Technicality kills habeas challenge to criminal court exclusion

The Court of Appeals has repelled a Habeas Corpus claim alleging that a state trial court judge improperly kicked a 12 year-old family member from the courtroom in violation of the Sixth Amendment. The convicted inmate loses on the ultimate technicality: the Court of Appeals find that his lawyer did not preserve his objection to the courtroom exclusion at trial.

The case is Downs v. Lape, decided on September 14. Is there anything worse than losing on a technicality? Making things worse for Downs, Judge Chin dissents from the Second Circuit ruling. This means that Downs had some legitimate arguments, but he could not win over the other two judges, Wesley and Lohier. When Hill went to trial on the charge that he robbed a body shop, the trial court excluded his 12 year-old brother from the courtroom. This is unconstitutional and entitles the defendant to a new trial unless there is a very good reason not to have a public trial. The problem is that a sparse record was made of this determination, giving the Second Circuit very little to work with in assessing whether the state trial judge did the right thing.

After the trial judge kicked out the 12 year-old boy, Downs' lawyer went on the record and said this:

I do want to note for the record that there was a young man who, a family member of the defendant who had been asked by the Court to leave because of his age. He is 12 years old and the Court is indicating that it sets a limit of approximately 16 or 17 years of age.

I informed the family of that and I’m sure they will comply. However, I do want to note, for the record, that I believe the young man is a suitable age and that he would not have been an obstruction to the proceedings.

But be that as it may, I have also spoken to the assistant district attorney earlier to apprise her of the following list of things that I believe that I am entitled to and have not yet received . . . .

The Second Circuit has its hands tied behind its back on this appeal because for Downs to win on his claim that the trial court violated the Constitution, he has to show that the Appellate Division "exorbitantly" applied settled state law rules in rejecting Downs' direct appeal. Judge Lohier says that Downs cannot meet that test. While Downs' lawyer offered a few words on the record after the trial court made its exclusion ruling, it is not clear that this was actually a particularized objection or whether instead counsel was simply telling the court that the family intended to comply with the ruling. These distinctions matter in these cases, and the Court of Appeals defers to the Appellate Division's ruling that counsel did not preserve the objection at trial.

This is a close case, though, as shown by Judge Chin's dissent, which says that counsel did make a proper objection in making his comments "for the record," which is lawyer-speak for saying something that he wants the appellate court to see on some future date in assessing the fairness of the trial. Judge Chin was a former trial judge. He writes, "as a trial judge, I certainly understood that a lawyer was objecting when she stood up and said 'for the record' before expressing disagreement with my ruling. To Judge Chin, it looks like counsel was objecting to the trial court's blanket rule of excluding all young people from criminal trials, a per se constitutional violation since particularized reasons must justify these exclusions. As this objection was timely, counsel did not waive his protest, and this case should be decided on the merits.

Discrimination plaintiffs can sue class-action lawyers for fraud

The Court of Appeals reinstates a class action lawsuit filed by employment discrimination victims who claimed their attorneys sold them up the river by signing a separate $7.5 million deal with management as a means to settle the cases quickly.

The case is Johnson v. Nextel Communications, decided on September 26. Here's what happened: 587 Nextel employees wanted Leeds, Morelli & Brown, a Long Island law firm that specializes in employment discrimination cases, to represent them in their discrimination claims. The law firm then signed a $7.5 agreement with Nextel. In exchange for this money, Leeds Morelli would have to do the following: (1) persuade its clients en masse to abandon their legal and administrative proceedings against Nextel, abandon their right to a jury trial and accept an expedited mediation/arbitration and (2) allow Leeds Morelli to work as a Nextel consultant for the next two years once their clients' claims are resolved, a deal that would no doubt conflict out that law firm from representing any more Nextel clients. As the Second Circuit (Winter, Hall and Cederbaum [D.J.]) notes, "none of the payments were conditioned on recovery by any of [Leeds Morelli's] clients."

