Monday, October 31, 2011

Officers violate Fourth Amendment in gun seizure

Can the police just march into your house without a warrant? Sometimes they can. That does not mean they have the right to seize the gun in the bedroom, though.

The case is U.S. v. Simmons, decided on October 26. This case implicates the Fourth Amendment, which protects the sanctity of the home. Robert Simmons's roommate, Jamar Vaz, told the police that Simmons flashed a handgun during a dispute. The police accompanied Vaz into the apartment so that Vaz could retrieve his stuff. Once they got inside the apartment, the police conducted a protective sweep, making sure no one would jump out of nowhere with a gun. They saw Simmons lying in bed with a gun on the nightstand. They got Simmons out of bed and made him wait in the hallway. The police were now safe. They went into the bedroom and got the gun, and since he already had a felony record, Simmons was thus charged with unlawful possession.

The Court of Appeals (Parker and Pooler [Winter dissents]) says the gun seizure violated the Fourth Amendment. While the "public safety" exception to the Fourth Amendment allowed the police to ask Simmons about the gun without reading him any Miranda rights, the police had no right to then enter the bedroom to retrieve the gun. By this point, Simmons is standing in the hallway in his underwear, surrounded by police officers. The public safety threat is gone. If the police want to retrieve the gun, they can get a warrant. They did not do so, which means the gun is suppressed as evidence. Here's what Judge Parker writes:

Thus, before conducting the search, the officers had effectively allayed the safety concerns that justified their initial questioning of Simmons and had, by exercising control over a compliant occupant and the surrounding premises, neutralized any threat that Simmons or the gun may have initially posed. In doing so, the officers also eliminated the possibility of the destruction of evidence. Under these circumstances, there simply was no "urgent need" to further search the home for the gun without a warrant.

Thursday, October 20, 2011

Anti-war protesters lose case against West Point

Military installations like West Point are no-speech zones, even though West Point is also a college and cultural center. But even no-speech zones cannot allow for viewpoint discrimination. A case went to trial three years ago alleging that anti-war protesters were kicked out a West Point basketball game because of their T-shirts. The jury rejected that claim, and the Court of Appeals affirms.

The case is Dolman v. Horner, a summary order decided on October 18. The Second Circuit (Raggi, Pooler and McLaughlin) summarizes the case:

On February 28, 2004, the Plaintiffs attended a basketball game - open to the public - at West Point. When the national anthem played, they stood up, removing their jackets and revealing t-shirts spelling out “US OUT OF IRAQ.” Shortly after, John Spisso, the facilities manager, told Plaintiffs they could either remove their t-shirts or leave the arena. The Plaintiffs agreed to leave the arena. Garrison Commander Ann Horner sent each of the Plaintiffs a letter barring them from “all areas of West Point” for a period of five years, based on the incident.
You have to remember that this incident took place at the height of the Iraq war controversy. Showing up to a West Point event with anti-war T-shirts was no way to make friends. But if they were thrown out of the game because they were anti-war, then they win the case, because even military installations cannot discriminate based on viewpoint. The jury found for defendants. The Court of Appeals affirms, reasoning that the jury could find that the decisionmakers were not motivated to discriminate against the protesters but instead thought they were enforcing a legal no-demonstration policy:

The district court properly determined that the Plaintiffs failed to satisfy the high standards required to overturn a jury verdict. While the record does contain evidence in support of the Plaintiffs’ case, the record also contains ample evidence from which a reasonable jury could find in favor of defendants. Specifically, a reasonable jury could find that regardless of whether a specific written policy existed prohibiting organized demonstrations at West Point, both Spisso and Horner believed demonstrations were not permitted at West Point, and that belief - not viewpoint discrimination - motivated the removal of Plaintiffs and the subsequent barment order. Moreover, a reasonable jury could conclude that defendants considered the t-shirts as the vehicle for the demonstration, and barred Plaintiffs based on their group effort in conveying the message, rather than for the message itself.

Wednesday, October 19, 2011


There is a time and a place for everything. For the 9/11 conspiracy theorist, it's the street corner or the Internet, not the Federal courts. There are no sanctions on the street corner. There are sanctions in the Federal courts.

The case is Gallop v. Cheney, decided on October 14. This case alleges that the U.S. government orchestrated the 9/11 attacks. As if the government actually had the coordination to pull something like this off. Anyway, the district court dismissed the case. The Court of Appeals affirmed, but then it threw in a sanctions order for good measure. Plaintiffs' counsel had to show cause why sanctions were not warranted. Then things got interesting.

