Free-speech do-over dismissed on Pickering balancing

If you follow Second Circuit decisions, you take note of the important ones that affect your area of practice, and you move on with your life, often unaware of what happened after the case was remanded to the district court. Some of these cases become famous in the Second Circuit, but they land with a thud back in the district court, which sometimes gets a second bite at the apple in dismissing it again.

The case is Sousa v. Roque, a summary order decided on February 22. Lawyers who handle public employee First Amendment retaliation cases might know the Sousa case, one of the few First Amendment decisions over the last few years to actually rule in the plaintiff's favor. A few years ago, the Second Circuit said a jury could find that Sousa (who claimed retaliation) spoke on a matter of public concern even if “he was motivated by employment grievances.” This language was good for plaintiffs' lawyers, who often have to deal with that precise argument by municipal defendants on a motion for summary judgment.

But the case did not end, of course. The Second Circuit sent it back to the District of Connecticut with a suggestion: "on remand, the District Court may wish to assume arguendo that Sousa’s statements did touch on ‘a matter of public concern,’ and proceed straight to ‘Pickering balancing.’” In other words, the defendants can still win if the plaintiff spoke on matters of public importance if his speech sufficiently disrupted the workplace to justify the retaliation. That's what the district court did. It re-analyzed the case under Pickering balancing and ruled that the value of Sousa's speech did not outweigh the government's interest in managing an efficient workplace.

Sousa's speech concerned workplace bullying against him. This speech is important, but not Earth-shattering, and despite Sousa's arguments to the contrary, they barely touched on financial mismanagement and public safety. On the other hand, his speech threw the workplace into disarray. The district court reasoned (712 F. Supp. 2d 34 (D. Conn. 2010)):

it is clear that Sousa was highly disruptive to internal operations at DEP towards the end of his tenure there. First, beginning in roughly January 2004, supervising Sousa became a "became a full-time job" for Smith, Sousa's immediate supervisor. Smith testified that, due to the amount of time she was forced to spend responding to correspondence sent by Sousa, she "was not able to do [her] other real job," which involved supervising three other individuals and working on a project of her own. Second, Sousa interfered with the Office of the DEP Commissioner by continuing to send correspondence to that Office despite being informed by a supervisor "not to send draft work product to the Commissioner, or anyone else, until the work was vetted and reviewed by the unit." Third, Sousa made accusations of "mobbing" against members of the Ombudsman's office, and threatened to sue Kaliszewski. Smith filed a written, hostile-work-environment claim at one point, informing Evans that she felt unsafe around Sousa. Fourth, Sousa was extremely uncooperative in scheduling an independent medical evaluation, which the DEP sought in order to determine whether Sousa was medically fit to return to work full time. Sousa failed to attend, or showed up late to, multiple appointments with the doctor who was appointed by the DEP to conduct the medical evaluation.

In balancing the value of Sousa's speech with the government's need for workplace efficiency, the district court on remand ruled that the government satisfied its burden under Pickering, dismissing the case. In cursory analysis, the Court of Appeals agrees, and the case is over.

Prison headscarf rule does not violate First Amendment

You go to jail, they take your picture. That's the rule in New York City. Elizabeth Zargary sued the City over its policy, which "required her to briefly remove a headscarf she wears as part of her religious observance as an Orthodox Jew."

The case is Zargary v. City of New York, a summary order decided on February 1. The trial court held that the policy does not violate the First Amendment. The Second Circuit (Sack, Livingston and Murtha [D.J.]) affirms. Prisons are allowed to restrict First Amendment rights if the restriction is reasonably related to legitimate penological interests. The Supreme Court said this in 1987. This gives prison officials much leeway in running their operations.

Zargary loses the case because the City has a sound basis for requiring her to remove her headscarf so that prison officials can take her picture. The Second Circuit holds that "the policy is reasonably related to the City's unassailable interests in identifying prisoners and maintaining prison and prisoner safety and security." Moreover, there are no real alternatives to the policy, at least there are no "obvious, easy alternatives that could accomplish the same ends at de minimus cost to valid penological interests."

