Court of Appeals provides guidance on prima facie causation under Title VII

The Court of Appeals has reversed summary judgment on a Title VII retaliation claim where management retaliated against the plaintiff months after she complained about sexual harassment, adopting the principle the jury can infer retaliation if the employer waited until the first opportunity to strike back at the complaining employee.

The case is Summa v. Hofstra University, decided on February 21. The Court of Appeals ruled against Summa's hostile work environment claim because the college reacted appropriately to harassment. But she can still win at trial on her retaliation claims. This decision is worth reading for lawyers who handle employment discrimination cases, particularly those who grapple with the rules governing timing and causation, which remain fuzzy.

As a graduate student, Summa had worked as the team manager for the Hofstra football team. In November 2006, she complained that the football players had sexually harassed her. She was then denied the team manager position for the Spring 2007 season. She filed a State Division of Human Rights complaint against the college in May 2007, alleging that the team manager denial was retaliatory. That month, she was offered a position in the Office of University Relations. That offer was rescinded in July 2007, after Human Resources found out about the SDHR complaint. Then, after Summa filed her lawsuit in January 2008, the college in Summer 2008 terminated her privilege of student employment because she had double-counted some of her hours.

Defendants often argue that the time lag between the protected activity and the adverse actions was too long to prove a causal connection. The Second Circuit's rulings are all over the place on how much time must elapse before the employer is out of the woods. As summarized in this decision, one case says three months is too much time for the plaintiff to win. But another says that eight months is enough to win. There is no bright-line; in the context of each case, the court knows a causal connection when it sees one. For this case, here is the analysis on the job denials:

1. The spring season manager position was denied only four months after Summa complained about sexual harassment in November 2006. The Court says, "There is strong reason to find this four-month time span sufficient in this case to establish causation because Summa’s complaints were based on events that occurred on the very last day of the fall season. The start of the spring season was the first moment in time when the football coaching staff could have retaliated against Summa as she was not directly working for them over the intervening months. This Court has recently held that even gaps of four months can support a finding of causation. Here, this close temporal relationship is made even closer by the fact that the adverse action occurred at the first actual opportunity to retaliate." I believe this is the first time the Second Circuit has used the "first opportunity" rule in a published Title VII case.

2. As for the decision to deny Summa her employment privileges, the seven-month gap between the filing of the lawsuit and that decision is not too remote. Not only has the Court of Appeals held that seven-months is not too long to raise an inference of causation, but other evidence also permits the inference of retaliatory intent. "The other surrounding circumstances—including [human resources'] personal knowledge of the lawsuit when she decided to terminate the employment privileges and [HR's] comment about insuring that graduate employees like Summa are able to “be advocates for the University,” which [the hiring official] took as including litigation-related conflicts—are sufficient to allow an inference of causation here. As correctly noted by the district court, Summa’s May 2007 complaint to the NYSDHR and its June 2007 determination that she had established probable cause are plainly close enough in time to the July 2007 rescission of the offered graduate assistantship that causality may be inferred."

What do we learn from this case? The prima facie case is flexible and determined on a case-by-case basis. There is language in a Supreme Court case, Clark County v. Breeden (2001), that says that "The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be 'very close.'" That decision favorably cites cases from the Seventh and Tenth Circuits that three and four months are insufficient to draw that inference. But that's only dicta, and although I am sure that Hofstra's lawyers cited Breeden on appeal, that case is not even cited or analyzed in the Summa case.

How to deal with sexual harassment

Even the most repulsive sexual harassment in the world will not create liability for the employer if it takes the harassment seriously and deals with the problem right away. That is what happened in a case against Hofstra University.

The case is Summa v. Hofstra University, decided on February 21. The plaintiff was a graduate student at Hofstra who also worked as the team manager for its football team, answering to the male assistant coach, John Perry. The football players acted like the proverbial brutes in their treatment of Summa, creating a Facebook page that lodged sexual and other insults against Summa and her boyfriend. Once Summa complained about this, the head football coach told the players to take down the page, which they did. Then on a bus ride with the team, the assistant coach put on an R-rated movie with sex scenes. The players reacted like junior high students, shouting out lewd vulgar comments to Summa, for whom this was the bus ride from hell. The assistant coach told the team to cut it out and then sat next to Summa. The worst offender on the bus was kicked off the team over this incident. The school then implemented sexual harassment training.

