You can't walk into a restuarant with an exposed handgun

Here's an easy one for the Court of Appeals. It finds that police officers are entitled to summary judgment in a false arrest and illegal search case where the plaintiff was walking around in a Chili's restaurant with an exposed gun.

The case is Goldberg v. Town of Glastonbury, a summary order decided on December 13. Goldberg was arrested for breach of the peace. Someone at Chili's called 911 because they saw a guy in the building with a gun. When the police arrived, they saw Goldberg with a holstered handgun visible on his hip. The police had reasonable suspicion to stop Goldberg without a warrant. We call this a Terry stop, after a Supreme Court ruling from 1968.

Goldberg also sued for false arrest. No dice for Goldberg. The police had arguable probable cause, a concept that fleshes out the qualified immunity test and makes it difficult to win these cases as law enforcement has an extra layer of protection against liability. The Second Circuit (Newman, Winter and Katzmann) says,

Prior to his arrest, plaintiff had entered the Chili’s restaurant wearing an exposed firearm, which the officers observed upon their arrival in response to the 911 call. Defendant Furlong observed that the manager, Laura Smith, appeared to be nervous, and she reported that she was alarmed over the handgun and had cleared the area as a result. On these facts, and given the lack of settled Connecticut law on the issue, we conclude that reasonable officers could, at minimum, disagree on whether there was probable cause to arrest plaintiff for breach of the peace in the second degree.

Maybe Goldberg knew his chances on appeal were slim. He raised for the first time on appeal an argument under the Second Amendment, you know, the one that says you have the right to bear arms in a public restaurant. The Amendment actually says nothing about public buildings, but ever since the Supreme Court breathed life in the Second Amendment a few years ago, I am sure that half the people with firearms-related convictions are saying that the Constitution protects their behavior. Who knows if Goldberg has a decent argument here. The Court of Appeals will not consider it because he did not raise it in the district court. The argument is waived.

A Fourth Amendment for the modern age

The Supreme Court finds that the Fourth Amendment is implicated when the police stick a GPS device on your car without your consent. This significant case requires the Justices to apply the Fourth Amendment -- adopted in the 18th Century -- to the modern age.

The case is U.S. v. Jones, decided on January 23. This case got a lot of attention because it seems to strike everyone as too intrusive for the police to stick a GPS on your car without a warrant and without your knowledge. Of course, cases like this usually nail people on drug-trafficking charges, but the Fourth Amendment is often developed from cases involving people we would not touch with a 10-foot pole. The Court unanimously sides with Fourth Amendment principles here and rejects lower court cases that essentially allowed the police to damned well do what they wanted. What makes the case confusing for Court junkies is that all the Justices find that GPS monitoring is a search under Fourth Amendment, but a 5-4 split disagrees on the reasoning, with a lone concurrence from Justice Sotomayor. Also, informed commentary says that the Court did not in this case actually say the government needs a warrant for these searches, only that the installation of the GPS was a Fourth Amendment “search.” But my guess is that, to be on the safe side, the government will probably try to get a warrant next time it tries this on people, and the lower courts might now require a warrant in these cases.

Justice Scalia writes for five Justices (including the conservative block) in noting that Fourth Amendment cases draw from two separate theories: the trespass theory (taken from 18th Century England) and the "reasonable expectation of privacy" theory (taken from a 1967 Supreme Court ruling). Both theories are alive and well, Scalia says. Both could apply here, in that the police have to trespass on your private property to stick a GPS under your car and you also have a reasonable expectation that your private comings and goings around town (and God knows where else) will remain private without a warrant. For now, the five-vote majority sticks with the trespass theory.

In siding with the defendant in this case, Scalia threads the needle by distinguishing two older Supreme Court cases that allowed the police to monitor (without a warrant) a beeper placed in a container being transported by the defendant. Beepers were the electronic gizmos of the 1980s. In one of those cases, the beeper was placed in the container when it belonged to someone else, and the original owner consented to the surveillance. In the other case, while the beeper was placed in a container that the defendant transported all over the place, the information seized by the police -- the defendant's itinerary -- "had been voluntarily conveyed to the public" as he had driven on public roads. The defendant in that case had no reasonable expectation of privacy in his public travel. The GPS case is different from the beeper cases because it involves an old-fashioned trespass, prohibited by the Fourth Amendment.

