Thursday, January 31, 2013

Religious speech may be restricted at school-sponsored graduation ceremony

The Court of Appeals has ruled that an upstate New York school district had the right to censor a student's middle school graduation speech that included religious language.

The case is A.M. v. Taconic Hills Central School District, a summary order decided on January 30. It all started when the plaintiff's class was moving up from middle school to high school. She was allowed to deliver a brief speech at the school-sponsored ceremony. The final sentence of the speech said, “As we say our goodbyes and leave middle school behind, I say to you, may the LORD bless you and keep you; make His face shine upon you and be gracious to you; lift up His countenance upon you, and give you peace.” The principal told A.M. to take out the religious reference, and she complied. Then she sued under the First Amendment.

The Supreme Court held 50 years ago that mandatory school prayer is unconstitutional. Over the years, that holding has been extended to prayer and religious statements at graduation ceremonies. Another line of cases (including the Hazelwood decision) gives school administrators discretion to control student speech in school-sponsored newspapers and events. The graduation ceremony was school sponsored, the Court of Appeals (Chin, Droney and Gleeson [D.J.]) says, in part because "the Ceremony was set to occur at a school-sponsored assembly, to take place in the school [auditorium], to which parents of the students were invited.” Had A.M. given the religious speech, reasonable observers would have believed that the school district had endorsed it. The lenient standard under Hazelwood thus governs this case.

The next question is whether the school's directive that A.M. edit out the religious message was reasonable under Hazelwood. It was, because it was a content-based restriction, which administrators can impose in order to avoid an Establishment Clause problem. The plaintiff argued that this was actually a viewpoint-based restriction, which the district cannot impose without a compelling interest. (The plaintiff has a better chance at victory in challenging a viewpoint restriction). But the Second Circuit says that defendants excluded a content-based "general subject matter" (religious speech) from the event rather than a viewpoint-based "prohibited perspective" restriction. In other words content-based restrictions exclude an entire arguably inappropriate subject matter (such as religion) while viewpoint-based restrictions narrow student dialogue or debate on an issue. It's a fine line, but one that makes all the difference in determining what school administrators can get away with.

This case raises a complex issue that consumes nine pages of analysis, an anomaly for summary orders. My guess is that the plaintiff will petition this case for Supreme Court review.

Wednesday, January 30, 2013

Public employee due process claim is tossed

Plaintiff was reappointed on four occasions to his "Building Official" position. Each reappointment got him another four years. The Board of Selectmen in this Connecticut community had discretion to bring plaintiff back each time. After plaintiff filed a grievance protesting a town official's effort to restrict his speech activity, he filed a First Amendment lawsuit. After plaintiff filed the lawsuit, the town hired another Building Official to replace plaintiff. He sues under the Due Process Clause.

The case is Looney v. Black, decided on December 21. The district court denied defendants' motion to dismiss the claim, but the Court of Appeals reverses and dismissed the claim on qualified immunity grounds because the law was not clearly established that town officials violated Looney's due process rights. You need a constitutionally-protected right to continued employment to maintain a claim like this, but the Second Circuit (Straub and Jacobs) says the law was not clear that Looney's rights were violated, and the case is tossed. Judge Droney dissents.

Circuit precedent holds the Due Process Clause creates a property right if the plaintiff "had been promised something explicitly -- either verbally, or in the terms of the applicable collective bargaining agreement -- about specific conditions during the future term of their employment."

Reviewing the cases, the Second Circuit says, "Ezekwo was told both in writing and in person that she could expect to be chief resident during her third year of residency. Ezekwo v. Health and Hospitals, 940 F.2d at 782 (2d Cir. 1991). Ciambrello was working pursuant to a collective bargaining agreement that stated he would not be demoted without engaging in incompetence or misconduct. Ciambrello v. County of Nassau, 292 F.3d at 319 (2d Cir. 2002). Harhay was contractually promised that she would be reappointed to an available position. Harhay v. Town of Ellington, 323 F.3d at 212 (2d Cir. 2003)."

Those cases do not help Looney. No one promised him anything. He creatively argues instead that provisions of Connecticut law and certain statements made to him at the start of his employment along with the fact that he was repeatedly reappointed to his position for years and years created a course of conduct giving rise to a protected property interest in his position that could not be deprived without due process, i.e., a hearing. But state law does not provide for that kind of expectation, and the fact that the Board kept reappointing him to the position does not trigger protection under the Due Process Clause. Even in his last appointment, the Board made no explicit promises.

