The right to lie through your teeth (even losers have rights)

I know the Earth spun off its axis this morning when Chief Justice Roberts announced his surprising swing vote with the liberals on the constitutionality of mandatory health insurance. But lost in the shuffle was another decision from the Court on Thursday: the right to lie about your non-existent military record. The word on the street these days is that, when it comes to free speech, anything goes. That's certainly true at the Supreme Court.

The case is United States v. Alvarez, decided on June 28. The "Stolen Valor Act" says you cannot lie about having received military medals. That's what Alvarez did. Writing for the Court, Justice Kennedy thinks Alvarez is a loser. This is what Kennedy writes:

Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. ... In 2007, respondent attended his first public meeting as a board member of the Three Valley Water District Board.The board is a governmental entity with headquarters in Claremont, California. He introduced himself as follows: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.” None of this was true. For all the record shows, respondent’s statements were but a pathetic attempt to gain respect that eluded him. The statements do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal.

Justice Kennedy does not normally use this kind of colorful language. But whatever he thinks of Alvarez, this guy cannot be prosecuted under the law. Free speech means you can lie about things like this so long as you are not trying to gain any governmental benefits from the untruths. There are many ways the government can restrict speech, but for the most part it cannot do so on the basis of content. That means that while the government can stop you from inciting to riot or defaming someone or agreeing to commit a crime, it cannot otherwise pick and choose what people can say. That's why you can burn the flag or protest at a military funeral. It's also the reason the Supreme Court in Citizen's United lifted all restrictions on corporation campaign expenditures, which also qualify as speech.

The Stolen Valor act restricts speech on the basis of content in that the government disapproves of bullshit artists like Alvarez. It's easy to see how a law like this got passed. It was 2005 and patriotic fervor was running strong as solders were fighting in Iraq and Afghanistan and the embers of 9/11 were still smoldering. That fervor is still there. Just watch the seventh inning stretch on TV at Yankee Stadium.  

While this may have been a popular law, it fails. Justice Kennedy is actually one of the more pro-speech Justices on the Court. He recognizes what Congress was trying to do when it passed the Stolen Valor Act. But he's not buying it:

The Government defends the statute as necessary to preserve the integrity and purpose of the Medal, an integrity and purpose it contends are compromised and frustrated by the false statements the statute prohibits. It argues that false statements “have no First Amendment value in themselves,” and thus “are protected only to the extent needed to avoid chilling fully protected speech.” Brief for United States 18, 20. Although the statute covers respondent’s speech, the Government argues that it leaves breathing room for protected speech, for example speech which might criticize the idea of the Medal or the importance of the military. The Government’s arguments cannot suffice to save the statute.

You need a compelling reason to restrict speech on the basis of content. The government says it has a compelling interest in preserving the integrity of military medals. But the government has not shown that the law is necessary to achieve any legitimate governmental interest. "The Government points to no evidence to support its claim that the public’s general perception of military awards is diluted by false claims such as those made by Alvarez. ... As one of the Government’s amici notes 'there is nothing that charlatans
such as Xavier Alvarez can do to stain [the Medalwinners’] honor.' Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 1. This general proposition is sound, even if true holders of the Medal might experience anger and frustration." In addition, the Court says, the way to counter falsehoods is through more speech. Kennedy writes, "The facts of this case indicate that the dynamics of free speech, of counter speech, of refutation, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements 'Alvarez was perceived as a phony.' Once the lie was made public, he was ridiculed online."

More broadly, there is no line of cases generally allowing the government to restrict false statements. Rather, falsehoods are inevitable in a world that values open speech. Justice Kennedy concludes, "The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection.Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more." He adds, "Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003)." And:

Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

No speech rights for police officer who exposed official misconduct

The public whistleblower has few rights under the First Amendment these days. The Supreme Court's Garcetti decision in 2006 said that any speech arising from the employee's official job duties is not protected under the Constitution, and management is free to do whatever it wants to the employee in response to that speech. Since, then few Garcetti cases have survived in the Second Circuit. This case does not change anything.

The case is Matthews v. Blumenthal, a summary order decided on May 24. Matthews worked for the Connecticut State Police Internal Affairs unit. He was responsible for investigating police misconduct. While performing his duties, plaintiff "learned that the Connecticut State Police covered up officer misconduct, which included the commission of crimes, driving while intoxicated, and misuse of funds." After plaintiff disclosed this misconduct to the Attorney General and other public authorities, "superior officers in the Connecticut State Police, allegedly retaliated against Appellant for making these disclosures." Now, this case was dismissed under Rule 12, so no one had the opportunity for any discovery or cross-examination, but if Matthews' allegations are true, it sounds like he got a raw deal for protecting the public interest.

