Second Circuit kicks Judge Scheindlin off the "stop and frisk" cases

The Court of Appeals has stayed implementation of a trial court's stop and frisk order that held New York City liable for racial profiling. The district judge who issued that ruling has also been kicked off the case. The Second Circuit ruled that she violated the judicial code of conduct in steering stop and frisk cases her way and speaking publicly on her ruling.

The case is Ligon/Floyd v. City of New York, issued on October 31. The Second Circuit (Walker, Parker and Cabranes) does not identify the trial judge, but everyone knows it's Judge Scheindlin, who worked her tail off on this case, issuing a mammoth ruling in summer 2013 that held the City violated the Constitution in effecting stop and frisks without reasonable suspicion to believe that thousands of people were committing any criminal activity. Judge Scheindlin also ruled that the City's stop and frisk practices constituted racial profiling in violation of the Fourteenth Amendment.

The City is appealing the ruling, and it asked the Second Circuit to stay (or put off) implementation of Judge Scheindlin's remedial orders until the appeal is resolved. These remedial orders include the appointment of a monitor who would oversee the police department. Appellate judges rarely remove a trial court from the case. The Court of Appeals did so here. It says:

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.

What did Judge Scheindlin do wrong? The Second Circuit says that, in another case in December 2007, she said, “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also said, “[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.” She added, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” She predicted she would get in trouble for saying this, and she did. The Floyd case was filed shortly afterwards, and it was assigned to Judge Scheindlin. Judges can take on cases that are related to the ones they already have in the interests of judicial efficiency. The decision suggests the "related case" rule can be abused.

 As for the news articles in which the judge spoke on the case, one of them (from Jeffrey Toobin) is at this link. The other articles (from the New York Law Journal and Associated Press, are titled, "Stop-and-Frisk Judge Relishes her Independence" and "NY 'Frisk' Judge Calls Criticism 'Below-the-Belt.'"

The Toobin article is interesting for other reasons. Judge Scheindlin said that she doesn't like trials; she likes writing opinions. "There you get to do what you think is right, what you believe in. You’re pushing the margins of the envelope, being willing to be creative.” The article is also interesting for the below paragraph:

According to a study prepared by the Mayor’s office, Scheindlin suppresses evidence on the basis of illegal police searches far more than any of her colleagues—twice as often as the second-place judge. This may mean that Scheindlin is uniquely courageous—or that she is uniquely biased against cops. (Scheindlin has said that the study is misleading, because it reflects only her written opinions, rather than bench rulings, in which she almost invariably rejects motions to suppress.) Still, she embraces her maverick status. Many judges in the Southern District previously worked as prosecutors in the U.S. Attorney’s office there, but she was not among them. “Too many judges, especially because so many of our judges come out of that office, become government judges,” Scheindlin told me. “I don’t think I’m the favorite of the U.S. Attorney’s office for the Southern District. Because I’m independent. I believe in the Constitution. I believe in the Bill of Rights. These issues come up, and I take them quite seriously. I’m not afraid to rule against the government.”

What strikes me about the Second Circuit's ruling is that the court does not tell us why the district court's order is stayed. Usually, the government has to show irreparable harm if the order is implemented pending appeal. Maybe the Court of Appeals thinks the issues raised by the case are so far-reaching that it's best to wait until the case is over to put Judge Scheindlin's order in effect. In any event, if the case survives appellate review, another judge will have to worry about all of this. For now the Second Circuit has not spoken to the merits of the case, i.e., whether Judge Scheindlin got it right or wrong on stop and frisk.

Lengthy traffic stop is not actionable under Fourth Amendment

The Fourth Amendment requires that the police keep traffic stops as brief as necessary to effectuate the purpose of the stop. In this case, the plaintiffs argued the traffic stop was too long, in violation of the Fourth Amendment. The Court of Appeals does not see it that way.

The case is Harwe v. Floyd, a summary order decided on October 17. The stop lasted a half hour. Floyd stopped Levy's car because she swerved without signaling. She admitted drinking alcohol at dinner. The Second Circuit (Raggi, Droney and Keenan [D.J.]) says that Floyd reasonably continued the stop "beyond the time necessary to issue a traffic violation in order to assuage reasonable suspicions as to driver sobriety." He necessarily questioned Levy and Harwe separately because Levy failed two sobriety tests, further lengthening the stop.