Tuesday, January 29, 2013

Counsel's technical error kills off $2.7 million appeal

The Court of Appeals has dismissed as untimely an appeal in a challenge to a $2.4 million judgment because the lead counsel did not file the notice of appeal in time. The Second Circuit says it was the lawyer's fault because his failure to update his email address meant that the ECF system sent the judgment to the wrong location.

The case is Communications Network International v. MCI WorldCom, decided on January 24. This is a bankruptcy dispute. The district court ruled in favor of MCI in the amount of $2.7 million. Judgment was entered on September 24, 2010, and the notice was sent by the Electronic Case Filing system to the email address that counsel registered with ECF when he worked for a different law firm. When counsel moved to a new law firm, he did not update his email address with the ECF system. So the judgment went to the old address, and counsel did not see it until long after the deadline to file a notice of appeal. The district court took mercy on counsel and extended the time to file the notice of appeal. The Court of Appeals reverses, and the appeal is dismissed.

The 30 day deadline to file a notice of appeal is jurisdictional, which means it cannot be changed. Except that sometimes it can be changed, for good cause, i.e., if the clerk's office forgets to send out the judgment or there is some other "excusable neglect." The district court has discretion whether the extend the deadline, but that discretion is not unlimited. Here, the district court abused its discretion. Writing for a 2-1 majority, District Judge Kaplan (sitting by designation) writes, "The purpose of the rule was to ease strict sanctions on litigants who had failed to receive notice of the entry of judgment in order to file a timely notice of appeal, whether the fault lay with the clerk or other factors beyond the litigants’ control, such as the Postal Service. There is nothing in the history of the rules, however, to suggest that the drafters sought to provide relief when the fault lies with the litigants themselves."

Here, the late filing was counsel's fault. When he signed onto the ECF system and created his profile, he agreed to update his contact information. We all agreed to do this, whether we remember doing this or not. Counsel must have forgotten to update his email address when he changed law firms. So the $2.7 million judgment cannot be challenged on appeal. A bad day for the client that wanted to take up the appeal, and a horrendous day for counsel, whose name and email addresses are sprinkled all throughout the decision.

Thursday, January 24, 2013

50-50 deal on Title VII retaliation claims

A double-plaintiff discrimination claim goes to trial on the hostile work environment claims, but only one of the plaintiffs goes to trial on his retaliation claim. The case is Rivera v. Rochester Genesee Regional Transportation Authority, decided on December 21. Read all about the hostile work environment claims here. Both plaintiffs claimed that management retaliated against them for complaining internally about the work environment.

Let's start with Rivera, who goes to trial because co-workers harassed him over his national origin. Under the Supreme Court's Burlington Northern precedent, in order to win a retaliation claim, the employer's reaction to the good-faith complaint has to dissuade a reasonable worker from making or supporting a charge of discrimination. While context matters in this equation and the Court will look at the alleged acts of retaliation in the aggregate and not piecemeal, Rivera does not have enough. "Rivera points to two disciplinary citations he received for insubordination over a two-year period, his assignment to drive particularly 'dirty buses,' one late overtime payment, and Lift Line’s one-time refusal to give him a half-day off for a doctor’s appointment." But, the Court of Appeals (Lohier, Droney and Kearse) says that Rivera "presented no evidence that they reflected anything other than RGRTA’s 'enforce[ment] [of] its preexisting disciplinary policies in a reasonable manner.'”

Talton, though, gets a trial on his retaliation claim. His supervisor, Tibero, told Talton that filing complaints of discrimination could get him fired. And, when Talton told Tibero about the hostile work environment, Tibero responded, "suck it up and get over it, nigger!" If that does not dissuade someone from complaining about discrimination again, then I don't know what would. The Court of Appeals agrees with me: "In our view, such discriminatory harassment from a supervisor may alone suffice to establish an adverse employment action, as 'unchecked retaliatory co-worker harassment, if sufficiently severe, may constitute adverse employment action so as to satisfy the [third] prong of the retaliation prima facie case.'” In contrast, when other co-workers complained about Talton's alleged disruptive behavior in the workplace, management took care of it expeditiously. "A reasonable juror could infer that RGRTA’s swift response to the complaints by Talton’s co-workers was designed to, and did, send a message that Talton’s employment at Lift Line was in serious jeopardy as a result of the EEOC charges."

Tuesday, January 22, 2013

Court of Appeals affirms $1.37 million verdict for Connecticut whistleblower

The Court of Appeals has upheld a $1.37 million verdict in favor of a Pfizer employee who was fired after speaking out on health and safety issues in the workplace. This case tells us that the employment laws in Connecticut are much more favorable to employees than in New York.