Tattoo you

Here's a case where the guy probably regrets getting that tattoo. The government used it against him in proving that he unlawfully possessed a weapon.

The case is United States v. Greer, decided on February 4. Egged on by a government informant, Greer decided to rob a house. The informant told the police to look out for Greer's car, a Hyundai Sonata. When Greer realized he was being followed, he ran away from the car and hid out in someone's house. Looking in the car, the police found firearms and ammunition. As someone with a felony record, Greer was not allowed to have any of this. The police also saw that the car was rented to Tangela Hudson. One of the detectives saw that Greer had a tattoo that said, "Tangela." Since Greer was not in the car when the police found the unlawful weapons, the tattoo allows the government to link Greer with the car, which contained the weapons.

So what's the problem? Greer says the detective's testimony about Greer's tattoos violates the Fifth Amendment right against self-incrimination. The Court of Appeals (Walker, Cabranes and Koeltl [D.J.]) agrees with Greer that the tattoo is "testimonial" in that it does convey a message. "The government relied on the tattoo not as an identifying physical characteristic but for the content of what was written. The tattoo was therefore testimonial and, because it linked Greer to the ammunition, incriminating." So far, so good for Greer. He wins that battle.

But he loses the war. While the tattoo is testimonial and therefore implicates the Fifth Amendment, the government was able to use it against Greer at trial because the tattoo was not compelled by the government. Remember, the Fifth Amendment prohibits compelled self-incrimination. "No evidence supports Greer's contention on appeal that officers were able to read the tattoo only by applying physical force during his arrest. And [under Supreme Court precedent], even if that were true, it would still not amount to compulsion for Fifth Amendment purposes." Since the tattoo was Greer's idea and not the product of governmental compulsion, the government can use it against him, and the conviction is upheld.

Police violated Fourth Amendment in searching bedroom

The police cannot just enter your house and look around. They need a good reason. Once they're in the house, they can perform a protective search of the premises to ensure the place is safe for them to be there. In this case, the Second Circuit upholds the preclusion of evidence (an illegal gun) because the search violated the Fourth Amendment.

The case is United States v. Hassock, decided on January 28. The police may perform a "protective sweep of a house where entry was made by police pursuant to lawful process." While the Fourth Amendment "is sufficiently flexible to allow officers who have an objectively credible fear of danger to take precautions to protect themselves," the police must "supply specific and articulable facts warranting a reasonably prudent officer to believe that an individual posing a danger is lurking in an area to be swept, we have found lacking an essential element necessary to justify a search under the protective sweep doctrine."

In this case, the police were looking for Hassock, who had a felony record and was therefore not allowed to have a gun. They went to his neighborhood one morning for a "knock and talk," asking neighbors if they knew where he was. The woman who was living in the back bedroom of Hassock's apartment with her boyfriend answered the door and said the police could come in and look around. The police found an illegal gun in the apartment and charged Hassock.

For those of you who do not practice federal criminal law but know that the courts have taken pro-prosecution views on matters like this, the assumption may be that the police can search the apartment in these circumstances. They cannot, at least not in the Second Circuit. As this scholarly decision makes clear, courts around the country have adopted a hodge-podge of legal doctrines governing protective sweeps, and someday the Supreme Court is going to have to fashion a consistent rule. For the time being, know this: the search of Hassock's apartment was illegal because, "although [the police] went to the Hassock apartment with a legitimate purpose -- the questioning and possible arrest of Hassock -- when Hassock did not answer the door, that purpose could not be pursued until Hassock was found. Under these circumstances, the sweep could not be viewed as a reasonable security measure incident to Hassock's interrogation or arrest. Instead, the 'sweep' itself became the purpose for the agents' continued presence on the premises insofar as they thereby searched the location for Hassock."

What about the woman's consent to search the apartment? That does not fly, either. The Second Circuit (Miner, Parker and Raggi) says that "it was not apparent to the [officers] that the young woman who admitted to the apartment was clothed with any authority that would allow her to consent to a search of the premises. Her discussion with the agents was very brief." As there was no authority for the agents to enter Hassock's bedroom (where they found the gun), "the original purpose of the 'knock and talk' thereupon became an illegitimate search for Hassock incident to no other lawful police conduct, which cannot be characterized as a protective sweep."