So Leeds Morelli is serving two masters: their discrimination clients and Nextel, who employed the clients. The clients sued Leeds Morelli for, among other things, fraud, legal malpractice and breach of fiduciary duty to its clients. The victims of this double-sided deal say that Leeds Morelli did not share all the details of its deal with Nextel. They also sue Nextel for aiding an abetting breach of fiduciary duty. The Court of Appeals says the plaintiffs state a claim, and the lawsuit thus moves forward to discovery.

The Second Circuit says this deal with Nextel stinks and creates a massive conflict of interest by inducing the law firm to settle its clients' cases in exchange for $7.5 million in an "irresistible incentive" from the very employer its clients were trying to sue. Judge Winter outlines the many ways that Leeds Morelli would collect all this money by getting its clients to sign over their rights against Nextel. "Leeds, Morelli & Brown was being paid by Nextel in effect to ignore its duty to represent clients as individuals with differing claims and interests that might require differing amounts of time and preparation vigorously to pursue a recovery." No doubt the Second Circuit thinks this deal with Leeds Morelli was unethical.

The Court says there cannot be informed consent here; the clients cannot "knowingly" waive their objections to any conflict of interest. The Circuit says that, in light of its relationship with Nextel, Leeds Morelli could not have given its clients independent advice as to whether to sign their settlement agreements with Nextel. For these clients to fully understand the multiple conflicts of interest such that they could waive the conflict, they would have to consult with another attorney to explain it all to them. By definition, the Court says, this cannot be informed consent.

En banc smackdown on phone surviellance lawsuit

If you don't know how the Court of Appeals is structured, there are 12 active judges and another 12 judges on senior status. Three judges sit on any given case, and if you lose in the Second Circuit, you can ask the entire court to hear the case en banc, all 20 judges and all. The Second Circuit rarely hears a case en banc, but that does not mean these applications do not provide for some riveting reading as the individual judges trade barbs back and forth on whether to hear the case as a full court.

The case is ACLU v. Clapper. The series of individual en banc opinions was handed down on September 21. The Second Circuit originally decided Clapper on May 21. A summary of that decision is here. In that decision, the Court of Appeals said that various journalists, scholars and lawyers have standing to challenge recent amendments to the Foreign Intelligence Surveillance Act, which makes it easier for the government to eavesdrop on telephone conversations with non-Americans outside this country. As the plaintiffs make their living speaking and working with foreigners, they convinced the Court of Appeals that they had a legitimate stake in challenging the constitutionality of the law because this surveillance requires the plaintiffs to expend additional costs to travel abroad to speak to these targets in person rather than have their sensitive and/or confidential phone conversations recorded without their knowledge. In other words, the plaintiffs have standing to bring this lawsuit. Here's how I summarized the case in May:

In challenging the law, plaintiffs filed affidavits that said "the individuals with whom [they] communicate include 'people the U.S. Government believes or believed to be associated with terrorist organizations,' 'political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,' and 'people located in geographic areas that a special focus of the U.S. government's counterterrorism or diplomatic efforts.'" Their legal injuries stem from their fear of future government surveillance under the 2008 amendments to the wiretapping laws, which have "compromised their ability to locate witnesses, cultivate sources, gather information, communicate confidential information to their clients,and to engage in other legitimate and constitutionally protected communications." They also have to take costly and time-consuming measures to avoid the wiretapping, including traveling long distances to meet personally with individuals.

Unsatisfied with this ruling, the government filed an en banc petition. As usual, the Court of Appeals declines to grant that petition, so the original panel decision stands. The Second Circuit rejected en banc review by a 6-6 vote, more or less along Democratic-Republican lines. Judge Lynch writes an opinion explaining why the original panel decision was correctly decided under traditional standing principles, which hold that you can challenge government policy in court if you can show through affidavits that you will be directly affected by the policy. Judge Lynch is not sure the plaintiff can win the case on the merits, but that's something for the trial court to worry about. His sole rhetorical flourish here is that "the Constitution sets limits on the powers even of Congress. It is the glory of our system that even our elected leaders must defend the legality of their conduct when challenged."

Judges Raggi and Livingston each file lengthy dissents from the Court's refusal to hear the case en banc. Judge Raggi writes that "A rule that allows a plaintiff to establish standing simply by incurring costs in response to a not-irrational fear of challenged conduct is unprecedented. On that theory, even a mobster's girlfriend who pays for a cab to meet with him in person rather than converse by telephone would be acting on a not-irrational fear of Title III interception and, therefore, have standing to challenge that statute." Judge Livingston writes that the original panel decision is "in frank disregard of clear Supreme Court authority."