A raw deal perhaps, but this retaliation is legal, at least under the First Amendment. Matthews spoke out pursuant to his official job duties. As the Second Circuit (Wesley, Lohier and Droney) says, "appellant’s complaints to outside agencies were 'part and parcel' of his ability to properly execute his duties–i.e., enforce the law and effectively combat police misconduct. ... Appellant’s additional concession at oral argument that he first reported the misconduct up his chain of command further supports our  determination that he was acting pursuant to his employment duties."

Some police officers do have rights under the First Amendment to speak on certain work-related matters, but the one Second Circuit case that ruled in favor of an officer post-Garcetti arose under facts that may not arise again anytime soon: an officer's affirmative refusal to falsify an excessive force report that implicated a sergeant. These cases are otherwise being dismissed left and right, producing the ultimate anomaly: prison inmates have more First Amendment rights than the officers who arrested them.

Advice from disbarred attorney not per se ineffective under Constitution

See, once you get convicted of some crime, you go to the slammer and start thinking about how to get out of jail. One solution is a habeas corpus petition claiming ineffective assistance of counsel. You know, "my lawyer slept through trial" or "jury selection was unfair." That might work. How about this one: "my lawyer was disbarred when he took on my case."

The case is Elfgeeh v. United States of America, decided on May 23. Elfgeeh plead guilty to operating and conspiring to operate a money transmitting business without a license. Then he fired his lawyer and hired Burton Pugach, who had been disbarred in 1960. That's right, disbarred 43 years earlier! Elfgeeh did not know this, though. Elfgeeh paid Pugach money to vacate the guilty plea. Elfgeeh, meanwhile, used a licensed attorney, Frank Hancock, to actually advise Elfgeeh. Usually, Elfgeeh met with Hancock and Pugach at the same time. As the Second Circuit (Raggi, Winter and Chin) puts it:

Appellant described these meetings as ones in which Hancock spoke very little, often only to express agreement with Pugach, pose a legal question, or advise Pugach to explain a particular point to appellant. Hancock was also aware that Pugach and appellant had discussed matters relating to the case and would often decide the course of action before speaking with Hancock. Nevertheless, Hancock signed all documents filed with the court, and only Hancock appeared on behalf of appellant at court proceedings, other than one instance where Pugach informed the court that Hancock was unavailable.

The trial court denied Elfgeeh's motion to vacate the plea, but it vacated the plea anyway, for other reasons: the magistrate judge did something wrong in handling the guilty plea. It was a big mistake for Elfgeeh to try to re-open the case. The government would not make a new plea offer, and Elfgeeh lost his trial and was given 188 months' incarceration, more than twice as long as the incarceration under the initial guilty plea.

The habeas petition argues that Elfgeeh relied on legal advice from a disbarred attorney. The issue is "whether a per se ineffectiveness rule applies when a defendant, although having a licensed attorney of record, relies on the advice of a disbarred attorney." The answer is no. While Elfgeeh argued that Pugach was his "de facto attorney," at all times, Hancock was legally advising Elfgeeh, signing all papers and appearing for him in court. Had Pugach been the only one advising Elfgeeh, he would win the habeas petition. But he was not. (By the way, Hancock was later disbarred for aiding in the unauthorized practice of law through Pugach). The Second Circuit concludes,

A court cannot -- and, where a decision is one for the client to make, should not -- ensure that a defendant accepts advice only from his attorney of record. Indeed, many defendants may well take advice from friends or family, including persons claiming legal knowledge, when deciding to accept or reject a plea agreement, to testify at trial, etc. These decisions are for the defendant to make, after receiving the informed advice of licensed counsel. That advice may be defective, even non-existent, but the Strickland two-prong test is fully adequate to protect defendants in such cases. ... If a per se ineffectiveness rule joined with a de facto attorney claim were adopted, defendants such as appellant would have great incentive to claim reliance on advice from unlicensed sources. The extent of such reliance would almost always be indeterminable, and the claimed reliance would, in and of itself, tend to constitute the advisor as a de facto attorney.

Long live the fleeting expletive

The media seems disappointed that the Supreme Court did not hold in the "fleeting expletives" case that FCC rules prohibiting profanity on network television inherently violate free speech. Instead, the Court said that the FCC's rules allowing the agency to punish the networks for unanticipated foul language from celebrities violate the First Amendment's requirement that we receive fair notice of the rules before the government can punish us.

The case is FCC v. Fox Television, decided on June 21. It all started when Cher, Bono and others used the F-word and other profanities on television during award ceremonies. This was unscripted. The FCC reprimanded Fox Television for this. It also fined ABC Television over $1 million. These punishments are overturned by a unanimous Supreme Court.