No privacy violation in NASA employment background checks

The Supreme Court continues to sidestep whether the Constitution recognizes a right to informational privacy, ruling in a case against NASA that even if such a privacy right exists, it was not violated through NASA pre-employment background checks.

The case is National Aeronautics and Space Administration v Nelson, decided on January 19. This was a unanimous decision, and it's easy to see why. The plaintiffs objected to the background check which asks the potential employee about past drug use or treatment. The agency can also seek your personal information from schools, employers and others during the investigation. Justice Alito explains that the Supreme Court has never flat-out recognized a right to informational privacy, though the Court has hinted at it over the years in cases like Whalen v. Roe, 429 U.S. 589 (1977), and Nixon v. Administrator of General Services, 433 U.S. 425 (1977), two cases decided by a very different, moderate Supreme Court. What the current Court would do on a clean slate is anyone's guess, but since the government has a strong interest in checking out the backgrounds of potential employees, any such privacy right gives way to the government's need to "ensur[e] the security of its facilities and in employing a competent, reliable workforce."

The real news here is Justice Scalia's concurrence, with Justice Thomas signing on. Scalia's just about had it up to here with the Supreme Court's assumption that the Constitution recognizes a right to informational privacy. Scalia and Thomas do not believe any such right exists, and that it's about time the Court deal with this issue head-on. This lengthy concurrence is a "Scalia special," with sarcastic asides, snide observations and a few good turns of the phrase. Read it if that kind of stuff turns you on.

Journalistic privilege is rejected in Chevron litigation

When can a private litigant subpoena someone's journalistic files? This raises serious First Amendment issues, which is why there is such a thing as "journalistic privilege." But that privilege is not impenetrable.

The case is Chevron v. Berlinger, decided on January 13. Berlinger was solicited by plaintiffs in foreign litigation in Ecuador to create a documentary that was sympathetic to their interests. That litigation alleged that Chevron was polluting the environment in Ecuador. Berlinger chronicled the litigation and and filmed "the events and people surrounding the trial," compiling 600 hours of footage. Chevron wanted that footage for that litigation and other purposes, including a treaty arbitration and a criminal prosecution in Ecuador.

The qualified journalistic privilege protects the "public's interest in being informed by a vigorous, aggressive and independent press." See how I italicized "independent"? The Second Circuit did the same thing in this decision. That foreshadows the outcome of this appeal. Berlinger may have been a journalist, but in this case, he was not independent. That waters down his privilege. The Second Circuit (Leval, Hall and Parker) writes:

While freedom of speech and of the press belongs to virtually anyone who intends to publish anything (with a few narrow exceptions), all those who intend to publish do not share an equal entitlement to the press privilege from compelled disclosure. Those who gather and publish information because they have been commissioned to publish in order to serve the objectives of others who have a stake in the subject of the reporting are not acting as an independent press. Those who do not retain independence as to what they will publish but are subservient to the objectives of others who have a stake in what will be published have either a weaker privilege or none at all.

As the plaintiffs' lawyer in the Ecuador case commissioned Berliner to make the documentary of the litigation from the perspective of his clients, and Berliner edited the documentary at the plaintiffs' direction," the trial court that upheld the subpoena forcing Berliner to turn over his files properly held that Chevron was able to overcome the privilege.

Inmate can sue Nassau County over genitalia rodent bite

I remember picking a jury for a trial involving an ex-inmate from the County jail. A potential juror told the judge that she did not want to waste her time on a case filed by a prisoner. The judge told the potential juror that this comment was disgraceful. The judge's point was that everyone deserves a fair jury. But you cannot escape the public's view of prisoners, including people who were not yet convicted of anything.

The case is Solomon v. Nassau County, 2011 WL 66128 (EDNY Jan. 7, 2011), decided by Eastern District Judge Arthur Spatt. This case got some news coverage, and some jurors will object to hearing the case, but like all cases that go to trial, it raises important legal questions, in this case, a constitutional issue about the proper treatment of inmates.

