second Circuit. The Court of Appeals now sends it to the trial court without analysis. So maybe we really do have a right to own a chuka stick.

We trust the jury on "joint employer" question

It's been said that you can only have one master. This means you have only one employer. But that's not really true. Under the labor laws, you can sue joint employers that are not bound by any official relationship so long as, among other things, the second company also controls your labor. This why many plaintiffs suing for minimum wage and overtime violations name more than one employer as defendants. The more the merrier.

The case is Zheng v. Liberty Apparel Company, decided on August 10. The case reaches the Court of Appeals because 25 Chinese garment workers prevailed at trial in alleging that their actual employer -- Lai Huen Yam -- and a joint employer -- Liberty Apparel -- basically ripped them off and denied them proper compensation. Liberty delivered partially-finished clothes to Yam's factory in Chinatown, and plaintiffs would finish the clothes by sewing the fabrics together and adding buttons, labels, cuffs and hems. The Liberty company regularly sent quality control people over to Yam's factory to supervise plaintiff's work. So, while Yam was technically plaintiff's official employer, it was as if they also worked for Liberty.

Liberty Apparel claims on appeal that the jury should not have decided whether Liberty was a joint employer, and that only the trial court should have made that decision. This is actually a mixed question of law and fact, as we apply the legal standard to a particular set of facts. Having lost at trial, this point was really one of Liberty's last non-frivolous arguments before they have to pay up in this protracted litigation. The Second Circuit (Jacobs, Parker and Hall) trusts the jury on these issues and affirms the verdict:

FLSA claims typically involve complex mixed questions of fact and law ... The jury’s role was to apply the facts bearing on the multi-factor joint employment inquiry to the legal definition of joint employer, as that term had been (properly) defined by the district court in the jury charge. “[M]ixed questions [of law and fact] are ‘especially well-suited for jury determination ...’”

While Liberty argued that the trial court should have given the jury a special verdict form "so that the jury could detail its factual findings regarding the various joint employment factors, and so that the district court could then have applied those findings to make the final determination as to joint employment," that would "distort" the jury's role of applying facts to law and, in any event, "appellate courts rarely--if ever--vacate for failure to use a special verdict form."

Koufax curveball doesn't quite strike out litigious inmate

If you want a glimpse of what might happen if the Republicans gain control of Congress this November, take a look at the Prison Litigation Reform Act, a law passed in 1995, the last time the Republican Party swept into Washington. There is a lot of work to do when the government turns over, but there is always time to push around inmates, especially litigious ones.

The case is Chavis v. Chappius, decided on August 17. The PLRA limited how and when inmates could sue their jailers. Among other things, it contains a three-strikes-you're-out provision that says that if inmates file three frivolous lawsuits (or even cases that technically fail to state a claim), they can no longer file any cases in forma pauperis, which allows indigent inmates to avoid paying the filing fee.

Chavis filed his share of frivolous lawsuits. He again brought suit in 2006 alleging that prison guards physically injured him and denied him medical treatment for hepatitis B. The question is how to count prior failed lawsuits as strikes. If Chavis filed three frivolous actions, then he has to pay the filing fee for this case. If he's too poor to pay the fee, then it's tough luck.

In this case, the question is whether a frivolous appeal from the dismissal of a frivolous case counts as one strike or two. The PLRA says, in part: "In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions ... brought an action or appeal in a court ... that was dismissed on the grounds that it was frivolous, malicious or fails to state a claim upon which relief may be granted." The Second Circuit summarizes plaintiff's position: "as Chavis argues, does 'action mean the entire course of a lawsuit, leaving 'appeal' to refer solely to cases in which a plaintiff appeals a non-strike district court disposition?"

That one case gives Chavis two strikes. The initial lawsuit and the appeal count as two strikes since both were deemed meritless. The Court of Appeals notes that "every circuit court to address the matter has held the sequential dismissals count as two strikes." The Second Circuit will not buck that trend. As he had prior meritless lawsuits, Chavis strikes out on a Sandy Koufax curveball.

But ... the PLRA has a safety valve if the litigious inmate files a lawsuit alleging the imminent danger of physical injury. Who says Republicans aren't compassionate? Even a three-striker can bring a case under these circumstances. Chavis can. He alleges that prison guards threatened to assault him and one of them visited his cell for "intimidation" reasons. Some 16 officers had threatened Chavis with death on multiple occasions. The Second Circuit tells us, "An allegation of a recent beating, combined with three separate threatening incidents, some of which involved officers who purportedly participated in that beating, is clearly the sort of ongoing pattern of acts that satisfies the imminent danger exception."