The case seems simple enough, but nothing under the Fourth Amendment is simple. Levy says the officer should have instead investigated her claim that she failed the sobriety tests because she was a stroke victim. But the Court says that Floyd's interview at the time was reasonable. The plaintiffs also argue that Floyd wasted time talking with other officers "who purported laughed and pointed at Levy." But even if this conversation was unrelated to the stop, it was relatively brief in comparison to the necessarily more time-consuming sobriety tests, preliminary questioning, the placement of Levy in the police car and filling out the citation, among other things.

You probably didn't know that a long traffic stop can violate the Fourth Amendment. This case does not quite tell us how long is too long. One case says that 17 minutes spent on unrelated inquiries is not too long. Another says that 30 minutes was reasonable based on reasonable suspicion. Add this case to the list. Under the circumstances, 30 minutes is not worth suing for.

Citizens United comes to New York

Is there a more hated Supreme Court ruling in recent years than Citizens United, which struck down on First Amendment grounds certain restrictions on corporate campaign contributions? Love it or hate it, Citizens United is here to stay, and it just knocked down a campaign finance law in New York.

The case is New York Progress and Protection PAC v. Walsh, decided on October 24. This case was argued on October 18, so the urgency is clear, as irreparable harm is inherent in First Amendment violations, and the plaintiff supports the New York City mayoral campaign of Joseph Lhota, who needs the money in time for the election in November.

The law in New York imposed a $150,000 aggregate annual limit on certain political contributions by any person in New York State. So the plaintiff -- which makes independent expenditures without prearrangement or coordination with a candidate -- cannot receive more than that amount from any individual contributor in any calendar year. NYPPP alleges that "the cap violates its core First Amendment right to advocate in favor of Joseph Lhota in the upcoming mayoral election."

Post-Watergate, Congress took a hard look at campaign finance laws. When the money people challenged these restrictions under the First Amendment (on the theory that campaign contributions and spending constitutes political speech), the Supreme Court in Buckley v. Valeo (1976) said the Constitution allows for some of these campaign finance restrictions in the interest of combating corruption. When Congress enacted the McCain-Feingold campaign finance restrictions in 2002, a new Supreme Court began chipping away at it, and the Citizens United ruling said that the government has no anti-corruption interest in limiting independent expenditures.

I am sure the lawyers representing the State of New York worked valiantly in defending the law that the Second Circuit took up in this case. But Citizens United makes this result a foregone conclusion. Under Citizens United, "it follows that a donor to an independent expenditure committee such as NYPPP is even further removed from political candidates and may not be limited in his ability to contribute to such committees. All federal circuit courts that have addressed this issue have so held."

Qualified immunity for Connecticut child protective workers who took the kids away

In this Section 1983 action against Connecticut child protection officials, a female "Jane Doe" argues that the defendants illegally took away her children after she was caught hanging around with a man who had previously physically assaulted her in front of her children. The Court of Appeals rules for the State, finding that the defendants have qualified immunity.

The case is Doe v. Whelan, decided on October 17. After John Doe assaulted a pregnant Jane Doe (he was the father of her children, who were home when the assault took place), the Department of Children and Families got Jane to agree to stay away from John, who could not have any contact with her children. The authorities later found John running around with his shirt off near Jane's home, with John's car in her driveway (she said he was tucking in the children for bed). The Court of Appeals (Cabranes, Hall and Chin) notes dryly that John "likely ... jumped out of a second-story window." The kids were temporarily taken from Jane under a Connecticut law that authorizes the seizure upon probable cause that the children face immediate risk of physical harm from their surroundings. The kids were later returned to Doe under protective supervision.

In cases like this, "qualified immunity shields from liability state officials tasked with choosing between interrupting parental custody or risking injury to the child provided there is an objectively reasonable basis for their decision, whichever way they make it." This is unlike the "reasonable man" test in common-law torts, which allows liability of the defendant makes a mistake. Under qualified immunity, if the defendant acted objectively reasonably but made a mistake along the way, he cannot be sued.

The contentious history between John and Jane, including the multiple physical assaults and the order prohibiting John from entering Jane's home led authorities to fairly believe that the children were in imminent danger when they saw John's car in the driveway at night. As state court judges agreed at the time that the children were in immediate physical danger and thus removed them from their home, the DCF workers were all the more reasonable in taking the children away from Jane.