Writing for the four Justices who sided with the Fourth Amendment for different reasons, Justice Alito (and three liberals) says that the "reasonable expectation of privacy" theory is much more persuasive than the trespass theory. Alito says that short-term surveillance might not violate the Fourth Amendment, but long-term surveillance from GPS monitoring does implicate that Amendment because your privacy interests are placed in greater jeopardy. The general public is going to like Alito's privacy-related reasoning better than Scalia's relatively archaic trespass reasoning. While no one wants the police to touch your car without consent, most people would shudder at the thought that the government would closely monitor all of your whereabouts for a lengthy period of time without your knowledge.

Finally, a word about Justice Sotomayor, who concurs in Scalia's opinion but writes separately by articulating the real-world concerns about extended governmental surveillance in a way that normal people can understand, and by suggesting that the Court reconsider its precedents that give the police greater leeway when its monitors property owned by someone else. She writes, "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. ... This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. ... I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year." It's Justice Sotomayor who wants to bring the Fourth Amendment into the modern age.

Easy come, easy go, for habeas victory

In August 2011, the Second Circuit granted a habeas petition filed by an inmate who shot his estranged wife in the head point-blank. The Court ruled that the criminal conviction violated the U.S. Constitution because the jury found him guilty of depraved indifference murder and not intentional murder. This may sound outrageous, but the Court of Appeals actually had a reason for doing this. That decision has now been taken back. The Second Circuit has reversed itself in that case and reinstated the conviction.

The case is Rivera v. Cuomo, decided on December 16. 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 I wrote up the decision when it came down in August 2011:

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.

See, there was a distinction between depraved indifference murder and intentional murder. You could not be convicted of depraved indifference murder when the only basis to convict was intentional murder. That was then, all those months ago in August 2011. After the State lost the appeal in this case, it asked the Second Circuit to rehear the case. Most of these petitions for rehearing are rejected without comment. Not this one. Fortunately for the State, the Supreme Court in 2011 decided Cavazos v. Smith, 132 S.Ct. 2 (2011), which reaffirms that under modern habeas law, federal courts have to give state courts great deference in interpreting the U.S. Constitution. Say what you want about the notion that state courts have latitude to interpret the Constitution as they please so long as those interpretation are not "unreasonable." On reconsideration, the Second Circuit (Pooler. McLaughlin and Parker) now upholds the conviction, though not in ringing terms:

After much reflection, we now reverse course. Applying the law as it existed after Rivera’s conviction became final in July 2004, we find that although evidence of “significantly heightened recklessness” was slim, at best, giving the state courts and the jury the utmost deference, we cannot find that the evidence was so completely lacking that no rational jury could have found Rivera guilty of depraved indifference murder. Therefore, we have no choice but to uphold the decision of the state court.

Inmate wins reasonable accommodation claim at the Court of Appeals

An inmate wins his Second Circuit appeal claiming that a state correctional facility denied his rights under federal disability law. It looks like his lawyer won the case by writing a good brief.

The case is Shaw v. New York Department of Correctional Services, a summary order decided on December 15. Shaw is dyslexic. He wanted to take his GED exam. But he could not take the test because of his disability, so he asked the jail for assistance in proving that he has a cognizable disability so that he could get a reasonable accommodation in taking the exam. The jail denied the request.

The rule governing a case like this is that a demand for "reasonable accommodations to assure access to an existing program is cognizable, but a demand for additional or different substantive benefits is not." The district court denied Shaw's claim because it thought that he was requesting additional or different substantive benefits. Shaw is now represented by counsel on appeal, and the Second Circuit sees it differently. Folks, this is one reason why counseled cases fare better than pro se cases. Counsel told the Second Circuit (Newman, Hall and Gardephe [D.J.]) that  the complaint, in referring to a failure to accommodate, can refer to "a number of possible accommodations, including oral examinations, recorded lectures, and providing Plaintiff lecture notes. Other possibilities that might be especially suitable for a person afflicted with dyslexia are additional time for test-taking and allowing the student to dictate answers to essay questions." Seen in this light, the case states a claim for relief after all. Would Shaw have been able to articulate this theory of the case on his own? Probably not. His lawyer was able to do so, saving the case.

The Court of Appeals says that the jail should more fully review Shaw's request for accommodation through the prison grievance system. Counsel for the State is expected to make sure that appropriate prison officials promptly review Shaw's administrative request at the jail.