Even assuming there was a hostile work environment, that does not end the inquiry. One issue is whether the school is even obligated to rein in non-employees (such as the football team) in Title VII cases. The Second Circuit (Pooler, Raggi and Lynch) says for the first time that an employer may be liable for the harassment of non-employees in certain circumstances: "we will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.” More broadly, "In determining the appropriateness of an employer’s response, we look to whether the response was 'immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility [the employer] has with respect to [the employee’s] behavior.'” 

Under these standards, Summa loses the hostile work environment case. The college had a duty to protect plaintiff because it had control over the students. But it responded promptly and appropriately to the harassment. The Court says:

Each complaint that was brought directly to [the football coach's] attention was dealt with quickly and in proportion to the level of seriousness of the event. The fact that Cohen took action at once—completed within just days in all cases—speaks to the appropriateness of the University’s response in this case. Because defendants took the needed remedial action in this case, the harassment carried out by some players on the football team cannot be imputed to the University and its personnel. In addition to the prompt response to the particular incidents of harassment, upon the report of the movie incident to the school’s EEO officer—which took place after the offending player had already been expelled from the football team—the University had the entire Athletics staff undergo sexual harassment training before the start of the next football season. In addition to directly addressing the particular incidents of harassment of which it was aware, the University also took proactive steps to create a better environment for all employees in the future.

So, even though the football players acted like a bunch of jackwagons, the College did the right thing, and the hostile work environment claim under Title VII is dismissed. The same cannot be said for Summa's retaliation case, which survives summary judgment. That is a subject for a later post.

Inmate free speech case is reinstated

Yes, inmates have rights. They can sue their jailors. In this case, the inmate claimed that Correction Officer Burge retaliated against him because plaintiff wanted him to preserve evidence for a future lawsuit. The district court threw out the case, but the Court of Appeals reinstates it because plaintiff engaged in protected activity under the First Amendment.

The case is Johnson v. Burge, a summary order decided on December 20. It all started when another inmate threw feces at Johnson, who asked Burge to preserve evidence of that incident. As for the evidence that Johnson was referring to, I don't know and I don't want to know. The district court said that Johnson's note to Burge was not free speech and therefore it could not predicate a retaliation claim. The Second Circuit (Katzmann, Parker and Wesley) disagrees.

Filing a grievance is protected activity, we know that. The Court of  Appeals adds, "but our previous cases have defined the scope of protected conduct more broadly, including actions that 'pursu[e] a grievance,' such as the 'attempt to find inmates to represent . . . grievants.' Requesting the preservation of evidence, much like attempting to find adequate representatives, pursues a grievance. Similarly, retaliation against prisoners for requesting the preservation of evidence unquestionably obstructs their right to seek the redress of grievances. Thus, Johnson’s letter qualifies as protected conduct."

What fascinates me about this case is that, at this point, inmates have broader First Amendment rights than the jailors who guard them. Under the Supreme Court's Garcetti precedent, public employees who speak on matters intimately connected to their public employment have no First Amendment rights to make that speech. That is not citizen speech, the Court said in 2006, but work speech, subject to whatever discipline management decides to impose. In theory, public workers are still protected under the First Amendment, but in application, most of their cases lose under Garcetti. Since the principles underscoring Garcetti (efficient management of public offices) do not apply in the prisoner context, the plaintiff here does not have to worry about Garcetti.

Summary judgment vacated in false arrest case

Summary judgment is vacated in a false arrest case because the trial court did not view the evidence in the light most favorable to the plaintiff, who was arrested for obstructing governmental administration for allegedly interfering with a police officer who was responding to an emergency in a shopping mall. The plaintiff gets his day in court.

The case is Barksdale Colavita, a summary order decided on December 26. False arrest cases are difficult to win because the officer can win upon a showing of probable cause to arrest the plaintiff. That's not hard to prove. Here, Officer Colavita was racing down an escalator when he came into physical contact with Barksdale. Both sides had different accounts of what happened. Colavita said that struck or pushed him three times, causing him to fall backwards (if true, that's an obstruction of governmental administration). Barksdale testified that Colavita pushed him from behind and, as a result of the push, he “lost [his] balance and put [his] hand back” in order “to try and get [his] balance.” On this testimony, the district court noted that Barksdale “acknowledge[d] that, as he lost his balance as a result of being pushed from behind, his left arm came up and came into contact with Officer Colavita.” That's why the district court granted summary judgment to Colavita on the false arrest claim.