Public park speech case goes to trial

Protesters Ousted From Park During Celebration of Israel Must Show Free Speech Violations at Trial

Joel Stashenko
New York Law Journal
September 08, 2010

ALBANY - Kingston police officers did not necessarily violate the constitutional rights of pro-Palestinian protesters by ordering them out of a city-owned park where local Jews were celebrating the 60th anniversary of the formation of Israel, a judge has ruled.

Northern District Judge Lawrence E. Kahn denied summary judgment to the Middle East Crisis Response and 11 of its members for the city's alleged violation of their constitutional free-speech and equal-protection rights during a May 4, 2008 protest.
The case will now go to trial to resolve what the judge said in Middle East Crisis Response v. City of Kingston, 1:08-cv-0690, was an "ambiguity" about the actions and motivations of the police.

Judge Kahn wrote that the First Amendment does not guarantee the right of an individual to express his views at any time or place or in any manner of his own choosing. "Reasonable restrictions" may be placed on protected speech, especially if the restrictions are not based on content and are "narrowly tailored to serve a significant governmental interest," the judge said, quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984).

Here, he said that "There exist issues of material fact as to whether the actions of Defendant officers were motivated by the content of Plaintiffs' speech, as Plaintiffs' argue, or whether the measures were taken in furtherance of public safety," the judge observed.

Based on the preliminary papers, a "reasonable jury" might well find either that the police officers were justified in ordering the Middle East Crisis Response members out of the park to avoid a confrontation, or that they should have allowed the protesters to stay in an area safely removed from the Jewish celebrants, the judge ruled.

"This ambiguity demonstrates an issue of fact as to whether the conduct of Defendant officers was warranted in order to further the City's interest in public safety and order, and whether their actions were narrowly tailored to further this interest," Judge Kahn held.

According to the ruling, members of the Ulster County Jewish Federation had received permission from the city to use Kingston's T.R. Gallo Waterfront Park for the commemoration of the anniversary of Israel's birth. The event, which attracted more than 100 people, was co-sponsored by the city and open to the public.

About a dozen members of Middle East Crisis Response gathered outside the park to leaflet and display signs protesting Israeli and American policies in the Middle East. Some protesters entered the park and ended up in what one police officers calls "heated" discussions with Jews.

When Kingston Sergeant James Maisenhelder arrived, four or five protesters and several of the Jewish celebrants were only a foot apart, appeared to be moving toward each other and were yelling.

At that point, according to Judge Kahn, Sergeant Maisenhelder ordered the protesters to leave and relocated them to a designated "protest area" on a public street outside the park. The sergeant also prohibited the protesters from displaying signs or leafletting.

Judge Kahn noted that the protesters still could get their message out despite the restrictions.

"Plaintiffs … contend that the location was not an ample alternative because their protest was pointless when removed from the context of the celebration," the judge wrote. "Plaintiffs, however, were not protesting the celebration itself, rather they were protesting and advocating political issues in connection with the State of Israel that may or may not have been directly implicated by the celebration."
According to its Web site, the protesters are part of a Woodstock-based group of Hudson Valley residents "joined in support of human rights for Palestinians and an end to the US's aggressive policies in the Middle East."

The group was formed after the Israel-Gaza conflict of 2006.

Judge Kahn rejected a facial challenge the plaintiffs made to Kingston's permit and insurance policies for use of city parks. The plaintiffs failed to show how the policy was used to suppress free speech, Judge Kahn wrote.

He also noted that no permit is needed to use the Gallo Waterfront park.

Judge Kahn also refused to grant summary judgment to the group on its equal protection clause violation claim. The clause is invoked when First Amendment activities are regulated based on their content, but the judge ruled that whether police acted because of the content of the group's political message remains an issue of material fact.

Stephen Bergstein, attorney for the protesters, said in an interview that the participants captured 95 percent of their protest on video.

The video was not mentioned in the judge's ruling.

Among other things, Mr. Bergstein said in an interview, the video shows that there was ample room to relocate the protesters within the park. It also shows Sergeant Maisenhelder saying, "I am the law" when protesters argue that evicting them from the park is against the law, Mr. Bergstein said.

"We go to trial from here," said Mr. Bergstein, of the Bergstein, Ullrich Law Firm of Chester. "We are disappointed that we did not get summary judgment. …We moved for summary judgment because we thought as a matter of law moving the protesters out of the park was a violation of the First Amendment."