But Chief Judge Jacobs provides the real rhetorical fireworks. This is no surprise. The Chief is known for this. Here, Judge Jacobs calls this case a political stunt:

At the risk of sounding obvious, the purpose of this lawsuit is litigation for its own sake -- for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation. In short, counsel's and plaintiffs' only perceptible interest is to carve out for themselves influence over government policy -- an interest that the law of standing forecloses.

It's hard to win a prison medical indifference case

An inmate at an upstate New York prison sued under 42 USC sec. 1983 claiming that he was denied access to medically-prescribed therapeutic diets. If the inmate is right, he has a claim under the Eighth Amendment. If he's wrong, then he has no case. The Second Circuit says he has no case.

The case is Collazo v. Pagano, decided on September 2. Inmates don't have it easy. Certainly in the world of litigation they don't have it easy. The rules are different, and the Supreme Court has set out legal standards that everyone else do not have to follow. For claims like this, the inmate cannot win unless the defendant was deliberately indifferent to his serious medical needs. The "serious medical needs" prong is hard enough to meet, but even if the inmate has a serious medical issue, he also has to show that the defendant subjectively intended to deny him appropriate medical attention, the "equivalent of criminal recklessness," the Second Circuit reminds us.

Why does Collazo lose the case? After a prison doctor said that Collazo needed a therapeutic diet low in saturated facts, the jail did provide him the right food. But then a corrections officer accused Collazo of throwing away his food for no good reason. In response, the jail cut off the special diet. That diet was restored after an in-house hearing officer said that Collazo was innocent of the charge. Then, Collazo was diagnosed with diabetes, but he missed a ton of meetings with the prison doctor. His special diet was revoked because of this. As it happened, it wasn't Collazo's fault that he missed the meetings. No one had told him that he was eligible for the special diet.

What we have here is negligence at the jail. But it's not deliberate indifference, the Court of Appeals (Cabranes, Winter and Straub) say. Negligence will get you a good medical malpractice claim. But the courts require deliberate indifference plaintiffs to prove a lot more: subjective or malicious intent. That's not this case. This case involves an "innocent misunderstanding." No Eighth Amendment case for Collazo.

Court reinstates enormous judgment in USERRA reinstatement case

The Court of Appeals has sustained a nearly $800,000 judgment in a case alleging that a private employer discriminated against an Air Force reservist who was not given a comparable job after he returned from a post-September 11 commitment. This is a significant USERRA case that examines a number of unique statutory provisions on liability and damages. This is also a wipeout for Wachovia, which appears to lost on all the issues it raised on appeal.
The case is Serricchio v. Wachovia Securities, decided on September 13. Wachovia takes it on the chin in this case. Not only did the jury award plaintiff $389,000 in backpay, but it authorized a liquidated damages award in that same amount, and the trial court on top of that ordered plaintiff reinstated to a financial adviser position with certain financial benefits. All because Wachovia denied Serricchio the same or comparable position in violation of the Uniformed Services Employment and Reemployment Rights Act, or USERRA, which offers aggrieved plaintiffs quite a bit in the way of damages and relief for this statutory violation.

The Second Circuit (Pooler, Wesley and Koeltl (D.J.]), issues a series of rulings in this case:

1. The jury could find that Wachovia waited too long to offer plaintiff a position when he returned from military service. Under USERRA, if the plaintiff demands reinstatement, the company has to make prompt and best efforts to do so. The company says that Serricchio did not unconditionally request reinstatement and that his letter to Wachovia said the company was breaking the law and it threatened litigation. But as the Second Circuit notes, the letter also "plainly asked that Serricchio be reinstated, and the fact that it complained about other actions taken by Wachovia does not, under relevant law, negate the fact that it included a demand for reinstatement." These letters are not required to follow any format.