We all know that the networks cannot allow premeditated cursing on television. When George Carlin did this in the 1970s on WBAI radio (the "7 dirty words"), the FCC punished the station, and the Supreme Court said that the FCC may impose these rules on the public airwaves. At some point, however, the FCC decided that "fleeting expletives" also violate FCC rules. However, it was not clear to the networks that the rules had changed. When the FCC therefore sanctioned Fox and ABC Television, it did so without providing fair notice that "fleeting expletives" run afoul of the rules. That violates the First Amendment.

A side legal note: the Supreme Court notes that Fox Television was not financially sanctioned. The FCC said this should get the agency off the hook; sort of a no-harm-no-foul. But the Court does cry foul. The FCC could use the non-monetary sanction against Fox in the future in imposing future penalties. In addition, the Court notes that the sanction caused Fox the suffer "reputational injury." The Court explains:

As respondent CBS points out, findings of wrongdoing can result in harm to a broadcaster’s “reputation with viewers and advertisers.” This observation is hardly surprising given that the challenged orders, which are contained in the permanent Commission record, describe in strongly disapproving terms the indecent material broadcast by Fox. Commission sanctions on broadcasters for indecent material are widely publicized. The challenged orders could have an adverse impact on Fox’s reputation that audiences and advertisers alike are entitled to take into account.

Is this reasoning realistic? Does anyone hold it against Fox that someone used foul language on television? Who knows. But this language may be useful in other contexts, i.e., employment discrimination cases, where the plaintiff suffers no monetary damages but instead points to other harms that may either hurt the plaintiff down the road or cause reputational harm among colleagues or future employers.

Another side note: it is obvious that Justice Kennedy is not comfortable using the F-word (among other profanities) in published Supreme Court rulings. He instead writes "F***" and "S***."  My research shows that the Supreme Court has said "fuck" in nine cases, most recently in 1993. The first time they did this was in 1971, in holding that an anti-war guy could walk through a California courthouse with a jacket that said "fuck the draft." The first time any federal court used the F-word was in 1966, when a district court in California ruled on whether the government could prosecute a "nudie" peep show. In case you were interested.

A final side note: Justice Ginsburg would overturn the George Carlin case that said the FCC may prohibit obscenities on network television. She says that case, FCC v. Pacifica Foundation, 438 U.S. 726 (1978), was wrongly decided back then, and that it makes no sense today in light of technological advances. She probably means that with all the cable channels we have today, there is no functional difference between the public (no cursing allowed) and private airways, where profanity is rampant. Any 10 year-old with a remote control could tell you that.

No en banc review in child caseworker liability case

The Second Circuit will not hear en banc a case holding that an abusive father can sue a caseworker under Section 1983 for unlawfully entering his home under a bad warrant and seizing his at-risk children. The Court of Appeals hears very few cases en banc, but we can usually count on interesting and provocative opinions that dissent from the refusal to hear the case en banc. This case is no exception.

The case is Southerland v. City of New York, originally decided by the Court of Appeals in June 2011. A three-judge panel held that a caseworker who entered Southerland's home on a warrant containing inaccurate information about his children could not invoke qualified immunity. That entry caused the caseworker, Timothy Woo, to seize six other at-risk children. Here's my summary of the case from June 2011:

Investigator Woo was assigned to the case after one of the Southerland daughters, Ciara, was behaving strangely in school. Woo came to the house and claimed that the Southerland's children were living in squalor; Southerland strongly disputed this characterization. Concluding that their safety was threatened, Woo removed the children from their home and sent them to foster care. While Kings County Family Court concluded that Southerland had abused and neglected his children and sexually abused Ciara, none of this damning information was in Woo's possession when he entered the home and took away the kids. For that reason, the Second Circuit (Sack, Kearse and Hall) disregards the Family Court's findings in determining whether Woo violated the Constitution.

Five active judges on the Second Circuit (Raggi, Cabranes, Jacobs, Livingston and Wesley) want the court to hear the case again. I guess you could call this the conservative wing of the Second Circuit. Two of those judges issue opinions dissenting from the court's refusal to hear the case en banc.

Judge Raggi says that "in allowing an adjudicated abusive father and the children he abused to sue a caseworker for prematurely halting the abuse, the panel extends our due process precedent in a way that the court should reject en banc. ... Recognizing a viable claim for money damages in such circumstances risks bringing the law into disrepute. Further, it endangers future abuse victims by unnecessarily deterring caseworkers from promptly intervening for fear of being liable for money damages, not only in cases where no parental abuse or neglect is established but also in cases where courts conclusively determine that it is." She concludes:

Rather than allow this case to go forward, this court should clarify two principles of law: (1) there is always probable cause to look for an at-risk child in the home of his or her custodial parent, at least absent conclusive evidence to the contrary; and (2) once a parent has been adjudicated to have so abused and neglected his children as to be denied custody, neither the adjudicated abusive parent nor the children he abused can sue the caseworker who effected the initial removal for money damages based on due process or Fourth Amendment claims that the removal was premature. With these principles clarified, there is no question that the defendant caseworker, Timothy Woo, is entitled to summary judgment on the ground of qualified immunity.