The Court of Appeals (Walker, Katzmann and Hall) reverses and remands for trial. The district court did not truly view the evidence in the light most favorable to Barksdale. The Second Circuit writes:

Barksdale testified that he made only incidental contact with Officer Colavita after Officer Colavita pushed him: “[I]t happened so quick. I was basically like, ‘oh, I touched a police officer.’” Barksdale further testified that, after he made contact with Officer Colavita, Officer Colavita began “tussling and grabbing on [him, i.e., Barksdale] and [he] hit the ground.” Barksdale’s version of events, which we must credit at this stage of proceedings, contains no support for the inference that he intended to obstruct Officer Colavita. Officer Colavita would have known that he had initiated contact with Barksdale, that Barksdale “touched” him only in response to that contact, and that Officer Quatrone had passed Barksdale without incident. In light of these “facts and circumstances,” a reasonable jury could find that no “person of reasonable caution” would jump to the conclusion that Barksdale intended to impede Officer Colavita.  

Don't proposition your female subordinates

The Court of Appeals has again vacated summary judgment in a hostile work environment case. This time, the Court issues a brief published opinion that once again reminds us that the guys really have to control themselves in the workplace.

The case is Desardouin v. City of Rochester, decided on February 19. Plaintiff's supervisor, McIntyre, made sexual advances toward her and another woman. On a weekly basis, he told plaintiff that her husband was "not taking care of her in bed." That is the extent of the hostile work environment evidence. Is it enough for trial? The district court said no, but the Court of Appeals (Newman, Raggi and Lynch) says Yes. Here's the analysis:

The comments persisted on a weekly basis over an interval that lasted at least two and perhaps three months. Though not threatening, they were more than merely offensive. For a male to say to a female employee under his supervision that her husband was “not taking care of [her] in bed” is the sort of remark that can readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess and can just as readily be found to have been perceived as such by the female employee. The weekly repetition of such a remark over several weeks only served to reenforce its offensive meaning and to make sexual intimidation, ridicule, and insult a pervasive part of Desardouin’s workplace, effectively changing the terms and conditions of her employment. ... Indeed, Desardouin’s affidavit stated that she found McIntyre “threatening,” and that he made “sexual advances” toward her and another employee. The allegations of repeated solicitation of sexual relations in a vulgar and humiliating manner suffice to warrant a trial.

It's all a matter of perspective. The facts in support of plaintiff's claim are brief: McIntyre propositioned plaintiff and her co-worker, and on a weekly basis he suggested that plaintiff's husband was not taking care of her in bed. But that simple sentence packs a punch. The supervisor did this every week. That makes the harassment pervasive. He also made a crude reference to plaintiff's sex life, implying that he could satisfy her in bed. That makes it severe. You may not think so, and neither did the district court, which in dismissing the case, said: "There is no allegation or evidence of severe conduct on the part of McIntyre, such as unwanted touching, or that the conduct was pervasive. Although the alleged comments made by McIntyre that Ms. Desardouin's husband was not taking care of her are vulgar, there is no evidence that they were of a frequency to constitute a pervasive atmosphere of hostility." But the jury might deem it severe or pervasive, and summary judgment is reversed.

The Second Circuit has been reversing summary judgment in hostile work environment cases for quite some time now. The judges have no tolerance for this kind of nonsense in the workplace. Close cases are going to trial.

New York's sex offender confinement law may violate the Constitution

No politician will ever be taken to the woodshed for getting tough on sex offenders. That is what the federal courts are for. The former governor of New York and other public officials may lose a civil rights lawsuit filed by sex offenders who claim that the state's civil confinement law violates the Due Process Clause.

The case is Bailey v. Pataki, decided on February 14. After a newly-paroled sex offender in 2005 killed a woman in a shopping mall parking lot in 2005, Governor Pataki pressured his people to find a way to lock up violent sex offenders in a psychiatric institution after their prison terms ran out. As the Second Circuit (Sack, McLaughlin and Hall) wrote, Pataki directed the Office of Mental Health and the Department of Corrections "to push the envelope of the State's existing involuntary commitment law because he couldn't wait any longer for the Assembly Leadership to bring his legislation to the floor for a vote." The Civil Commitment Initiative was therefore quickly implemented.

Under the Initiative, the identified inmates would be subject to a review of their criminal histories, and then to an examination by two physicians, who would determine whether they posed a risk to the public, or suffered from a mental illness, and therefore needed inpatient care and treatment. If the physicians recommended civil commitment, the inmate would be transferred to a psychiatric center and examined by a psychiatrist to confirm the diagnosis. Once admitted to the facility, the inmate would begin undergoing a specialized course
of treatment.