Abortion clinic protester's sentence might violate First Amendment

You don't see too much in the way of Seventh Amendment litigation these days. Here's one involving an anti-abortion protester who was convicted after a bench trial of violating the Freedom of Access to Clinic Entrances Act (FACE). He says that he deserved a jury trial. The Second Circuit disagrees. But it says the punishment might violate the First Amendment because the defendant has to stay 1,000 feet from abortion clinics.

The case is U.S. v. Dugan, decided on December 5. The Supreme Court says that under the Seventh Amendment, criminal cases get a jury trial if the defendant is charged with a "serious" and not a "petty" offense. The difference is that any offense that carries a maximum term of six months or less is presumed to be petty. You can overcome that presumption if additional penalties, such as a large fine, reflect a legislative determination that the offense is serious under the Seventh Amendment.

As the potential sentence for Dugan was six months, he can only win the appeal and get a jury trial if the fine is high enough under the Seventh Amendment. Although he faced a maximum penalty of $10,000, two other circuits hold that "FACE Act offenses like this one, i.e., nonviolent, first-time offenses, are not 'serious' and thus do not require a jury trial." The Court of Appeals agrees with those decisions and says that Dugan was not entitled to a jury trial.

For some reason, the Court of Appeals issues two decisions in this case. The jury trial issue gets a published opinion. The propriety of Dugan's sentence, though, gets a summary order. All the more strange since the summary order is a little more interesting, and the Court of Appeals says the punishment might violate the First Amendment. The district court ordered that Dugan cannot come within 1,000 feet of an abortion clinic. He was found guilty of blocking access to a clinic. "The testimony of the clinic’s security guard established that Puckett kneeled intentionally in front of the door to block it. ... The security guard testified that Puckett 'was kneeling directly in front of the door so the door could not have opened.' The security guard then indicated that the police arrested Puckett after he refused to move and that '[a]fter the police removed him . . . both staff and patients were able to enter into the clinic.'” OK, so Dugan is guilty. Is the penalty (stay away more than 1,000 feet from reproductive health facilities) excessive?

It might be. The Court wants the trial court to consider "whether the condition is narrowly tailored to serve a compelling government interest. Dugan had no prior notice that the condition might be imposed because it first was suggested in the government’s sentencing letter, submitted to the district court a day before the hearing and not copied to Dugan, who was proceeding pro se. On remand, the district court must determine whether the substantial limit on Dugan’s freedom of movement is 'reasonably related' to the government’s interest in deterring future violations of the FACE Act and in protecting the patients and staff of reproductive health facilities."

The Second Circuit also wants the district court to "consider Dugan’s history of protesting at reproductive health clinics, his First Amendment interests in free speech, as well as his statements that he has a 'duty' to prevent abortions. In addition, the district court must consider whether a stay-away distance of 1,000 feet (more than the length of three football fields) is narrowly tailored to the government interest where Dugan’s offense arose from the non-violent obstruction of a clinic entrance, and where, particularly in urban areas, the condition could significantly impede Dugan’s freedom of movement."

Supreme Court adopts "ministerial exception" to civil rights laws

The Supreme Court had a choice. It could honor Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination and retaliation, or it could honor the First Amendment, which prohibits government interference in the management of religious institutions. The Court unanimously goes with the First Amendment, identifying for the first time a ministerial exception to Title VII which prevents courts from resolving certain lawsuits against religious organizations.

The case is Hosanna-Tabor Evangelical Lutheran Church v. EEOC, decided on January 11. The plaintiff taught at a school that offered Christian-centered education, but her responsibilities include certain ministerial functions. After a dispute with her superiors over whether she could work despite her disability (narcolepsy), she threatened to sue for retaliation under Title VII. The Supreme Court says she can't do it under the ministerial exception. (The Second Circuit in 2008 adopted this exception in Rweyemamu v. Cole, 520 F.3d 198 (2d Cir. 2008)).