Judge Jacobs also dissents, slamming cases like this that unfairly subject public servants to personal liability for doing nothing wrong. In this case, he says that the original panel decision "has jumped the rails." For those of you who go straight to Justice Scalia's dissenting opinions in reading Supreme Court cases, Chief Judge Jacobs is the Second Circuit counterpart. Here are some highlights:

Nothing can account for such an opinion and result except the panel’s tacit assumption that Mr. Woo is merely a nominal defendant, that the City of New York will take on his defense and indemnify him for any judgment, and that litigation like this is not really a claim against the individual but is in effect an instrument for developing ever more ramified constitutional principles and for policing governmental compliance with these constitutional developments. This is an almost-complete misconception of Section 1983 claims against individuals. An individual defendant has at stake his savings, his pension, the equity in his home, the kids’ college fund: This should tell us something about the threshold of liability.

...

The panel’s opinion and the assumptions that animate it have effects that reach beyond Mr. Woo and the City of New York as his employer: There is a substantial and direct impact on public safety. ... When the panel opinion in this case is considered together with DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), holding that state officials have no constitutional duty to protect children against domestic abuse, a perverse incentive is created. A child welfare worker is shielded from liability when she recklessly fails to protect abused children, but she is exposed to personal liability when she acts in good faith to protect them.

...

The panel would send Mr. Woo to a jury for an assessment of his liability and the damages he should pay. I would shake his hand.

Pro se inmate defeats U.S. Attorney's office in Muslim prayer appeal

Congress enacted the Prison Litigation Reform Act in the mid-1990s because they wanted to curb inmate litigation. Before they bring a lawsuit, prisoners now have to file an internal grievance with the jail. Once the grievance is denied, inmates can sue in court. Once consequence of this procedure is that lawsuits are sometimes dismissed because the inmate did not exhaust his administrative remedies. That happened here. But the Court of Appeals reverses, reinstating the case.

The case is Johnson v. Killian, decided on May 16. Johnson was locked up at Otisville Correctional Institution. His Muslim prayer ritual required him to pray five times a day, but the jail said he could only do it once a day. The jail also limited where these prayers could take place. He brought an internal grievance in 2005, which the jail denied. Otisville later revised its policy. All was good for Johnson.

All was good for Johnson until 2007, when a new warden came to Otisville. He reimplemented the old policy, again limiting Johnson to one prayer a day. Bummer for Johnson! He took his case to federal court without filing a grievance. The district court threw out the case because Johnson did not file a grievance before suing in court.

The Court of Appeals (Calabresi, Cabranes and Chin) reverses and reinstates the lawsuit. What makes this so unusual is that Johnson handled his appeal pro se and defeated the United States Attorney's office. He wins the appeal because the first grievance, back in 2005, was identical to the 2007 one and therefore good enough to put the jail on notice that Johnson was aggrieved. The second grievance, two years later, was unnecessary because it would have been redundant.

The F-word and union buttons

This case tells us that Starbucks doesn't want its employees unionized. The National Labor Relations Board found that Starbucks committed unfair labor practices in the course of its anti-union campaign in Manhattan. Starbucks did not challenge all the NLRB's negative findings, but it does succeed in overturning the ones that it does challenge.

The case is National Labor Relations Board v. Starbucks Corporation, decided on May 10. Here are the violations that Starbucks committed (and does not challenge in the Second Circuit): "prohibiting employees from discussing the union or the terms and conditions of their employment; prohibiting the posting of union material on bulletin boards in employee areas; preventing off-duty employees from entering the back area of one of the stores; and discriminating against pro-union employees regarding work opportunities." And you thought Starbucks was a hip and happening place. But while the NLRB found that Starbucks violated the labor laws in preventing employees from wearing more than one pro-union button at work, the Second Circuit (Newman, Katzmann and Winter) says this was legal.

The Starbucks dress code tells me that Starbucks is as corporate as any other business. "The purpose of the dress policy, according to Starbucks's employee handbook, is to ensure that partners 'present a clean, neat, and professional appearance appropriate of [sic] a retailer of specialty gourmet products.' Additionally, Starbucks encourages employees to wear multiple pins and buttons issued by Starbucks as part of its employee-reward and product-promotion programs. The ALJ found that many of the adornments worn by employees are not obviously related to employee programs, and that the resulting public image is of a uniformed employee wearing a variety of unrelated pins and buttons on their hats and aprons."