The whole thing was a rush job. The standards governing which inmates to confine post-incarcertation were inconsistent with those governing involuntary commitments under the Mental Health Law, and it was difficult to get up to speed on -- and fairly apply -- the new rules. There were other problems with the new procedures as well. The lawsuit claims that the plaintiffs "were denied their Fourteenth Amendment right to procedural due process when they were committed to a psychiatric institution without the benefit of notice, psychiatric examination by court-appointed physicians, or a judicial hearing prior to their commitment." While the inmates are entitled to a hearing after the state confines them post-incarceration, that's not enough under the Due Process Clause, and the state's motion for summary judgment is denied.

Post-deprivation process is OK under the Constitution if pre-deprivation process is unfeasible or unduly burdensome, i.e., the liberty interest is slight or an emergency makes it impossible to hold a hearing to protect the liberty interest of not being confined against his will. But there is no emergency here, the Second Circuit says, because state officials have enough time before the incarcerated inmate leaves prison to determine if this sex offender poses a risk to the community. Also implicating the Due Process Clause is the fact that the program was enacted in haste, the rules are unclear and the potential for erroneous confinement is too risky.

Although the program may violate the Due Process Clause, the defendants sought qualified immunity, arguing that the law was not clearly-established when the program was enacted. The Court of Appeals denies qualified immunity. Supreme Court precedent, Zinermon v. Burch, 494 U.S. 113 (1990), which outlines when the state must offer pre-deprivation process prior to the deprivation of liberty, is close enough that defendants should have known they were violating the law when they came up with the program in 1995. The case therefore goes to trial.

A backward-looking right of access? Not yet.

The Supreme Court recognizes a "right of access" claim that can give rise to a lawsuit. It accrues when a government officials impedes your right to bring a lawsuit. It usually arises in the "forward looking" context, i.e., someone frustrated your ability to bring suit. Are there "backwards looking" claims also, where the plaintiff finds out post-lawsuit that someone manipulated relevant facts that hurt the outcome?

The case is Sousa v. Marquez, decided on December 13. Sousa had previously sued his government employer for retaliation under the First Amendment, when he complained about violence in the workplace. That case went to the Second Circuit a few years ago (578 F.3d 164 (2d Cir. 2009)). In the end, Sousa lost that case because the district court said that his interest in the speech was outweighed by his employer's interest in maintaining an efficient workplace. In other words, Sousa lost under what we call Pickering balancing.

Anyway, after that case ended, Sousa learned through a Freedom of Information request that his employer “discovered and concealed strong evidence in favor of [Sousa’s] contention that workplace violence was a serious and ongoing problem at the DEP and had chosen not to interview other witnesses who would have testified to the same effect.” He sued again in district court, arguing that this information would have greatly enhanced his First Amendment retaliation suit and that its concealment impeded his "right of access" to federal court.

Sousa loses the case. It is not clear that the right of access principle applies in a "backward-looking" manner. If it does, the Second Circuit has not yet recognized that interpretation of the Supreme Court's "right of access" cases. But it is clear that "when a plaintiff in a backward looking access suit alleges that the government concealed or manipulated relevant facts, the claim may not proceed if the plaintiff was, at the time of the earlier lawsuit, aware of the facts giving rise to his claim." The Second Circuit (Cabranes, Raggi and Carney) finds that Sousa knew about the violent conditions in his workplace, and that "he was necessarily aware of the alleged inaccuracies in Marquez's reports at the time he litigated his prior suit, even if he dd not then appreciate that Marquez's distortions were (as he now claims) intentionally false or misleading." The Court adds, "Sousa could have requested discovery with respect to the facts presented (or purportedly omitted) in Marquez’s reports." So, even with a backward-looking right of access claim, Sousa loses. He should have known about and could have pursued this information in the prior lawsuit that he now claims was impeded by defendant's manipulation of the relevant facts.

Connecticut public employee is another Garcetti casualty

Down goes another public employee free speech claim. This time, a "Building Official" in a Connecticut town was replaced by someone else after he expressed himself on matters that related too closely to his job responsibilities. The plaintiff obviously had not read the Supreme Court's ruling in Garcetti, which says this speech is unprotected under the First Amendment.