The Supreme Court has never had a case like this before, so it looks to the original intent of the Establishment Clause by drawing from decisions made by James Madison when he was both Secretary of State and President. Madison said that the government cannot tell religious organizations how to run their internal affairs. Older Supreme Court cases also hint at this in the context of disputes over church property. Chief Judge Roberts says that "[o]ur decisions in that area confirm that it is impermissible for the government to contradict a church' determination of who can act as its ministers." So here is the Court's holding in this case:

The members of a religious group put their faith in the handsof their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

Now, the plaintiff in this case was not technically a minister, but she did take on some ministerial responsibilities, like "conveying the Church's message and carrying out its mission," i.e., "leading others toward Christian maturity and teaching faithfully the Word of God, the Sacred Scriptures, in its truth and purity and as set forth in all the symbolical books of the Evangelical Lutheran Church." She was also "held out as a minister, with a role distinct from that of most of [the Church's] members." As plaintiff is a minister as defined by the Court, her calls falls under the ministerial exception, and she cannot proceed with the case.

So where does this leave us? What about church employees who are not ministers? Can they sue? The Supreme Court does not tell us, though it seems to broadly define who is a "minister" in defining the plaintiff's role. But the holding in this case is narrow; the Court says:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

Judge's private pow-wow with juror gets guilty defendant a new trial

What do you get when you put eight strangers in the same room together? At the U.S. Courthouse during a criminal fraud trial, you get madness, and a judge's ex parte meeting with a juror who complained that another juror threatened him with violence. All this prompts the Court of Appeals to grant the defendant a new trial because of the ex parte meeting.

The case is U.S. v. Collins, decided on January 9. The trial lasted for weeks, with 22 days of testimony. Jury deliberations took a while, too. They were marked by threats and raised voices which led a court security officer to see what was going on. Jurors began writing Judge Patterson notes complaining about the lack of collegiality and the possibility of a hung jury, which no one wants (except maybe the defendant) because that means you have to start all over again.

The juror notes are recited in the opinion. The Court of Appeals (Chin, Calabresi and Carney) focuses on the foreman's note that said Juror 4 might have been trying to barter his vote and Jurors 4 and 9 almost had an altercation. The note also said Juror 4 preferred a hung jury rather than "do further evidence research." This led the trial court to meet privately with Juror 4. Without the lawyers and the parties present, the judge told Juror 4 that his behavior was "not conducive to getting this matter resolved, and it is important to both parties that the matter be resolved." The juror said he was trying to deliberate but that it was hard to do his job when other jurors were calling him a "jerk" and "having my skin tone made fun of." The judge then told the juror to keep an open mind and try his best to deliberate. The jury went on to enter a guilty verdict on some of the charges.

New trial for defendant. This ex parte meeting amounted to a supplemental jury instruction, and it resembled an Allen charge, where a judge tells a deadlocked jury that it's important to reach a verdict. Supplemental jury instructions cannot be given outside the presence of counsel and their clients. This was not harmful error. Here's why, says Judge Chin:

We cannot say, with "fair assurance," that the district court's errors in this case did not substantially affect the verdict. The court singled out a dissenting juror, and emphasized to him the importance of reaching a verdict. We cannot ignore the possibility that Juror 4 walked out of the ex parte conference with the impression that he should not stand in the way of a prompt resolution of the case. Had the court initially shared the Note with counsel and solicited counsel's input before responding, any mistaken impressions might have been avoided.

Budget hotels denied injunction for lack of irreparable harm

The State of New York passed a law that makes it harder for property owners to rent hotel rooms for less than 30 days at a time. The idea was that building owners were circumventing strict fire safety standards applicable to hotels by renting out rooms for shorter periods of time under a loophole in the Multiple Dwellings Law. The state also wanted to prevent unfair competition to legitimate hotels and also to protect the rights of permanent occupants who have to live with short-term residents. A building owner challenged the law under the Takings Clause and sought an injunction. The district court denied the injunction, and the Court of Appeals agrees that the plaintiffs have not shown irreparable harm.

The case is Dexter 345, Inc. v. Cuomo, decided on December 5. Who knows if the plaintiffs have a legitimate Takings claim on the merits? The Court of Appeals does not address the merits. It finds that under the strict "irreparable harm" standard governing preliminary injunctions, the plaintiffs really only have monetary damages, which can be recouped at the end of the case. That's not irreparable harm. As the courts see it, monetary loss is not irreparable.