Robert S. Cook of Cook, Netter, Cloonan, Kurtz, & Murphy of Kingston represented the city and the police officers.

Mr. Cook said yesterday that while his opponents may well go to trial, he was "pleased" and "satisfied" with the decision from Judge Kahn.
"There are questions of fact, but the judge said that a reasonable jury might find that the officers were acting to maintain peace and order, based on the facts presented him," Mr. Cook said.

The action names as defendants the city of Kingston and four of its policemen: Sergeant Maisenhelder, Officers William Hadsel, Scott Williams and Harry Woltman.
The city did not file a motion for summary judgment on its own behalf.

No in banc review in missing alibi case

The Court of Appeals rarely grants in banc review on appeals. In banc review happens when the entire 10-member (or so) court re-hears an appeal originally decided by a three-judge panel. The only good that comes out of the court's refusal to grant in banc review is the opinions that the individual judges issue in support or in opposition to these denials.

The case is Rosario v. Superintendent Ercole, issued on August 10. As decided by the original three-judge panel, Rosario's original case is summarized here. In this case, Rosario's lawyer in state court did not interview about a dozen alibi witnesses because he erroneously thought that the state court would not pay for his efforts. He was wrong, and Rosario was convicted of murder. The alibi witnesses would have sworn that Rosario was in Florida when the crime was committed. Under the habeas corpus rules, the Second Circuit held in April 2010 that the state court that originally handled the post-conviction challenge did not violate clearly-established constitutional law in finding that the lawyer's performance did not rise to the level of ineffective assistance of counsel.

The sticking point here is the fact that New York courts use a different ineffective assistance standard than the federal courts. While both systems of justice are interpreting the same constitutional guarantee, the state standard is more favorable to criminal defendants than the federal standard. Six judges on the Second Circuit (Wesley, Cabranes, Raggi, Hall, Livingston and Katzmann) think the Court of Appeals does not have to intervene to iron out the standard. As Judge Wesley (a former judge in the state system) writes:

because the state standard could be misapplied to diminish the prejudicial effect of a single error, members of this Court wish to encroach on the province of the state to demand that it reframe its standard for identifying ineffective assistance of counsel to mimic the less protective federal model. I believe such a drastic measure is unnecessary as a matter of law and unwarranted as a matter of comity. As the court’s opinion in this case holds, an attorney error that prejudiced a defendant under the federal standard would necessarily affect the fairness of the process as a whole under the state standard. Thus, to the extent that any state court failed to afford relief for prejudicial error, that oversight would be contrary to both the federal and state standard, and could be dealt with on case by case review.

In dissent from the denial of in banc review, Judge Jacobs writes on behalf of Judges Pooler, Lynch and Chin in stating that the Second Circuit needs to iron out these dual ineffective assistance standards. One reason for this is that "the New York standard allows the gravity of individual [attorney] errors to be discounted indulgently by a broader view of counsel's overall performance ... contrary to [Supreme Court authority."

The best part of Judge Jacobs' dissent is his review of the evidence in this case, taking issue with the finding by the panel in the original appeal that the lawyer's failure to interview alibi witnesses was not enough to grant habeas corpus. No liberal he, Judge Jacobs writes:

although the state court conducted a hearing that included testimony from seven prospective alibi witnesses, I am unimpressed by the finding that they were “for the most part, questionable,” and that the two who testified at trial were the best of the lot. First, if a witness is without flaw, I tend to suspect perjury; second, corroboration matters. As the panel dissent forcefully explains, Rosario was seriously prejudiced by the absence of more alibi witnesses.

Qualified immunity knocks out Jenna's Law challenge

A woman named Choice Scott made bad choices. That's why she went in jail, for armed robbery. But she also got a raw deal. At her sentencing, the trial judge gave her three years in the big house. The judge did not tell Scott that she would also be subject to five years' post-release supervision (PRS), requiring her to comply with certain conditions or she winds up back in jail under the terms of Jenna's Law. Scott learned about this post-release obligation when she was about to leave prison. She violated the terms of PRS and wound up back in jail for another 18 months after a parole-revocation hearing. This PRS was illegal, but it's also legal. Huh?

The case is Scott v. Superintendent Brian Fischer, decided on August 2. In Early v. Murray, 451 F.3d 71 (2d Cir. 2006), the Second Circuit said that administrative imposition of PRS is unconstitutional, and that a defendant therefore cannot be subjected to PRS unless the sentencing court orders that at sentencing. That did not happen for Choice Scott at her sentencing in 1999. Scott's lawsuit says that her subsequent 10-month jail term for violating the terms of PRS was illegal because the PRS itself was unconstitutional. Sounds like a great argument, but Scott loses the case.