The case is McClain v. Pfizer, Inc., a summary order decided on December 13. Retired Supreme Court Justice Sandra Day O'Connor heard this appeal along with Second Circuit Judges Dennis Jacobs and John Walker.

If you handle employment cases in New York, you know that, for plaintiffs, the private-employee whistleblower law creates hurdles as large as Mount Everest. Not so in Connecticut, where employees are free to speak out on matters of public concern, just as public employees may do so under the First Amendment. Connecticut law says that the rights of private employees are identical to public employees in this regard. The Connecticut Supreme Court said in 1999 that this remedial statute "deserves a generous construction that implements its purpose at one of the important places, the private workplace, in which those rights may be impaired." I can say with confidence that language like this is nowhere to be found in any court ruling interpreting the New York private employee whistleblower law.

According to the district court ruling, McClain was fired after complaining about health and safety problems. The district court wrote in denying Pfizer's Rule 50 motion:

McClain, who worked as a molecular biologist at Pfizer, complained about an odor in her laboratory and the placement of desks near laboratory benches where experiments were performed. Pfizer argues that [Connecticut law] does not protect those complaints because they were personal matters and did not relate to public health and safety. Although McClain clearly had a personal interest in eliminating the odor and keeping a safe distance between her desk and laboratory bench, “safety in the workplace is a matter of public concern.” Munafo v. Metropolitan Transp. Auth., 285 F.3d 201, 212 (2d Cir. 2002). Pfizer has not cited any law requiring McClain to be a completely disinterested party when speaking about workplace safety. Therefore, the jury reasonably could find that McClain’s complaints addressed a matter of public concern.
The Court of Appeals also affirms the punitive damages award in the amount of $468.843.80. As for the remaining damages, for pain and suffering, the jury gave plaintiff $685.000 for pain and suffering. (The jury awarded her the same amount of money for lost wages and other economic damages). Pfizer said the pain and suffering evidence was vague and conclusory. Although defendant did not appear to challenge this award on appeal, it's worth noting what the the district court said in rejecting Pfizer's post-trial argument that the jury awarded her too much money:

McClain argues that her testimony showed that she lost sleep and felt sad, stressed, and frustrated about Pfizer’s lack of responsiveness to her complaints. McClain felt stressed about contracting an illness potentially from exposure to biological materials at Pfizer. She feared her supervisor, who had raised his voice and used profanity when speaking to her. Finally, she had to endure a significant period of unemployment following her termination. Considering the jury’s critical benefit of hearing McClain’s live testimony, the Court cannot determine as a matter of law that manifest injustice was done. Pfizer has failed to cite any law requiring the Court to disturb the jury’s award of noneconomic damages.

Wednesday, January 16, 2013

Context is crucial in hostile work environment cases

Hostile work environment cases require the plaintiff to show that the sexual or racial harassment was severe or pervasive. Enough harassment will get you a trial in these case if the employer did not promptly try to remedy the problem. The Second Circuit has been plaintiff-friendly in this area, but some cases are still chucked aside for lack of evidence.

The case is Solomon v. Southampton Union Free School District, a summary order decided on December 10. As the Court of Appeals notes, plaintiff "points to many examples of alleged discriminatory acts to support her hostile work environment claim." But context is crucial in these cases. Viewed in context, a seemingly offensive remark might not create a hostile work environment. That is the case here.

Plaintiff alleged that the principal, Frazier, hung a confederate flag in the school hallways. But there's more to this. The Court of Appeals (Sack, Chin and Lohier) says that "the confederate flag was actually part of Georgia's state flag, which Frazier had hung along with several other state flags." Another example of this is that Frazier told plaintiff to "serve coffee and cake" to her white teaching aides. In isolation, this evidence might also show that Frazier treated plaintiff like a servant, good evidence for a hostile work environment case. But, in her Rule 50-h hearing (conducted when plaintiffs file a Notice of Claim), plaintiff said that "Frazier thought there was a communication problem between Solomon and her teaching aides, and that another school official ... 'chimed in and said, 'you need to pat them on the back, and you should buy them coffee and cake and make nice with them.''" That's not racist behavior, then, but good personnel management.

What we learn is that context is crucial in cases like this. An off-hand comment may seem offensive, but in context, it was not. This is why not every case goes to trial. The courts are looking for the full story behind these cases, and that's why we take depositions. A good examiner can find a way to show that these comments amount to very little.

Monday, January 14, 2013

Stray handgun triggers public-safety exception to Miranda

Firearms are all the talk these days, a few weeks after the school shooting in Newtown, Connecticut. Society does not know what to do about mass shootings, but we can all agree that guns are dangerous. For that reason, this fellow loses his criminal appeal.