The case is Looney v. Black, decided on December 21. Looney's case does not get out of the starting gate. The Court of Appeals says the complaint does not state a claim and that the defendants are entitled to qualified immunity. If you handle cases like this, you know that public employees who speak pursuant to their official duties -- i.e., the speech owes its existence to his professional responsibilities -- have no protection under the First Amendment from retaliation, even if their speech touches upon important public matters. The Supreme Court said this in Garcetti v. Ceballos (2006).

It all started when Looney spoke to a town resident about the public health implications of wood burning and smoke discharge. Looney claims he was voicing his opinion regarding an outside agency enforcing a cease and desist order against town residents. As alleged in plaintiff's complaint, his job duties made him "responsible for the administration and enforcement of the State Building Code at the municipal level, including the organization and conduct of the building advisory, inspection and enforcement program." He also kept “uppermost in mind his obligation to enforce the State Building Code to ensure the safety of the townspeople." Looney essentially pleads himself out of federal court. The Court of Appeals says that "the alleged speech set forth in the complaint was closely related to his work as Building Official." The Court (Jacobs and Straub) adds:

The only sensible way to interpret Looney’s allegations is that he spoke on these issues because he was in an official position that required, or at least allowed, him to do so. It follows that these statements owed their existence to his position as the Building Official. As a consequence, Looney has not adequately alleged that he spoke as a private citizen.

What strikes me about the Second Circuit's Garcetti claims is the unanimity of most of the decisions, even though this Court used to allow many of these cases to proceed prior to Garcetti. This time around, though, Judge Droney -- recently appointed to the Court of Appeals -- dissents. He thinks dismissal is premature and that "[e]vidence about both the specific content of Looney’s speech to the Marlborough residents and Looney’s job responsibilities must be presented before it would be appropriate to dismiss his claim on the ground of qualified immunity." After noting that plaintiffs have to show they spoke as private citizens and not as public employees, Judge Droney writes:

It may be that Looney’s position as Building Official made it possible for him to deliver his comments to the Marlborough residents, and so the comments may have “owed [their] existence to [Looney’s] job duties.” However, Looney’s complaint sufficiently alleges that his comments were not made “in furtherance of” his job duties – either formal or informal. After making the comments to a Marlborough resident, Looney alleges that he was admonished by his supervisor (the Director of Planning and Development for the Town of Marlborough) to “restrict his actions in the office to that of his duties and not to make determinations or engage in discussions of substantive matters outside his job duties concerning other Town agenc[ies] or jurisdiction[s].” Looney also alleges that he was told by that supervisor to stop “voicing his opinion regarding an outside agency enforcing a cease and desist order against Town residents.” It could be that a Building Official whose principal responsibilities are the enforcement of the state building code would be involved as part of his job with wood-burning stoves and the potential harms they pose to public health, or – less likely – that his job involved other agencies’ cease and desist orders, but such a conclusion is not clear on the basis of the pleadings alone.

Six figure civil rights verdict thrown out on appeal

Private individuals can be sued for a constitutional violation if they conspire with public officials, i.e., police officers, in depriving someone of his rights. This is the exception to the general rule that private actors are not governed by constitutional standards. In this case, the plaintiff recovered damages against a bar which allegedly conspired with the police to violate his rights. The Court of Appeals takes that verdict away.

The case is Demeo v. Tucker, a summary order decided on January 29. Demeo claimed that an officer and a bar bouncer assaulted him at a bar, the Phlip'n Spill. He also says the bar and the officer conspired to destroy video surveillance footage of the assault, in violation of the due process right to access the courts. The jury agreed that the bar conspired with the police officer in this regard, and plaintiff was awarded $110,000 in compensatory and punitive damages.

As the Court of Appeals (Jacobs, Pooler and Chin) puts it, "the jury concluded that Phlip’N Spill acted as a willful participant in joint activity with Trooper Reyner and deprived DeMeo of due process by altering, destroying, or losing video evidence. However, the jury concluded that Trooper Reyner did not deprive DeMeo of due process by altering, destroying, or losing video evidence."  This looks to be an inconsistent verdict. If the officer did not violate plaintiff's rights, then the private actor could not have conspired with the officer to violate his rights.

Trying to save the verdict, the district court post-trial said that the trooper may have encouraged the bar to destroy the evidence. But the Court of Appeals says this is "naked conjecture" for which there is no proof. "It is, quite simply, a fiction." The verdict is gone.

The ADA's reasonable accommodation requirement may trump state law

The Court of Appeals has held that the Americans with Disabilities Act may require the state to waive certain eligibility deadlines if waiver would reasonably accommodate a disabled person under the Act.