Plaintiff immediately moved to disqualify the panel that decided the appeal. Counsel said that the judges on the case were too emotionally-affected by the 9/11 attacks to decide the case fairly. What is more, "[t]he affidavit was also peppered with disdainful and unsubstantiated conclusions about the panel members’ emotional stability and competence to serve objectively. See, e.g., Veale Aff. ¶¶ 3, 19 (alleging that the Court had engaged in a “rank, dishonest wielding of ordained power,” and that the participation of one member in particular was so egregious that it “would or should provoke a congressional investigation”)."

That did it. Counsel got sanctioned again, this time for attacking the judges this way. Not only does "the response presents only irrelevant information in a jarringly disorganized manner, united solely by its consistently patronizing tone," but it does not "provide a sufficient basis for pursuing an appeal of Gallop’s claims against defendants." In addition, the response "contains a robust collection of unsupported accusations of bias against the Court. For example, it accuses the Court of 'an untoward, actionably biased judicial response' to Gallop’s claims, 'angry pre-judgment,' and participation (or at least acquiescence) in the 'ongoing' government 'conspiracy' regarding the events of 9/11." The lawyers are hit with paying double the governments' costs in handling the appeal plus $15,000 in fines, to be paid jointly and severally.

Wednesday, October 12, 2011

Party Witness Rule does not violate First Amendment

Election Law in New York is notorious for its crazy rules and requirements to get on the ballot. You sometimes hear about political careers that were destroyed because the nominating petitions used the wrong staple. Is that an urban legend? Maybe. But everybody knows you need an Election Law expert to get on the ballot, which is why some of these rules are unconstitutional. But some are legal.

The case is Maslow v. Board of Elections, decided on September 30. It took the Court of Appeals two years to issue this 11-page decision. Political candidates, among other candidates, asked the Court to decide whether the Party Witness Rule violates the Constitution. Under that rule, the guy who circulates petitions to get you on the party primary ballot has to be a notary public or commissioner of deeds. If you can't find a notary or commissioner of deeds, you can use instead "enrolled voter[s] of the same political party as the voters qualified to sign the petition.” The plaintiffs want to use petition witnesses from different political party. They lose the case.

This is a First Amendment case. The plaintiffs say the Party Witness rule violates their freedom of associational right to have non party members assist in party elections. But the Court of Appeals (Hall, Straub and Livingston) say this rule only minimally interferes with freedom of association.

The Court of Appeals notes that "A political party’s associational right to exclude forecloses the possibility that non-party members have an independent First Amendment right to participate in party affairs." Moreover, “As for the associational ‘interest’ in selecting the candidate of a group to which one does not belong, that falls far short of a constitutional right, if indeed it can even fairly be characterized as an interest.” The parties have the right to limit these activities to members of their own party. The Republicans don't need Democrats to gather signatures for Republican candidates, and vice-versa. The rights of the party exceed the rights of the candidates.

What further hurts the plaintiffs here is that there is some logic to the Party Witness rule. The rule was enacted in 1951. Under the Legislative history, New York enacted the Party Witness Rule "apparently in response to incidents of 'party raiding,' whereby members of one party would actively participate in the primary of a rival party in the hope of influencing that party’s candidate nomination and thus improving their own chances in the general election."

Wednesday, October 5, 2011

Sham affidavits doom plaintiff's sexual harassment case

Not all factual disputes get you a trial. Sometimes, the plaintiff's many testimonial inconsistencies will convince the court that the plaintiff does not a deserve a trial. The Second Circuit first developed this approach to summary judgment in Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), a police misconduct case. This time around, the Court of Appeals does this in an employment discrimination case.

The case is Rojas v. The Roman Catholic Diocese of Rochester, decided on October 4. This is a sexual harassment case. Plaintiff says she was harassed by Pastor Enyan-Boadu and that she told management about it, which did not remedy the hostile work environment. Except that her testimony on both whether Enyan-Boadu was her supervisor and whether she told management about the harassment was all over the place.