2. The jury could also find that the company did not offer plaintiff a comparable position. Yet, the company did not promptly reply to Serricchio's request for reinstatement, and it did not actually reemploy him for four months. This violates USERRA. As for the comparable position, this is a complicated inquiry. The employer has to predict what the plaintiff's position and duties and compensation would have been (as well as opportunities for advancement) had he not gone off to war. In this case, positions and duties were shifted around at the office, so that when plaintiff came back, he was given a much inferior position with a sharp cut in compensation. "here, the evidence indicated that prior to his activation, Serricchio was responsible for servicing in excess of 130 accounts, and, along with a partner, was responsible for managing in excess of $9 million dollars. By contrast, Wachovia's offer for reemployment consisted of providing Serricchio with a limited number of small accounts, a modest monthly draw that would be offset by any commissions earned, and opportunities for cold calling clients." This offer doesn't cut it under USERRA. The jury could rule in plaintiff's favor, the Court of Appeals says. As he was denied comparable commission-earning opportunities that existed before plaintiff marched off to war, that was also a USERRA violation.

3. The jury also finds that plaintiff was constructively discharged. Plaintiffs lawyers know this is a difficult claim to win at trial. You have to show the plaintiff's working conditions were so intolerable that any reasonable employee would have resigned. More constructive discharge claims wind up in the litigation graveyard than any other. But not here. What makes this case different from the losers is that "the employer had notice of the particular problems with the employment position and took no steps to ameliorate them." The Second Circuit cites an Eighth Circuit case for this proposition. Maybe this gives plaintiffs some additional ammunition in back pay claims. Or maybe instead this concept is unique to USERRA claims. In any event, the jury also could rule in plaintiff's favor on this claim because of (1) Wachovia's unexplained lengthy delay in offering to reinstate plaintiff and (2) he was offered an inferior position (including "cold calling" duties normally given to newcomers) on which he could not support his family. This is enough to show wrongful intent to show constructive discharge.

4. The liquidated damages award was not an abuse of discretion, despite defendant's argument that it acted reasonable and this case includes legal issues of first impression. The USERRA violation was willful in several respects, including the delay reinstatement offer and inferior compensation package, not to mention the constructive discharge. You get liquidated damages for this under USERRA. Nor did the district court abuse its discretion in ordering that Wachovia reinstate plaintiff. Reinstatement the favored remedy in employment cases, and the terms of employment and compensation for plaintiff that the district court ordered were also not an abuse of discretion.

Court of Appeals revives inmate sex abuse class action

Three thousand inmates in New York sued the state corrections bureaucracy in claiming that female inmates are susceptible to rape and sexual abuse because the state does not properly screen, train and supervise its corrections officers. This class action was filed in 2003, and the Second Circuit heard argument on this appeal in 2009. For now, it rules in favor of the inmates, reversing the district court, which said the case was moot because the named plaintiffs were no longer in jail or did not comply with in-house procedures to challenge the misconduct.

The case is Amidor v. Andrews, decided on August 19. A case is moot if there is no longer a live dispute for the court to resolve. This can happen if you are challenging a policy that no longer will apply to you. In class actions, the case is moot if the policy no longer applies to the named plaintiffs. But mootness is a common-sense idea. A case is not moot if the case is capable of repetition but evading review. In other words, if the case moves to slowly for the court to strike down the policy which may arise again and again, then the courts will review the policy's legality even if it does not apply to the plaintiff when the case is decided.

Inmate cases are at risk for mootness because prisoners come and go and the policy remains in effect. Most of the named plaintiffs here are no longer in jail. The Second Circuit (Winter, Cabranes and Hall) says this is a close case, but it gives one to the inmates. It reasons:

This action is brought on behalf of all women inmates in DOCS custody, alleging constitutionally defective policies and procedures in failing to protect female inmates from sexual harassment, abuse, and assault by male staff. While the entire class may be exposed to the risks caused by the constitutionally defective policies and procedures alleged, as noted, the grievance procedure may be triggered only by an inmate who has been a victim of sexual misconduct. Because the number of inmates subjected to acts of misconduct can be a small fraction of the total inmates at risk, the odds of an inmate being able to complete the grievance procedure and litigate a class action while still incarcerated are rather small. All thirteen appellants were in DOCS custody when they commenced the action; only four remained incarcerated when the district court rendered its September 13, 2005 decision. Four appellants have been released and subsequently reincarcerated during the course of these proceedings, and of these, only two, remained in custody following the filing of the notice of appeal.