The case is Mary Jo C. v. New York State and Local Retirement System, decided on January 29. This case is an Americans with Disabilities Act tour de force, giving us a tutorial on the ADA and what it all means. The case arose when plaintiff, a librarian who suffers from a mental illness, was unable to meet the strict deadline for classifying the termination of her employment as a leave of absence. She "failed to recognize" the three-month filing deadline "because of her mental illness." That reclassification was necessary for plaintiff to recover disability retirement benefits.The district court threw out the case because the plaintiff missed the deadline. The Second Circuit reinstates the case.

Two competing legal rules clash in this case: New York's deadline for filing disability retirement claims, and the ADA's requirement that public entities reasonably accommodate the disability if the accommodation does not interfere with essential eligibility requirements. A requirement is essential if waiving the requirement would fundamentally alter the program's nature. The Second Circuit (Sack, Raggi and Swain [D.J.]) says that a formal eligibility requirement is not necessarily essential to the program. "we read the ADA to require us to analyze the importance of an eligibility requirement for a public program or benefit, rather than to defer automatically to whatever 'formal legal eligibility requirements' may exist, no matter how unimportant for the program in question they may be." A contrary interpretation of the ADA would undercut that statute's broad remedial purpose, the Second Circuit says. "The district court's view that the ADA's reference to 'essential eligibility requirements' necessarily refers to each and every formal legal eligibility requirement imposed for participation in a public program or benefit is mistaken."

The Court next determines whether the retirement benefits deadline is an essential component of the retirement program. It is not. Congress wanted Title II of the ADA to "sweep broadly." And, as state law cannot preempt federal law, "the ADA's reasonable modification requirement contemplates modification to state laws, thereby permitting preemption of inconsistent state laws, when necessary to effectuate Title II's reasonable modification provision." But there is some judicial modesty here: the Court does not say that all state deadlines must be waived in the interests of accommodating the disabled. "Because 'the determination of what constitutes reasonable modification is [a] highly fact-specific, . . . case-by-case inquiry,' '[w]hether the plaintiff['s] proposed alternative' to New York's filing deadline 'constitute[s] [a] reasonable modification[] or [a] fundamental alteration[] cannot be determined as a matter of law on the record before us.'" On this motion to dismiss, the Court of Appeals holds that the district court should not have granted Rule 12 dismissal of plaintiff's Title II claim against the state retirement system. The take-away is that in some cases, the ADA's reasonable accommodation requirement will override state law.

One final holding in the case: employment discrimination cases under the ADA may only be filed under Title I of the Act, not Title II, which prohibits discrimination in government programs. The Court of Appeals finds that Congress wanted Title I to cover employment discrimination, not Title II. Employment is not a government program, at least in the way that most people interpret the word "program." In a related claim, the plaintiff sued her former employer, a library, under the Act. She alleged that the library failed to file a retirement application on her behalf. While there is a split among the courts on this issue, the Court of Appeals sides with the library's position on this one.

The 2d Amendment comes to the 2d Circuit

The national gun debate came to the Second Circuit this week as the Court of Appeals took up a Second Amendment issue that is so tricky that it sent the case to the New York Court of Appeals to iron out a threshold legal issue.

The case is Osterweil v. Bartlett, decided on January 29. The plaintiff was a temporary New York resident who wanted a gun for his part-time residence in Schoharie County (he lived in Louisiana). New York law provides for gun licenses "where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper." Plaintiff's application was denied because he did not reside in New York anymore. Does this violate the Second Amendment?

Chief Judge Jacobs and Judge Walker are sitting on the panel of this case. Also on the panel is retired Supreme Court Justice Sandra Day O'Connor, who writes the decision. She notes that the Supreme Court in 2008 said that the Second Amendment protects the right to keep a handgun at home for self-defense. She thinks this case raises a serious constitutional issue, and my guess is that the Supreme Court would say that New York's residency restriction violates the Constitution.

The district court said that the law is reviewed under intermediate scrutiny because "the law allows the government to monitor its licensees more closely and better ensure the public safety." But Justice O'Connor is not sure New York's law really prohibits non-residents from owning a gun. In different contexts, state laws define "residence" differently. If "residence" in this instance includes a temporary residence, then there is no constitutional problem, because then plaintiff can get the gun license even though he now primarily lives out of state. If residence means "domicile," then we have a real issue here. To solve this riddle, the Second Circuit certifies this case to the New York Court of Appeals, which can issue a definitive issue on this important issue of state law.