Starbucks told employees that it could not wear more than one pro-union button. While the NLRB said this was an unfair labor practice, the Second Circuit disagrees. True, employees are allowed to wear union insignia at work. But Starbucks complains that the NLRB's ruling allows employees "to wear an unlimited number of buttons and would convert them into 'personal message boards' and 'seriously erode' the information conveyed by Starbucks-issued pins." Individuality is not valued at Starbucks; the corporate message is. The Court of Appeals says:

We conclude that the Board has gone too far in invalidating Starbucks's one button limitation. As the Board has previously recognized, "Special circumstances justify restrictions on union insignia or apparel when their display may . . . unreasonably interfere with a public image that the employer has established." Starbucks is clearly entitled to oblige its employees to wear buttons  promoting its products, and the information contained on those buttons is just as much a part of Starbucks's public image as any other aspect of its dress code. But the company is also entitled to avoid the distraction from its messages that a number of union buttons would risk. The record reveals that one employee attempted to display eight union pins on her pants, shirts, hat, and apron. Wearing such a large number of union buttons would risk serious dilution of the information contained on Starbucks's buttons, and the company has a "legitimate, recognized managerial interest[]" in preventing its employees from doing so. The company adequately maintains the opportunity to display pro-union sentiment by permitting one, but only one, union button on workplace clothing. Starbucks has met its burden of establishing that the one button restriction is a necessary and appropriate means of protecting its legitimate managerial interest in displaying a particular public image through the messages contained on employee buttons.

Another ruling in the case sheds light on how far employees may go in raising hell in the workplace. An employee, Agins, "was discharged primarily for his use of obscenities in an outburst during an organized protest  of Starbucks's restrictive button policy." This outburst took place in front of customers and employees. Agins (who was identified as a union activist in Starbucks' internal memoranda) ran into a manager who was a customer that day. The supervisor, Yablon, had serious issues with Agins."Yablon engaged Agins in a conversation about his union pin and whether Starbucks employees really needed a union. At some point, Agins spoke of Yablon's alleged insult to his father, and the conversation became heated. Both men used hand gestures, spoke loudly, and used obscenities. Agins admitted that he told Yablon, 'You can go fuck yourself, if you want to fuck me up, go ahead, I'm here.' Agins's fellow supporters then intervened to stop the argument, and he withdrew with them to a table while James approached Yablon and told him to 'leave it alone.' Yablon then left the store."

What I love about this case is that the administrative law judge actually held that Agins was fired for union-related activity because his profane outburst arose from a "discussion that was primarily about the union." The Second Circuit is not so sure. Starbucks has a legitimate interest in preventing profane outbursts in the workplace in the presence of customers. On the other hand, the case law governing outbursts like this in the workplace is not clear. Here's the issue:

Whether an employee's outburst in which obscenities are used in the presence of customers loses otherwise available protection if the employee is off duty although on the employer's premises.

On the one hand, it is arguable that section 7 never protects an employee who uses obscenities in the presence of customers, even when discussing employment issues, whether or not the employee is present as an identifiable employee or only as a customer. On the other hand, it is also arguable that section 7 withdraws protection from an employee discussing such issues and using obscenities only when the employee is identifiable by customers as an employee, e.g., in a work uniform. Although an employer has the undoubted right to remove from a store any person, including an employee, who causes a disturbance likely to risk loss of customers, the discharge of an employee has more serious and long-lasting consequences for the employee than a demand that a customer or an employee leave the premises. 

What I really love about this case is that the employee who used the F-word in an outburst toward another Starbucks manager in front of customers might actually be allowed to do so. The Second Circuit sets out the ground rules for a case like this, outlined above. The NLRB has to reconsider its ruling in light of these rules.

New York's kosher labeling law is kosher

The State of New York passed a law in 2004 that imposes requirements on sellers and manufacturers that market their food products as "kosher." One requirement is that kosher foods be labeled as such. Also, the guy who certifies the food as kosher has to be identified to state authorities. The law does not define "kosher" or authorize state inspectors to determine the kosher nature of the products. A business in Commack, Long Island, challenges the constitutionality of this law. The Court of Appeals says it's constitutional.

The case is Commack Self-Service Kosher Meats v. Hooker, decided on May 10. The plaintiffs challenge this law under the Establishment Clause, which requires that laws have a secular purpose and not advance any particular religion. Laws also cannot allow the government to entangle itself with religion. This law has a secular purpose; many non-Jews eat kosher foods these days, the Court of Appeals (Walker, Lynch and Droney) says. "Thus, the legislative history is clear that the labeling law has the secular purpose of protecting against fraud by informing a consumer that a particular seller believes a product is kosher."