Big win for ADA plaintiffs who sue non-compliant public establishments

A disabled resident of New York City sued a diner because it was not accessible to people with disabilities. However, she never entered the building. Is she able to bring the lawsuit? Yes.

The case is Kreisler v. Second Avenue Diner Corp., decided on September 25. The plaintiff cannot walk and travels around in a motorized wheelchair. He lives near a diner that he cannot enter because the front entrance has a step that is seven or eight inches high. The diner put in a ramp without hand-rails, and the ramp doesn't always seem to help; the sign that tells patrons to ring the bell for help is not always posted. The bathroom is also not accessible to people in wheelchairs. The district court said that the restaurant was in violation of the Americans with Disabilities Act. On appeal, the Court of Appeals (Winter, Walker and Wesley) focuses on a procedural issue (standing to sue) and not the substance of the case (whether the diner is violating the ADA).

Since plaintiff did not enter the diner, defendants argue that he does not have standing to sue because was never harmed by the ADA violations. The Court of Appeals disagrees. "Kreisler never attempted to enter the Diner; he did, however, testify that (1) the seven to eight‐inch step deterred him from attempting to enter, (2) he frequents diners in his neighborhood often, (3) he lives within several blocks of the Diner, and (4) he would like to frequent the Diner if he were able to access it. ... [T]hese are sufficient facts to show a plausible intention to return to the Diner." Which means he has standing to sue the diner.

These cases do not reach the Court of Appeals often, so the Circuit relies on cases from around the country to bolster its holding. The Second Circuit holds for the first time that "deterrence constitutes an injury under the ADA." Borrowing from the Ninth Circuit, the law in our jurisdiction is now that "[i]n the context of the ADA, the fact that the wheelchair‐inaccessible entrance deterred Kreisler from accessing the Diner established a concrete and particularized injury; Kreisler need not attempt to overcome an obvious barrier."

What about the inaccessibility of the diner's interior, like the bathroom? Plaintiff never entered the diner. Can he challenge those violations? Yes. Borrowing from the Eighth and Ninth Circuits, the Second Circuit says that "once a plaintiff establishes standing with respect to one barrier in a place of public accommodation, that plaintiff may bring ADA challenges with respect to all other barriers on the premises that affect the plaintiff’s particular disability."

Newsday wins (in part) challenge in closed courtroom fight

This case arises from an allegation that the Nassau County police had negligently contributed to a stabbing death after the victim's mother had obtained orders of protection on her child's behalf. The killer stalked and menaced the victim. Plaintiff claimed the police department's lax supervision led to her daughter's death. The case settled for more than $7 million, and the dispute then centered on the newspaper's efforts to gain access to certain files, which brought this case to the Court of Appeals.

The case is Newsday v. County of Nassau, decided on September 23. While the case was in litigation, the plaintiff wanted an internal affairs report, totaling 712 pages, into the episode. Newsday joined in the effort to obtain the report. The magistrate judge said the report could not be released to the public. During the settlement process, the Chairman of the County Legislature, Schmitt, spoke publicly about the report and "appeared to reveal information contained in the Report." The district court then took up contempt proceedings against Schmitt. The trial court held that hearing in a closed courtroom, but the courtroom reopened after Schmitt testified. The courtroom closed again when someone else testified about the contents of the report.

The First Amendment values open courtrooms. The Court of Appeals (Lynch, Lohier and Carney) says for the first time that civil contempt proceedings implicate First Amendment values. The courtroom should have been opened for lack of any sufficient justification to close it. "No portion of the hearing transcript reveals information that is sufficiently confidential that its disclosure would impair in any material way the performance of Article III [judicial] functions. The portions of the transcript that remain redacted after Judge Spatt's order reveal only information about the date of the Report, the number of police officers mentioned in it, and how many of those officers were female. None of these bits of information raises significant confidentiality concerns that would in themselves warrant sealing the courtroom or the transcript."
The full hearing transcript must be released.

But what about the report? Newsday wants it. We resolve that on a case-by-case basis. Newsday doesn't get the report. The substance of the report was not significantly relied upon during the contempt hearing, and it was not entered into evidence. It was only used during the hearing to refresh a witness's recollection. So it was not the kind of judicial document that needs to be made public.The report remains under wraps.