Accordingly, we conclude that it was error for the district court to dismiss as moot the claims of the individual plaintiffs who had been released from prison after the filing of the amended complaint.

But while some of the named plaintiffs are still in jail, the case is also at risk for dismissal because of the 13 inmates, only nine filed in-house grievances, and none of those nine raised concerns about the systemic problems with sexual abuse. The Prison Litigation Reform Act requires inmates to file grievances with the jail and follow through with the in-house appeals process before they proceed in court. The PLRA has killed a lot of prisoner lawsuits, and it almost kills this case. But it does not. If all 13 inmates screwed up in their grievances, then the case cannot proceed as a class action. So the Second Circuit goes through the inmates one by one to see who failed and who succeeded. One inmate did hint at systemic abuse, but her grievance was not good enough to preserve her issue in court because she did not follow through on that grievance through the in-house appeals process. Fortunately for the inmate class, three other inmates did file the proper grievance and exhausted the jail appeals process. Those three inmates are the heroes of this case for having successfully navigated the complex maze of in-house inmate grievance procedures that the PLRA has created. The case is remanded to the trial court.

Second Circuit rejects Supreme Court dicta in New Haven firefighters case

Competing impulses drive Title VII litigation: disparate treatment and disparate impact. Disparate treatment is when the employer discriminates against you on purpose. Disparate impact is when a facially neutral test has a disparate impact against a protected class. This all played out in Ricci v. DeStefano, 129 S.Ct. 2658 (2009), when the Supreme Court took this up for the first time. Ricci is now rippling into the Second Circuit, where it all started.

The case is Briscoe v. City of New Haven, decided on August 15. This is the companion case to Ricci, which began when the City of New Haven canceled the firefighters test because it had a disparate impact on minority candidates. After the Second Circuit ruled in favor of the City, the Supreme Court ruled in favor of the firefighters, ruling that in cases like this, the City may only get away with scrapping eligibility exams if it has a "strong basis in evidence" to believe that certifying the test results would result in a disparate impact case. The Court ruled in favor of the white firefighters who said that the City disparately treated them in refusing to certify the test.

Briscoe is also from New Haven. He wants to be a firefighters. He argues that the test in issue in Ricci had a disparate impact against minority candidates in violation of Title VII. Once again on the defensive, the City argues that the Supreme Court in Ricci already foreclosed this suit because it's dicta in that case says, "If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability." For you non-lawyers out there, dicta is language in a court decision that is not necessary to the holding and is only there as background.

So does this language mean that Briscoe has no case? No. The Second Circuit (Jacobs, Winter and Cabranes) says the above-quoted language from Ricci is only dicta, and that while it resembles the Ricci holding that the City may avoid disparate treatment claims if it has a strong basis in evidence to believe the test results would result in disparate impact liability, the converse -- as set forth in the above-quoted language -- cannot really be true. First, Title VII itself already tells us when a real disparate impact case exists: when the test is job related and consistent with business necessity. Judge Jacobs thus writes: "there is no need to stretch Ricci to muddle that which is already clear." In addition, the dicta in Ricci cannot guide us because "it is difficult to see how a 'strong basis in evidence' can be established for a disparate-treatment claim" as "it is hard to see how one can adduce a 'strong basis in evidence' that oneself will later act with 'discriminatory intent or motive.'"

This is all very complicated. If you have to read all of this twice, don't blame me, and don't blame the Second Circuit. Judge Jacobs suggests we blame the Supreme Court for needlessly adding this dicta to the Ricci decision when it was not even necessary. What this means for Briscoe is that his case is revived (the district court dismissed it) and it gets remanded for the trial court to take up the City's other defenses.

Circuit reinstates inmate's $500,000 sexual assault verdict

The Court of Appeals reinstates a $500,000 jury verdict in favor of a female jail inmate who was raped by a male corrections officer. The Court finds that the jury properly found Monell liability against the county on the basis that the sheriff was deliberately indifferent to the risk that Cash would be sexually assaulted by an unmonitored guard.