While the plaintiffs also argue that the Kosher Act entangles the state with religion because it requires kosher goods to have a kosher label, the Second Circuit disagrees. The law does not define what is kosher. "The label simply indicates to the consumers that the seller or producer, and its certifier, believe the food to be kosher under their own standards. ... Thus, the Kosher Act does not entangle the State with religion because it does not require the State to enforce laws based on religious doctrine or to inquire into the religious content or religious nature of the products sold." For mostly these reasons, the law also does not advance religion. It "requires a seller of kosher products to label those products held out as kosher." The government is not taking sides on which religious requirements are appropriate.

For similar reasons, the Court also rejects the plaintiffs' Free Exercise Clause challenge. The law is neutral and applies to everyone, so any infringement on religious practices is legal under Supreme Court precedent. The law "applies to any seller who offers products for sale as 'kosher' regardless of the seller's religious belief or affiliation." While a law can violate the Free Exercise Clause if the legislature intended to burden a particular religious practice, that did not happen here. The statute does not allow state inspectors to verify if in fact the good is kosher, and the producer can classify the food as kosher based on his own standards. Anyone can designate the food as kosher. According to the Court of Appeals, all the state wants to do is prevent "fraud in the kosher marker by identifying, for the benefit of consumers, which products are being marketed as kosher, and the basis they are asserted to be so, in order to enable consumers to make their own decisions as to whether to accept teh assertion according to their own religious or non-religious standards. The law is kosher under the Constitution.

Videotape kills off disputed excessive force claim

There was no YouTube when the Constitution was created. And there were no cell phones when the federal courts first recognized a cause of action for excessive force in violation of the Fourth Amendment. The courts change with the times, though, which is why the Supreme Court in 2007 said that trial courts may credit video evidence on motions for summary judgment in excessive force claims.

The case is Kalfus v. City of New York, a summary order issued on April 13. In the old days, excessive force cases could easily go to trial on the say-so of the plaintiff if he testified that the officers beat the hell out of him, no matter what the police officers said. But if a video camera or even someone's cell phone happens to catch the dispute, then the court can see what happened and resolve the case on summary judgment.

In this case, Kalfus was a freelance photographer for the New York Post who hung around New York Presbyterian Hospital hoping to photograph Joe Torre, who was visiting his brother Frank Torre, who was getting a kidney transplant. Frank and Joe Torre both played major league baseball. Anyway, a hospital security offer told Kalfus to leave because he was on private property.

The district court summarized the competing stories in a way that would have probably resulted in a trial based on disputed factual issues: "The parties have differing perspectives regarding what occurred during the escort of Plaintiff to the SCC. The video, from a variety of security cameras, depicts the Officers behind Kalfus leading him to the SCC. The Officers contend that Plaintiff was insubordinate, and that by struggling and resisting, Plaintiff made the walk unnecessarily difficult. Plaintiff, on the other hand, asserts that he never resisted; and on the contrary, that he feared for his safety because he did not know where he was being led and because the officers were pulling him in different directions. The audio contains what might be characterized as "shrieks" and "screams" from Kalfus while being escorted to the SCC."


Here's how the Court of Appeals (Sack, Droney and Raggi) sees it:

Kalfus was again told by hospital patrolmen to leave hospital property. He refused, repeatedly making snide and sarcastic statements, and threatening legal action. The patrolmen then sought to arrest Kalfus for trespass, and to restrain him by handcuffing his hands behind his back. Kalfus attempted to evade handcuffing. He did not attempt to flee.

The patrolmen pushed Kalfus on to his stomach in order to handcuff him, which they then did by pulling his arms up behind his back. They then stood him up and walked him across the street to another building, where the main hospital security office was located. Eventually Kalfus was handed over to the New York City police.

The Court of Appeals affirms summary judgment. A security video caught the entire encounter. At page 6 of the ruling, the Court of Appeals links to the video, embedded on its website for us to see for ourselves. I don't think the Second Circuit has done this before. The confrontation starts at around 2:30. It looks like the police have to take Kalfus down twice. The Court says, "[t]he video further shows that to effect the arrest, officers turned Kalfus onto his stomach, pulled his arms behind his back, placed handcuffs on him, and lifted him onto his feet by pulling on his upper arms, sweatshirt, and waist. No reasonable factfinder could conclude that such actions were excessive in the circumstances." Take a look at the video.

For Section 1983 junkies only

The Supreme Court the other day held that an anti-war plaintiff cannot sue Secret Service agents under the First Amendment for a retaliatory arrest if there was probable cause to arrest him on something else, harassment. The case arose when the plaintiff made a smart-mouth comment to then-Vice President Cheney about the Iraq war. As I wrote here, the Court did not say that the Secret Service agents did not violate the free speech clause. Instead, the Court said that the law relevant to his case was not "clearly established" at the time of the alleged speech violation for plaintiff to be able to sue the agents.