Restrictions on artist speech in NYC do not violate First Amendment

Everyone loves First Amendment cases ... but they are so hard to win! The government has much leeway in regulating speech in the public square, so long as the regulation is not directed at the speaker's message. This case drives that point home, and it throws in an important ruling on the deposability of high-ranking government officials.

The case is Lederman v. New York Parks and Recreation, decided on September 25. The plaintiffs are visual artists who challenged the City's rules governing the sale of artwork in public. In 2010, the City said artists may sell without a permit so long as they follow certain rules "relating to their activities, such as restrictions on the size and placement of their vending tables." In Union Square Park, portions of Central Park and elsewhere, "expressive-matter vendors" may only vend in limited designated spots on a first-come-first-serve basis. These rules are legal.

Under the "time, place and manner" doctrine, the government may regulate the time, place and manner of speech in public if the rules are content-neutral, are narrowly-tailored to serve a significant government interest and leave ample alternatives for the speech. The time, place and manner rule is quite friendly to the government, and it dooms the plaintiffs' case because they apply to all artist-vendors and alleviate congestion and preserve the aesthetics of the parks. The more restrictive regulations enacted in 2010 focus on the most heavily-used areas in the City. Government officials have no discretion in enforcing the rules so there is no fear or favor in issuing permits.

The plaintiffs wanted to take depositions of the Mayor and his deputy. The Supreme Court 72 years ago said that high-ranking governmental officials may avoid depositions in certain instances. Other Circuits have fleshed out this rule. Believe it or not, the Second Circuit has never addressed this. It does so now, holding:

to depose a high-ranking government official, a party must demonstrate exceptional circumstances justifying the deposition -- for example, that the official has unique first-hand knowledge related to the litigated claims or that the necessary information cannot be obtained through other, less burdensome or intrusive means. High-ranking government officials are generally shielded from depositions because they have "greater duties and time constraints than other witnesses." If courts did not limit these depositions, such officials would spend "an inordinate amount of time tending to pending litigation.

Plaintiffs made no showing of any great need to depose the Mayor and his deputy. So the district court got it right in rejecting that effort.

The law does not provide relief for every injustice

It's a rude awakening for law students when they first learn that the government had almost no affirmative right to protect you from harm. This principle draws from common-law, and the Supreme Court said in the DeShaney case (1989) that Due Process Clause offered no protection under horrible facts involving a boy who was badly beaten by his father. This case reacquaints us with that rule.

The case is Velez v. City of New York, decided on September 18. Velez was a government informant who told the lawmen where the criminals were. When the cops went to the the apartment of some drug/weapons criminals, Velez was standing in the hallway for some reason (he had appeared unexpectedly). The criminals must have seen Velez even though the police shunted him aside. Velez was later shot and killed outside the apartment. His deathbed confession said that "Sonny shot me." Sonny was the guy that Velez had initially called the police about. The jury ruled for the police and found that the police did not owe Velez any duty of care under state negligence law.

The Court of Appeals (Lynch, Lohier and Carney) affirms. The results are tragic, but the law does not require the police to protect you unless there is a "special relationship" between you and the police. Here is the law governing special relationships:

To establish a special relationship beyond the duty that is owed to the public generally, four elements must be present: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.

You may think there was such a relationship since Velez was an informant and he was killed during a raid, but the jury found that the officers had no knowledge that their inaction could lead to harm to Velez. Without that knowledge, there was no special relationship. The fact that Velez was a confidential information does not mean as a matter of law that he had a special relationship with the police."Although a municipality 'owes a special duty to use reasonable care for the protection of persons who have collaborated with it in the arrest or prosecution of criminals,' such a duty attaches only 'once it reasonably appears that [the collaborators] are in danger due to their collaboration.' Thus, the fact that Velez had provided information to the police does not, by itself, establish the existence of a special duty; whether such a duty exists depends on ... factors [that include] the officers’ knowledge of a danger to Velez and reliance by him on police protection." The jury found no such special duty, and the Court of Appeals says the record supports that finding.

Threats to poison the inmate support First Amendment claim

Another pro se inmate litigant wins an appeal against the State Attorney General's office. This happens from time to time. In this case, the inmate successfully argues that a jury may find that he was the victim of First Amendment retaliation in jail.

The case is Ford v. C.O. Palmer, a summary order decided on September 24. Ford claimed that the corrections officer retaliated against him for reporting that did not give Ford hot water for his Ramadan breakfast. The district court threw out this claim sua sponte, which probably means that the State did not have to even file a formal motion to win the case. The Court of Appeals (Calabresi, Livingston and Chin) says Ford states a claim.