The case is Cash v. County of Erie, decided on August 18. The evidence showed that, at the start of each shift, male sheriff's deputies may walk around unannounced through the female housing units, when the women are undressing, showering or using the toilet. And no county policy prohibited a male deputy from being alone with female prisoners. There were also no monitoring devices to supervise one-on-one interactions. The evidence also showed that in 1999 (three years earlier), a male guard had prohibited sexual intercourse with an exhibitionist female inmate.

Any civil rights lawyer will tell you that it's tough to win a deliberate indifference claim against a county. So while the jury ruled in Cash's favor, the trial court threw out that verdict post-trial. The Second Circuit (Raggi, Jacobs [in dissent] and Rakoff [D.J.]) reinstates the verdict. The evidence suggested that defendants knew there was a risk that male guards might sexually exploit female inmates. The Court notes that, under New York law, "the moral certainty of guards confronting prisoners in sexually tempting circumstances" creates such a "frequent risk of harm to prisoners as to require a complete prohibition of any sexual activity." The 1999 sexual incident also alerted the sheriff that it was not enough to prohibit sexual contact between guards and inmates. The sheriff also knew about sexual assaults at other correctional facilities.

The Court of Appeals concludes, "even if [the sheriff] had no knowledge of prior sexual assaults, it was hardly speculative for a jury to conclude that, at least by 1999, he knew or should have known that guards at [Erie County] and other local correctional facilities were engaging in proscribed sexual contact with prisoners, and that continued reliance on penal proscriptions alone was insufficient to protect prisoners from the range of harms associated with such misconduct." So, while the jail issued a memo telling guards that sex with inmates was prohibited, that was not enough to protect the female inmates. The sheriff should have prevented male guards from hanging around the female housing units when the women are using the shower and otherwise potentially exposing themselves.

Judge Jacobs dissents, concluding that this ruling will effectively "impose strict liability on municipalities and policymakers for any incidents that arise in a prison." He criticizes the majority for casting the issue in general terms: "the 'risk of sexual exploitation posed by male deputies guarding female prisoners.'" It was not enough, Judge Jacobs says, that a female inmate filed a disputed (and potentially questionable) complaint about sexual contact with a male guard three years earlier. In contrast, the jail did take stringent measures to prohibit any future sexual contact. As for the jail's continued reliance on male officers patrolling female housing units, Judge Jacobs writes:

Among the absurdities here is that no guard can know when direct contact may become required; in prison, interventions are not always by appointment. And at the risk of being obvious, this policy would either impose enormous incremental costs or would halve the personnel available for supervision of the facility (and thereby increase the risk of prisoner-on-prisoner violence and abuse).

In any event, the risk associated with having men and women interact in a closed environment is bred in the bone; it means nothing to say that the prison authorities should anticipate it. Abating that risk is another matter. If the majority opinion is sound, the only effective solution would be to have no guards of the opposite sex in women’s or men’s prisons. The majority opinion does not take account of the considerable ramifications. Because male inmates greatly outnumber female inmates, the resulting curtailment of opportunity for female guards would likely trigger valid Title VII suits. People with known same-sex preferences may not be able to serve as guards in any prison. And in another sphere, since military officers are responsible for their subordinates, we could not have mixing of the sexes in the military, unless (I suppose) the officers are paired off.

No First Amendment retaliation claim for student's suicide essay

The rules governing the free speech of public students are clear: students can say what they want to long as the speech does not materially and substantially disrupt the work and discipline of the school. But the rules governing when district officials can be sued for retaliation are not clear at all. The Second Circuit has now clarified the test of when the district's response constitutes an "adverse action."

The case is Cox v. Warwick Valley Central School District, decided on August 17. Cox was a middle school student. His class assignment asked what he would do if he had only 24 hours to live. The district is really asking for it when it hands out assignments like this. What the district got was Cox's essay stating that he would use the time "getting drunk, smoking, doing drugs, and breaking the law. It ends with Raphael taking cyanide and shooting himself in the head in front of his friends at the end of the 24 hours."