Solomon was in Nassau County jail as a pre-trial detainee. He was not yet convicted. He was sleeping in his cell when a rat jumped out of the mattress and bit his penis. Rats are unsanitary and disgusting, and Solomon suffered serious emotional distress over this. He sued the County under the Constitution's cruel and unusual punishment clause. Judge Spatt denied the motion for summary judgment, sending the case to trial.

Since unsanitary conditions can cause serious health problems, the judge says the jury may find that the County was deliberately indifferent to detainees like Solomon because the evidence shows that many formal and informal inmate grievances complained about rodent infestation at the jail, and a corrections officer also testified that he occasionally sees mice in the dorms. This means the County cannot simply argue that it was unaware of the problem. While the County says it did the best it could in dealing with vermin, the jury could find otherwise. While policy dictated that the outside pest control company must be made aware of any rodents, that did not always happen. The jail also failed to implement recommendations by the pest control company about ways to reduce the presence of rodents, and the evidence also suggests the jail was not doing enough to clean the cells.

So the case goes to trial. During jury selection, the potential jurors are asked if they can be fair in hearing the case. The judge will have to make sure that the public's general bias against inmates does not infect the jury pool. That will not be easy. Not every potential juror is as blatant as the woman who told the judge in our case that she did not want to waste her time on an inmate's case.

Leave well enough alone

The Court of Appeals can be full of surprises. In this case, the Court of Appeals takes the initiative to throw out a jury verdict in a false arrest claim on the basis of arguments that the municipality apparently never made.

The case is Caceres v. Port Authority, decided on January 31, 2011. Arrested on a warrant meant for someone else, Caceres sued Port Authority for false arrest. He sued under Section 1983 for the constitutional violation and also under state law. Cacares won at trial. The jury awarded Caceres $10,000 against both Port Authority and the arresting officer, but the trial court took away the verdict on the federal claim against the arresting officer, granting him qualified immunity. This leaves Caceres with a $10,000 judgment against Port Authority on the state law claim. The Court of Appeals is not sure why Cacares is even appealing the trial court's qualified immunity ruling, since Port Authority had no intention of appealing the $10,000 verdict. As Judge Jacobs writes, "for some reason, Caceres (not content with a damages award that was fully recoverable from the Port Authority) appealed the qualified immunity ruling; the Port Authority, which had been content to pay the judgment, then cross-appealed on the ground that absent liability of any of its officers, vicarious liability does not lie."

Caceres comes away with nothing. First, the Court of Appeals finds that the arresting officer deserves qualified immunity on the federal claim because, although Caceres may have been arrested on a case of mistaken identity, it was reasonable for the officer to make the arrest under the circumstances, including the fact that Caceres and the subject of the warrant were both racial minorities. Although Caceres is a light-skinned Hispanic and the other guy was "a black man of dark complexion," the Court of Appeals concludes that "complexion varies within a given race classification, and the descriptive terms in the warrant reflected one person's subjective classification at one point in time. A Port Authority officer might reasonably assume that the skin color and race information were entered incorrectly -- particularly since height, weight, age, hair color and eye color were either accurate or within bounds." Also, these two individuals were each assigned the same New York State Identification Number, a designation given to arrestees (Caceres had been detained in the past) that is so unique that no reasonable officer would think it was incorrectly assigned to Caceres.

So the federal false arrest claim is gone. What about the state false arrest claim? If that is affirmed, Caceres still gets his $10,000. The problem here is that the claim was brought outside the limited statute of limitations governing false arrest claims. The Court of Appeals figures this out for itself; Port Authority apparently did not make this argument at any time in the case. Since this is a jurisdictional ground for dismissal, the Second Circuit can seize upon that issue for the first time. So the state false arrest verdict is gone, as well. The Court of Appeals saw this as a pointless appeal since plaintiff had an enforceable judgment against Port Authority. It throws out the whole case sua sponte. What the Court of Appeals is saying is that we should leave well enough alone.