Ford alleges that a corrections officer threatened "to put some kind of substance in plaintiff’s hot water for writing complance [sic] and grievances to defendant Smith for being denied his right to practice his religion.” Is this a threat to poison the plaintiff? It might be. The Court of Appeals says "the complaint alleges that Officer Law threatened to poison Ford in retaliation for the statements Ford made." While the district court said that "verbal threats must be more definite and specific than Officer Law’s alleged threat in order to constitute 'adverse action,' [i]n fact, in this context, the vague nature of the alleged threat—i.e., not telling Ford when or how Officer Law planned to poison him—could have enhanced its effectiveness as a threat and increased the likelihood that a person of ordinary firmness would be deterred  from filing additional grievances."

So the holding is that a threat to poison the inmate is an adverse action under the First Amendment. A second holding is also interesting. The district court said that plaintiff did not really have a retaliation claim because the threat to poison plaintiff's water did not deter him from filing more grievances. The Court of Appeals rejects this reasoning. "As we have stated, the 'objective test [for First Amendment retaliation] applies even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits.' Moreover, the record contains evidence that plaintiff was in fact deterred on one or more occasions from accepting hot water from Law."

Court strikes down intrusive genital examination

The Court of Appeals holds that the Constitution prohibits requiring a convicted sex offender to regularly submit to "penile plethysmography testing," an intrusive test that measured his reaction to pornography. The test simply goes too far.

The case is United States v. McLaurin, decided on October 3. After McLaurin violated the terms of his probation in failing to keep authorities notified of his address, he was sentenced to a prison term and five years of supervised release that required him "to participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer.” Here is what the test entails:

This examination involves the use of a device know as a plethysmograph which is attached to the subject’s penis. In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be “properly” calibrated. The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has. The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.

You can challenge a government policy as outrageous under a catch-all doctrine called "substantive due process," which says that the Due Process Clause prohibits liberty restrictions that lack any justification. These challenges are difficult to win because courts do not want to interfere with the workings of the democratically-elected branches of government. But there are limits to what the government can get away with, and this is one of them.

Judges Calabresi and Parker jointly write the opinion (Judge Cabranes is in agreement). They write that "[t]he Government is unable to say, except with vague generalities, how the use of the device amounts to “treatment,” and is unable to point to any expected, much less tangible, benefits to McLaurin from the testing. In other words, the Government has made no showing that this exceedingly intrusive procedure has any therapeutic benefit, and none is apparent to us." "But even assuming that the procedure is “reliable,” we fail to see how it would confer any value as correctional treatment. To begin with, the procedure inflicts the obviously substantial humiliation of having the size and rigidity of one’s penis measured and monitored by the government under the threat of reincarceration for a failure to fully cooperate. And even if the machine could accurately monitor and record the extent or intensity of a convict’s prurient interests (a proposition about which we have serious doubts), the goal of correctional treatment during supervised release is properly directed at conduct, not at daydreaming."

In addition, the test has not been shown to protect the public. "Even if we were to consider the purported correlation between increasing penis size and recidivism to be strong, the correlation would be irrelevant. The testing could not help to protect the public unless the results were used to justify further detention or more restrictive conditions of release. But that could not occur because McLaurin had already received a fixed term of incarceration followed by a fixed term of supervised release, neither of which could be altered by a poor test score." The Court adds, "we see no reasonable connection between fluctuating penis size and public protection."

In the end, this intrusive test has nothing to do with the defendant's crime, which involved photographing his daughter topless ten years ago. He plead guilty for failing to register as a sex offender. "Ten years passed between that offense and the instant failure to register, and McLaurin has not been convicted or accused of any substantively sexual crime in that period. We fail to see any reasonable connection between this defendant, his conviction more than a decade ago, his failure to fill out paperwork, and the government-mandated measurement of his penis."

He made too much money to qualify for overtime pay

You are entitled to overtime pay under the Fair Labor Standards Act (FLSA). But there are many exceptions. This case highlights one of them.

The case is Anani v. CVS RX Services, decided on September 20. If you work more than 40 hours a week, you get time-and-a-half overtime pay. But if you make too much money and handled executive, administrative or professional duties, you are not entitled to that benefit. Plaintiff worked for CVS as a pharmacist until he resigned in 2009. His total compensation per year was more than $100,000. Of course, as a pharmacist, he was a professional.