While plaintiff's summary judgment affidavit and deposition testimony said that the harasser, Enyan-Boadu, was her supervisor and that management knew or should have known about the harassment, the lawsuit itself and her sworn interrogatories said that Enyan-Boadu was only a co-worker. (If he was the harassser, she has a stronger case). Similarly, the EEOC charge and lawsuit (as well as the interrogatories) did not quite allege that she told management about the harassment, but "Rojas's story changed when she was deposed by the Diocese's attorney" when "for the first time, she stated that she complained to [another manager] during her annual performance evaluation ... that Enyan-Boadu was 'touching her.'" Also during deposition, she testified that she told this manager on a different occasion that Enyan-Boadu was "touching me and kissing me." On the other hand, the Second Circuit says, the Diocese sought summary judgment on the basis of affidavits and contemporaneous emails and meeting notes that "strongly suggest[ed] that it had no knowledge of the alleged harassment until after Rojas's employment ended."

So, we have a problem here. Rojas tries to repel summary judgment through an affidavit and deposition testimony that would support her claim. But other documents in the case, including the complaint itself, does not support this sworn testimony. The case is dismissed. Although witness credibility is for the jury, the Court of Appeals has previously held:

in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether ‘the jury could reasonably find for the plaintiff,’ ... and thus whether there are any ‘genuine’ issues of material fact, without making some assessment of the plaintiff’s account.
Does this rule make sense? It might. The courts might be doing plaintiffs' attorneys a favor in adopting this rule. With these kinds of inconsistencies, the plaintiff would get destroyed on cross-examination if the case ever went to trial. The Supreme Court has not adopted this approach to summary judgment, but it probably would if given the opportunity. Courts are sensitive to back-door efforts to force a trial through inconsistent summary judgment affidavits.

The serious inconsistencies between plaintiff's summary judgment submissions and her prior sworn statements and judicial admissions allow the Court of Appeals (Cabranes, Hall and Miner) to affirm the grant of summary judgment. The Court reminds us that district courts should not "routinely engage in searching, skeptical analyses of parties 'testimony' in opposition to summary judgment," particularly if there is a plausible reason for the inconsistencies. But in certain extraordinary cases, the trial court may dismiss the case if it thinks the summary judgment affidavits are sham. Otherwise, those affidavits "would license the mendacious to seek windfalls in the litigation lottery." As plaintiff in this case did not explain the discrepancies, summary judgment was proper.

Tuesday, October 4, 2011

Inmate gets a second chance at late grievance

Congress has made it so hard for inmates to bring lawsuits that it's a wonder that they even win their cases anymore. But some do, and occasionally the federal courts find ways to minimize the rigid filing requirements that inmates must navigate.

The case is Hill v. Curcione, decided on September 15. This case shows the difficulties of winning an inmate case on the merits, but it also shows that he Court of Appeals will bend the rules a little for the inmates. Hill was at the Niagara County Jail. He suffered an injury when some guards put the handcuffs on too tight, causing some numbness and much pain. He was given Motrin, which didn't kill the pain, and Hill asked for a nerve conduction study. Under the jail's rules, he filed a grievance over the handcuffs. He sues over the excessive force and also challenges the medical treatment.

The medical treatment claim dies instantly. Inmates have to show deliberate indifference to their serious medical needs. This is a difficult standard to meet. Hill cannot satisfy it. The lawsuit says he was denied the right pain medication and the nerve study, but "there is no indication in the complaint that any medical provider recommended treatment different from the treatment that Hill was afforded," the Court of Appeals (Miner, Cabranes and Straub) says. Nor does Hill allege that the jail staff acted with the "culpable state of mind," i.e., deliberate indifference. As the courts see it, cases like this are actually challenging good-faith medical judgment in the jails, not deliberate indifference. The case fails.

But Hill does prevail on another issue. In order to bring a lawsuit for assault or anything else that happens in the jail, the Prison Litigation Reform Act (PLRA) requires inmates to bring an in-house grievance within a certain time frame: in this case, five days from the incident and, if the grievance is denied, you have two days to appeal to the jail's chief administrative officer. This of course is all academic, since inmates rarely win their grievances. But grieve they must. While Hill's grievance was untimely, the jail's grievance guy entertained it and denied it on the merits, not because it was untimely. The Second Circuit adopts the rule that other Circuit courts have followed: "a late filing that is accepted and decided on the merits fulfills the exhaustion requirement of the PLRA." This rule allows for the reality that some institutions waive their procedural defenses. Hill's assault claim in federal court is reinstated. A nice ruling by the Second Circuit, but you can bet that in the future, jails will not entertain untimely inmate grievances on the merits; they will reject them as untimely.