The case is Reichle v. Howards, decided on June 4. Apart from the fact that the Court rules against the free speech plaintiff, there is an interesting side note to this case for those of you who litigate Section 1983 cases. Public employees, including police officers, are entitled to qualified immunity from suit if the law was not clearly established. If the state of the law was murky at the time of the events giving rise to the case, then the defendant cannot be sued for money damages. This is because courts deem it unfair for these defendants to pay damages when the case law was in a state of flux at the time. So, while the First Amendment says what it says about the right to free speech, for the plaintiff to overcome a qualified immunity challenge, he must find a case that says that what specifically happened to him was illegal. He does not have to find a case on all fours to repel qualified immunity; he must only find cases that would make it apparent that the defendant broke the law.

In this case, the Supreme Court noted that the case arose in the Tenth Circuit, which had ruled in plaintiff's favor. The Supreme Court reviewed whether Tenth Circuit case law had clearly established that plaintiff could sue the Secret Service for a retaliatory arrest in violation of the First Amendment where there was probable cause to arrest for something else. Justice Thomas writes:

We next consider Tenth Circuit precedent. Assuming arguendo that controlling Court of Appeals' authority could be a dispositive source of clearly established law in the circumstances of this case, the Tenth Circuit's cases do not satisfy the "clearly established" standard here. 

See the "assuming arguendo" language? It piqued my interest. Most, if not all Circuit courts -- including the Second Circuit -- look to Supreme Court and Court of Appeals precedent in determining whether the law was clearly established. But the Supreme Court has never approved or disapproved of that approach. The Court has never said which body of case law governs whether the law was clearly established. In Harlow v. Fitzgerald, 457 U.S. 800, 819 n. 32 (1982), the Supremes said, "we need not define here the circumstances under which 'the state of the law' should be 'evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District Court.'"

The Court has never returned to this issue of which body of case law governs the "clearly established" inquiry. This is an important issue. The Supreme Court hears far fewer cases than any of the Courts of Appeal. If Supreme Court authority is the only basis to find that the law was clearly established, fewer plaintiffs might be able to recover damages. On the other hand, there are hundreds if not thousands of cases decided by each Court of Appeals on a given issue, giving plaintiffs a larger pool of cases to draw from in arguing that the law was clearly established at the time of the alleged constitutional violation. One of these days, the Supreme Court will take up that issue. For now in the Supreme Court, the law of "clearly established" law is not clearly established.

This lawsuit could've been a lot of fun ...

 ... but it won't be. Blame qualified immunity. In this case, the Supreme Court unanimously holds that an anti-war plaintiff cannot sue Secret Service agents for retaliatory arrest under the First Amendment. While the Supreme Court has never said whether you can -- or cannot -- bring a lawsuit like this, the Court says the state of the law was too murky at the time of his arrest to allow the plaintiff to sue the agents for damages.

The case is Reichle v. Howards, decided on June 4. Howards saw Vice President Dick Cheney at a public event in 2006. Of course, Secret Service were standing by. One of them heard Howards tell someone else that he was going to ask Cheney how many children he killed today, a reference to the Iraq war. The agents then monitored Howards closely. The Court writes, "when Howards approached the Vice President, he told him that his 'policies in Iraq are disgusting." Howards then touched Cheney and walked away. When the Secret Service asked Howards if he touched (or "assaulted") Cheney, Howards falsely denied doing so. Howards was arrested for harassment, but the charge was later dropped.

So can Howards sue the Secret Service under the First Amendment for retaliatory arrest? There was probable cause under the Fourth Amendment to arrest him for harassment. But free speech retaliation under the First Amendment is another animal, right? Maybe not. This is where qualified immunity comes in. Under qualified immunity, public officials cannot be sued for damages if the law was not clearly established at the time. This is because police officers cannot be expected to be legal scholars, able to predict how the courts are going to interpret certain behavior under the Constitution. What muddied the waters in this area was the Supreme Court's decision in Hartman v. Moore, 547 U.S. 250 (2006), which said that retaliatory prosecution cannot proceed under the First Amendment if the charges are supported by probable cause. While prosecution is a little different from arrest (prosecutors are immune from all suits and do not arrest the defendant, while police officers who do make arrests may be sued directly for constitutional violations), it's close enough that Secret Service officers might reasonably think that the Hartman case protected them from any First Amendment violations.This means that Howards' case dies at the alter.