Numerous regulations interpret the FLSA, including the one that dooms Anani's case. Employees who make "not less than" $455.00 per week are exempt from the overtime rules. Plaintiff exceeded that salary each week. Another regulation says that employees are exempt from overtime rules if they earn at least $100,000 per year. So he does not get the overtime.

Plaintiff argued that the exemption does not apply to him. Working with the FLSA regulations, he argues that "that his total earnings so substantially exceeded his guaranteed salary -- slightly less than 2 to 1 – that the relationship between the guaranteed salary and his total earnings was unreasonable." The Court of Appeals (Winter, Straub and Chin) does not get this argument at all. It took over a year for the Court to decide this case, perhaps because the regulations are tricky. The Court drops a footnote that asks future litigants to brief a few particular issues arising from those rules to help the Court untangle them.

Plaintiffs' win is vacated as wage freeze claim is for the state court

Nassau County was in bad financial shape in 2011, when the Nassau Interim Financial Authority (NIFA) imposed a wage freeze on public employees, who challenged its legality in court under the Contracts Clause of the U.S. Constitution. The district court ruled in the employees' favor under New York State law. The Court of Appeals reverses because the district court had no jurisdiction over the state law claim.

The case is Carver v. Nassau County Interim Finance Authority, decided on September 20. The wage freeze forced the County to breach the collective bargaining agreement with certain police unions, who sued under federal and state law. The district court had jurisdiction over the lawsuit because it raised a federal constitutional claim, but it ruled on the state law claim without addressing the federal claim.

Yes, federal courts have authority to resolve state law claims. You can bring federal and state claims in the same lawsuit. The federal court has discretion to decide the state law claim, but that discretion is not unbridled. "Abuse of discretion" arguments are hard to win in the Court of Appeals, but this one prevails.

If the state law claim involves an unresolved issue that the state courts are better equipped to handle, then the federal court should not hear the case. The Court of Appeals (Korman [D.J.], Carney and Pooler) applies that rule here, sending the case back to the district court to take up the federal claim only.

the construction of the provision of the NIFA Act at issue raises an unresolved issue of state law – the interpretation of a poorly drawn statute – that should be resolved by the New York state courts because the manner in which the statute is construed implicates significant state interests. As we have previously observed, “[w]here a pendent state claim turns on novel or unresolved questions of state law, especially where those questions concern the state’s interest in the administration of its government, principles of federalism and comity may dictate that these questions be left for decision by the state courts.”

Who knows? Maybe the plaintiffs will still win the case in federal court under the federal claim. Or maybe the state court will rule in their favor. That day is far off into the future, though. For now, the plaintiffs' victory is yanked away from them.

Gratuitous force violates Section 1983

This pro se plaintiff alleged that state troopers subjected him to excessive force. The district court threw out the case. The Court of Appeals reinstates the case, holding that it does not take a vicious beating to make out an excessive force claim.

The case is Phelan v. Sullivan, a summary order issued on September 17. The district court said that plaintiff's injuries were minimal and he therefore did not have enough evidence for a jury trial. As the trial court saw it, "Phelan did not allege any specific injury or allege that he sought medical treatment, and that the force used was reasonable to effectuate his arrest. The district court also stated that, at most, Phelan alleged that '[Defendants-Appellees] broke down the door to [Phelan’s] apartment without warning, tackled him to the ground, placed their feet and knees on his back, twisted his arms behind his back, and handcuffed him.'”

Sounds like a weak case. Except that it's not, at least on paper. There was more evidence than that. The Second Circuit (Calabresi, Livingston and Chin) noted that "Phelan alleged that several of the Defendants-Appellees punched, kicked, and beat him while effecting his arrest, and that Defendants-Appellees’ actions nearly broke his arm."

The Second Circuit held in 2004 that excessive force claims exist when the police use gratuitous force against an arrestee. And the Court said in Robison v. Via, 821 F.2d 913 (2d Cir. 1987), that the plaintiff (who did not seek medical treatment for her injuries) had a case "where the plaintiff alleged that a defendant 'pushed' her against a car door, 'yanked' her out, 'threw [her] up against the fender,' and 'twisted [her] arm behind [her] back,' and that she had suffered bruises lasting several weeks." This case is like Robison, and it goes to trial.