Is this free speech? The Second Circuit (Jacobs, Livingston and Rakoff [D.J.]) does not say. It instead resolves the case on the issue of whether the district's response to Cox's essay was retaliatory. When district officials became aware of the essay, they sent the boy to "in-school suspension" for two hours while they decided whether he was a danger to himself or others. (He was not a danger so they let him go). District officials also referred Cox's parents to Child and Family Services out of concern that they were neglecting their son for refusing to send him to a psychiatric evaluation. As background, the Court of Appeals tells us that Cox had other disciplinary problems on his record.

Strangely, the Court of Appeals has never decided when a school district's response to student speech is an adverse action. It uses the general constitutional test for this: whether the response would deter a reasonable person from speaking out again. Under that test, this is not retaliation. The ISS placement was brief, and district officials are obligated by law to refer any parent to Child and Family Services if they reasonably believe the parents are neglectful, and they are immune from liability for these referrals. In reaching this holding, the Court of Appeals is highly deferential to the obligations of school district officials to maintain order and generally run the school. The Court writes:

In their various roles, school administrators must distinguish empty boasts from serious threats, rough-housing from bullying, and an active imagination from a dangerous impulse. Making such distinctions often requires an investigation, and the investigation may result in discipline, but the investigation itself is not disciplinary--it is precautionary and protective. This is so even when a student is separated, interviewed, or temporarily sequestered to defuse a potentially volatile or dangerous situation. As in this case, a school administrator must be able to react to ambiguous student speech by temporarily removing the student from potential danger (to himself and others) until it can be determined whether the speech represents a real threat to school safety and student learning. Such acts deserve “unusual deference” from the judiciary.

Point-blank shooting is not depraved indifference murder

There is a difference between depraved indifference murder and intentional murder. That may sound logical, but this distinction has thrown a monkey wrench into many state-court criminal convictions. It prompts the Court of Appeals to grant a habeas petition on behalf of a guy who shot his estranged wife point-blank.

The case is Rivera v. Cuomo, decided on August 9. Rivera was charged with both depraved indifference murder and intentional murder. He argued at trial that his estranged wife had actually committed suicide and that he was not responsible for her death. The prosecutor tried the case as an intentional murder case, that Rivera simply pointed the gun at her head and pulled the trigger. In 1997, the jury convicted Rivera of depraved indifference murder.

Here's how the depraved indifference murder and intentional murder dichotomy plays out. In 2003, the New York Court of Appeals decided that intentional murder cases cannot lead to a conviction for depraved indifference murder. As the Second Circuit notes, "certain murders are so 'quintessentially intentional' that they cannot properly be categorized as depraved indifference murder." Depraved indifference usually involves a conduct such as firing a gun into a crowd or throwing a cinder block off a building during lunch hour in New York City. Intentional murder is ... intentional murder: laying in wait and pointing the gun at the victim with intent to kill.

When Rivera was convicted in 1997, the New York Court of Appeals had not yet said that depraved indifference murders cannot support an intentional murder conviction. So while Rivera's conviction back then may have been solid under New York law, it became quite shaky in 2003, when the New York Court of Appeals reinterpreted the Penal Law. In 2004, when Rivera had exhausted (and lost) all his state court appeals, the New York Court of Appeals said that "defendant's act of shooting his victim at close range could not be depraved indifference murder." Instead, it's intentional murder. The Second Circuit adds, "under any reasonable view of the evidence adduced at trial, Rivera's point-blank shooting ... -- which was either undoubtedly intentional or accidental in the course of a struggle -- could not support a depraved indifference murder conviction."

As the Second Circuit says that we must apply the law as it stood in 2004 and not in 1997, this means that the Second Circuit grants Rivera's habeas corpus petition. The depraved indifference conviction is vacated. The Second Circuit (McLaughlin, Parker and Pooler) says, "the New York Court of Appeals has made sufficiently clear by the time Rivera's conviction became final in July 2004 could not support a conviction for depraved indifference murder." Maybe Rivera is a bad guy, but what he did is not depraved indifference murder under New York Penal Law. Since the jury did not find him guilty of depraved indifference, only intentional murder, he is not criminally responsible for the victim's death. Rivera is one lucky guy.