What makes cases like this maddening is that the Supreme Court does not have to find that there actually was a constitutional right before deciding that the law was not clearly established. As the Supreme Court says in this case, "to be sure, we do not suggest that Hartman's rule in fact extends to arrests." If it wanted to, the Court could say that Howards' rights were violated under the First Amendment, but that the Secret Service officers had no reason to know that because the Supreme Court had never said that this conduct violated the First Amendment. Had the Court said that in this case, it would set the stage for the next such lawsuit to go forward, even if Howards' suit could not proceed. The next guy who sustains a retaliatory arrest, then, could bring a claim on the basis that the Howards case said this conduct violates the First Amendment. The Court does not do that, which means the law remains as murky as ever.

First Amendment does not protect police speech against arrest quotas

The highway is strewn with discarded Garcetti cases that failed to live up to the high standards set by the Supreme Court and Second Circuit governing public employee whistleblower retaliation cases. Here's another one.

The case is Matthews v. City of New York, a Southern District of New York case decided on April 12. Under Garcetti v. Ceballos, 547 U.S. 410 (2006), public employees may be retaliated against unless their speech relates to a matter of public concern and is not pursuant to their official job duties. The "public concern" angle is easy to prove. The "official job duties" angle is a killer. Here, the plaintiff police officer complained to his superior officers about a quota system "mandating numbers of arrests, summons, and stop-and-frisks." Matthews was given punitive job assignments and bad performance evaluations in retaliation for this speech. The jury would love this guy, but Matthews will never see a jury in this case. The district court said that his speech was pursuant to his official job duties. Case dismissed.

Two cases guide the outcome: Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), and Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011). Weintraub interprets Garcetti to mean that public employee speech is unprotected if it is "part and parcel" of the plaintiff's ability to do his job. Judge Jones holds, "Matthews' complaints to his supervisors are consistent with his core duties as a police officer, to legally and ethically search, arrest, issue summonses, and -- in general -- police." Although plaintiff was not required to speak up this way, that does not save his claim under Second Circuit precedent.

This is what Garcetti gets us these days. Certainly, Matthews' speech touched on a matter of public concern. The proper functioning of a police department, particularly if the department is using quotas and questionable tactics, is a matter of public interest. But the speech too closely relates to plaintiff's everyday job duties. Under Garcetti, Matthews' case is pitched aside.

Matthews argued that his case is closer to Jackler, one of the few cases that survived a Garcetti challenge in the Second Circuit. In Jackler, the Court of Appeals said that a police officer had a case when he refused to falsify a report that implicated a sergeant in police brutality, as that speech had a civilian analogue and was therefore more like citizen speech than official duty speech. But Judge Jones interprets Jackler narrowly. In Jackler, the officer's initial report that told the truth about an act of brutality that he witnessed was official duties speech; it was his refusal to later falsify that report that had a citizen analogue and was therefore protected speech, and it "was only related to his job duties," Judge Jones says. The rule in this case is that "if a public employee is speaking 'pursuant to' his duties, there is no civilian analogue to that speech."

No deadly force jury charge in wrongful death case against the police

If you lose the trial, and you really must take up an appeal, consider challenging the trial court's jury instructions. If the jury doesn't have the right instructions, it could not have made the correct decision, right? Yes, but not this case.

The case is Terranova v. State of New York, decided on April 16. This case arises from a roadblock gone awry. The police set up the roadblock on the Sprain Brook Parkway in Westchester County because some motorcyclists were riding erratically. When three motorcyclists approached the roadblock, there was already a traffic tie-up. When a BMW in the center lane abruptly moved into another lane, it caused a chain reaction. One cyclist crashed into the vehicle. Another drove into the median. A third drove into the median to avoid an accident and jumped off his motorcycle, striking his chest on another motorcycle. He ultimately died from the chest injuries.

The case went to trial on a Fourth Amendment theory that the police had seized the cyclists without justification and had used excessive force. The lost at trial. The appeal argues that, although the trial court used the basic excessive force jury charge, it should have also instructed the jury on a "deadly force" charge that presumably would have made it easier for the plaintiffs to win. The Court of Appeals (Winter, Lynch and Carney) notes that, for a time, some courts interpreted Tennessee v. Garner, 471 U.S. 1 (1985), to mean that "the Supreme Court ... established a special rule concerning deadly force, which could require a separate jury instruction in which police conduct created a substantial risk of death or serious bodily injury." However, in Scott v. Harris, 550 U.S. 372 (2007), the Court rejected that interpretation.

So, the Second Circuit provides the operative rule: "absent evidence of the use of force highly likely to have deadly effects ..., a jury instruction regarding justifications for the use of deadly force is inappropriate, and the usual instructions regarding the use of excessive force are adequate." As this case involves a mere traffic stop and was not intended to seriously injure suspects, it doesn't apply here. No new trial for the plaintiffs.