Plaintiff says it will suffer irreparable harm because it will lose goodwill with its customer base. The Second Circuit (Newman, Leval and Pooler) disagrees. The Dexter House has been operating since 1957 and Hotel Alexander since 2007. This is long enough for plaintiffs to calculate lost profits, based on previous rent figures. "The District Court correctly found that any loss of goodwill would result from the Appellants' inability to continue operating their budget hotel business as they had in the past. The long history of operation by both Appellants ensures that they will be able to calculate money damages for any loss of goodwill they may have suffered if a taking is found." This reasoning contrasts this case with those brought by less-established businesses who claim that calculating damages is too difficult and that the challenged regulation will destroy the business.

Plaintiffs also say that the new law will harm their reputation, as the law suggests that short-term budget hotels are unsafe and unwanted. But this kind of reputational harm is not irreparable, the Court of Appeals says. If plaintiffs are to get any damages, they have to endure discovery and a trial on the merits.

Circuit upholds $200k racial discrimination verdict under Section 1981

Here's an interesting racial discrimination case that produced a $200,000 jury verdict against a former police officer who hurled racial slurs at a black motorist and then initiated a fight with him, landing the plaintiff in a hospital. The Court of Appeals upholds the verdict under 42 U.S.C. sec. 1981.

The case is Wong v. Mangone, a summary order decided on December 6. The evidence showed that Mangone, a large white man, saw Wong, a black man, driving his car in Mangone's neighborhood. Mangone stuck his head in the window of Wong's car and made some vile racist comments about drug use and promiscuous sex by racial minorities. He basically told Wong to get the hell out of his neighborhood. Wong and Mangone then got into a fight. "The exchange quickly escalated to a physical fight involving a range of impromptu weapons, including the driver's side mirror of Wong's car, a circular saw, a metal pipe, a wooden broom handle, and a baton." Wong ended up face down on the ground. The facts were sharply disputed by the parties, but the jury awarded Wong $183,000 in compensatory damages and $17,000 in punitives.

The Court of Appeals (Cabranes, Livingston and Carney) upholds the verdict because there was enough evidence for the jury to find that Mangone violated Wong's right to be free from racial discrimination. What makes the case interesting is that Wong sued under Section 1981, which most of us associate with the right to be free from racial discrimination in contracts. Section 1981 is also used as an employment discrimination statute. But it also provides relief if you are denied the right "to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." Private individuals can violate Section 1981, which is how Mangone got sued. As the Second Circuit notes, "a section 1981 violation may occur when a private individual injures 'the security of persons and property' in violation of a state law, and does so with a racially discriminatory purpose.'" Wong can invoke Section 1981 because Mangone violated state laws prohibiting assault and battery, "which are clearly intended for the 'security of persons."

This is a little-known protection under Section 1981. The only cases cited in the Second Circuit ruling in this case are district court cases from the Southern, Eastern and Western Districts of New York. Normally, when the Court of Appeals stakes out new ground, it will publishe an opinion rather than issue a summary order. The Second Circuit obviously agrees with this interpretation of Section 1981. Although this is an "unpublished" ruling, the Court is giving the go-ahead for federalizing certain torts claims if they involve race and assault or battery.

First Department rejects pretext-plus in City HRL discrimination claims

Lawyers who litigate under the New York City Human Rights Law know that this statute provides broader protection for plaintiffs than its federal counterparts, Title VII and the Age Discrimination in Employment Act. A recent decision by the Appellate Division, First Department drives that point home in squarely rejecting the pretext-plus model adopted by some federal courts, including the Second Circuit.

The case is Bennett v. Health Management Systems, decided on December 20. The facts in this case do not look good for Bennett. Management claimed it fired him for losing focus and drinking on the job. Bennett says he was fired because of his race (white) and age. The First Department uses this routine case as a vehicle to outline the burdens of proof in disparate treatment cases under the City Human Rights Law, ruling as follows:

1. The Court reiterates the oft-stated mandate "to ensure the liberal construction of the City HRL by requiring that all provisions of the City HRL be construed 'broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.'" Under that test, while the First Department approves of the Supreme Court's McDonnell-Douglas burden-shifting procedure, it emphasizes that the fourth prong of the prima facie inquiry -- whether the plaintiff was terminated under circumstances creating an inference of discrimination -- not require the plaintiff to prove his entire case. The First Department's approach invokes the Supreme Court's observation that the prima facie inquiry is not supposed to be onerous. Moreover, and more important, the Appellate Division says that if the employer comes forward with a neutral reason for terminating the plaintiff's employment, the prima facie inquiry is not necessary:

a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out in the first place. Instead, the court should turn to the question of whether the defendant has sufficiently met its initial burden as the moving party of showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in the challenged action. We stop short of holding that there is never a circumstance under the City HRL where such an inquiry would be proper, but do conclude that such circumstances will be rare and unusual.