Under the rules governing qualified immunity, you cannot sue public officers (including the parole officer in this case) for damages unless they violated clearly-established law at the time your rights were violated. It was not until 2006 that the Court of Appeals said in the Early case that administratively-imposed (as opposed to judicially-imposed at sentencing) PRS is unconstitutional. At first glance, since the parole violation warrant issued in 2002, the law in this area was not clearly-established for another four years. Scott tries to get around this by arguing that the Early decision is based on a U.S. Supreme Court ruling from 1936, Hill v. Wampler, which means that the rules that were violated in Scott's case were clearly-established for nearly 70 years.

This is a creative argument. Wampler says that the only valid terms of a defendant's sentence are the terms imposed by the judge. But Wampler involved a different circumstance than Choice Scott's dilemma in that Wampler involved the non-judicial imposition of a sentence that was ordinarily reserved to the discretion of the sentencing judge that the sentencing judge had not imposed. In Scott's case, the PRS was required by statute. Differences like this may seem trivial to non-lawyers, but they make a world of difference in cases like this.

The real twist involves the interplay between qualified immunity and the standards governing habeas corpus actions. Qualified immunity protects the defendant from litigation if he did not violate clearly-established law. In 1996, Congress decided that habeas corpus actions challenging the decisions of a state criminal court must be denied unless the state court violated clearly-established law. You rarely see any interplay between qualified immunity and habeas corpus standards in the same case. Both qualified immunity and habeas actions involve a determination of whether the law was clearly-established. Although the Second Circuit said in the Early decision (2006) that clearly-established law prohibited defendants like Scott from non-judicially-imposed PRS, Early was a habeas corpus ruling. "Clearly-established" in the habeas corpus context is not quite the same as in the qualified immunity context. As the Second Circuit sums up:

The conclusion, in the course of [a habeas] review, that a legal proposition was "clearly established" for purposes of its application for professional state court judges does not require a conclusion that it was "clearly established" in the qualified immunity context, which governs the conduct of government officials who are likely neither lawyers nor legal scholars.

Ladies' Night is Legal

The Copacabana Night Club in New York City sponsors Ladies' Nights. Many nightclubs do this. It is legal? Let's put it this way: it does not violate the U.S. Constitution.

The case is Hollander v. Copacabana Nightclub, decided on September 1. The Court of Appeals (Pooler, Winter and Mauskopf [D.J]) says that during “Ladies’ Nights,” nightclubs "charge males more for admission than females or give males less time than females to enter the Nightclubs for a reduced price or for free." And what's wrong with this? According to the Second Circuit, "Den Hollander, who was admitted to the Nightclubs under this admission regime, attributes these pernicious 'Ladies’ Nights' to '40 years of lobbying and intimidation, [by] the special interest group called 'Feminism' [which] has succeed in creating a customary practice ... of invidious discrimination of men.” You can tell the Court of Appeals is having fun with this one. It says:

Without action on our part, Den Hollander paints a picture of a bleak future, where “none other than what’s left of the Wall Street Moguls” will be able to afford to attend Nightclubs.

Hollander sues under 42 U.S.C. section 1983, which makes it illegal for "state actors" to violate your civil rights. Section 1983 is the law that enforces the Constitution, which prohibits sex discrimination. The problem for Hollander is that these private nightclubs are not state actors. The state does not own these facilities, and although the state does regulate their liquor licenses, the Supreme Court held many years ago that this connection to the state is not enough to create "state action."

In addition, the reduced admission policies are not "fairly attributable to the state." The Second Circuit has previously held that "it is not enough ... for a
plaintiff to plead state involvement in some activity of the institution alleged to have inflicted injury upon a plaintiff; rather, the plaintiff must allege that the state was involved with the activity that caused the injury giving rise to the action.” However, there is no link between the regulation of an alcohol license and disparate admission prices. The Court of Appeals sums up as follows:

The link Den Hollander suggests is too attenuated to be causal: he argues that the Nightclubs may only charge discriminatory prices because they sell alcohol – without the draw of alcohol, his argument goes, the Nightclubs would not be popular destinations and accordingly, would not be able to charge for admission. Regardless of the veracity of this statement, we cannot agree that the state’s liquor licensing laws have caused the Nightclubs to hold “Ladies’ Nights;” liquor licenses are not directly related to the pricing scheme.