2. The Court rejects the pretext-plus model of proving discrimination. The Supreme Court says that if the employer comes forward with a false or pretextual reason why it fired the plaintiff, that does not compel the jury to find in the plaintiff's favor. The Supreme Court also said that the defendant can still get summary judgment in discrimination cases if the employer comes forward with a pretextual reason. (The First Department does not say this, but the Second Circuit usually looks for more than mere pretext for the plaintiff to win the case, usually evidence of disparate treatment or discriminatory remarks). But those Supreme Court cases interpreted Title VII, not the City HRL. The First Department says that under the City HRL,

Once there is some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete, a host of determinations properly made only by a jury come into play, such as whether a false explanation constitutes evidence of consciousness of guilt, an attempt to coverup the alleged discriminatory conduct, or an improper discriminatory motive co-existing with other legitimate reasons. These will be jury questions except in the most extreme and unusual circumstances.

. . .

We recognize that there has been a growing emphasis on using summary judgment in discrimination cases to promote "judicial efficiency." But at least in the context of the City HRL, the Restoration Act provides a clear and unambiguous answer: a central purpose of the legislation was to resist efforts to ratchet down or devalue the means by which those intended to be protected by the City HRL could be most strongly protected. These concerns warrant the strongest possible safeguards against depriving an alleged victim of discrimination of a full and fair hearing before a jury of her peers by means of summary judgment. In short, evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied.

 Ironically, after outlining a pro-plaintiff approach to reviewing summary judgment motions in discrimination claims brought under the City HRL, the First Department finds that Bennett cannot win before a jury. There was undisputed evidence that he slept and drank alcohol on the job and his work performance left something to be desired.

Bergstein & Ullrich strike down anti-leafleting law

A federal judge in White Plains has held that a municipal law that forbids windshield leafleting violates the First Amendment in the absence of any evidence that the prohibition serves the government interest of avoiding litter. The trial court awards summary judgment to the plaintiff on his as-applied challenge against the Town and also orders a trial against two police officers who allegedly told the plaintiff he could not engage in face-to-face leafleting at a Community Day in Putnam County.

The case is Robinson v. Town of Kent, 2011 U.S. Dist. LEXIS 149255, decided by Southern District Judge Seibel on December 29. Bergstein & Ullrich, LLP, represents the plaintiff. It all started when Ernest Robinson showed up at Town of Kent Community Day on September 13, 2009 to hand out provocative leaflets that criticized a local judge. When Robinson placed these leaflets under the windshield wipers of parked cars in the parking lot, a police officer ordered him to cease and desist under a Town law that prohibited this kind of leafleting. Robinson did as he was told and removed the flyers from the vehicles. When Robinson next went into the park where the Community Day was situated for the purposes of leafleting members of the community, he testified that two police officers told him he could not do that, either. He sued under the First Amendment.

The district court ruling is in two parts. On the windshield leafleting claim, Judge Seibel adopts the reasoning of the Seventh, Eighth and Ninth Circuits, which hold that the "time, place and manner" test requires the government to prove that the windshield anti-leafleting law is justified by concrete littering concerns. (The Sixth Circuit went the other way on this issue). This makes Robinson v. Town of Kent the first case in the Second Circuit to strike down such a law, as the Town is only able to speculate that the need to prohibit littering outweighs the First Amendment right to leaflet. The Court states, "[t]he Town has not carried its burden. It has not shown either the reasons for the law's passage in 1973 or established a factual basis for concluding that leafleting on vehicles causes the problems the Town asserts. Although this Court can imagine an ordinance like Section 45-12 being justifiable, the Defendants in this case have not shown that the justifications apply here."As the law violates the First Amendment, the Town is liable because the police invoked it in telling Robinson to stop leafleting parked windshields. Robinson is granted summary judgment.

Robinson also claims that when he then went over to the public park where the Town was hosting Community Day, the police told him that he could not leaflet people face-to-face. Although the police deny that allegation, if the jury believes Robinson's testimony, then he wins that portion of his First Amendment case as well. That part of the case goes to trial.