The case is United States v. Ferguson, decided on December 6. As you know from watching too much television, the police have to read your Miranda rights upon arrest. But there is a "public safety" exception to the Miranda rule that says the police can interrogate the defendant without Miranda to protect everyone else. This case once again reminds us of the chaos that befalls human civilization as the defendant fired a gun into the air after a woman threatened him with a bottle in a public place. When Ferguson was taken into police custody, they did not read his Miranda rights and later recovered the gun in his sister's apartment. Of course, under normal circumstances, anything he said during that interrogation would be inadmissible at trial. But, like I said, there is a public safety exception to Miranda, and it applies here, which means the conviction for unlawfully possessing a firearm is affirmed.

During the interrogation, the police learned that no one had recovered Ferguson's weapon. The gun could have been lying around anywhere in a densely-populated areas, the police feared. A child might find the gun. So the police "wanted to make sure that we could try and find out where this gun was as soon as possible." The police thus began pelting him with questions about the whereabouts of the weapon. They thought that Miranda warnings "might have scared Ferguson where he wouldn't tell him where the gun was." And that's how the police found out where the gun was.

It's all legal under the public safety exception to Miranda, even if the police made a conscious choice to push aside Miranda. The motion to suppress Ferguson's admissions -- which led to his conviction -- was properly denied, the Court of Appeals (Katzmann, Leval and Cabranes) says. This was not an investigatory interrogation where the police are solely trying to solicit testimonial evidence. Under those circumstances, Miranda applies. While the questioning did not take place on-the-spot (a common scenario in many public safety cases) and took place at the police station 1-2 hours after the incident, the police were concerned about an imminent threat to public safety. A functioning weapon was believed to be lying around somewhere, and the police had reason to believe that Ferguson had in fact possessed that gun.  

Friday, January 11, 2013

Jury must decide whether two upstate plaintiffs suffered hostile work environment

The Court of Appeals continues to give workplace harassment plaintiffs the benefit of the doubt in hostile work environment cases. In this case, it reverses summary judgment in a racial harassment claim that it deems a close call because some of the harassment was not explicitly racial.

The case is Rivera v. Rochester Genesee Regional Transportation Authority, decided on December 21. There are two plaintiffs here, Rivera (who is Puerto Rican) and Talton (who is black). Both guys worked with people who polluted the workplace with racial slurs.

Let's start with Rivera, who had a serious personal conflict with Folino, a senior mechanic who ran off with Rivera's wife and also called Rivera a "spic" and "Taco Bell" at least five times from 2003 through 2007. These guys hated each other, in part because of the wife-steal and in part because Rivera is Puerto Rican. Folino also called Rivera these names outside of Rivera's presence. Some of Folina's harassment (staring at Rivera menacingly and tampering with his time card slot, for example) was not explicitly ethnic, however. Then, from March 2006 through September 2007, Folina further harassed Rivera in non-ethnic terms by, for example, swerving his car at Rivera and generally undermining Rivera's ability to do his job. During this time, there was some explicitly ethnic harassment.

The Court of Appeals (Kearse, Lohier and Droney) reverses summary judgment on Rivera's hostile work environment claim. Judge Lohier sets out the dilemma for the Court of Appeals:

From 2003 to 2007, Rivera filed several complaints with RGRTA’s Human Resources Department regarding Folino’s conduct, none of which referenced Folino’s use of ethnic slurs or harassment based on national origin. Indeed, Rivera’s testimony that Folino and others chronically directed ethnic slurs at him is somewhat belied by his early assertions that the “hostile work environment” he experienced was a result of his personal conflict with Folino. For example, one of Rivera’s complaints explicitly attributed Folino’s harassment to their personal conflict, and criticized Folino for “bring[ing] these very personal issues to work . . . causing a very uncomfortable and hostile work environment.” Rivera’s NYSDHR complaint, which, in contrast to prior complaints, asserted that Folino’s conduct constituted national origin discrimination, again made no reference to Folino’s use of ethnic slurs or other ethnically based harassment. If the instances of ethnic name-calling were "sufficiently severe or pervasive to alter the conditions of [Rivera’s] employment and create an abusive working environment,” it is reasonable to expect Rivera to have adverted to them at least once in his lengthy correspondence with RGRTA’s Human Resources Department as well as the NYSDHR. 
That's why this case is a close call for the Second Circuit. But the Court decides that the jury should determine what motivated the hostile environment: personal animus or Rivera's national origin. Looking at the harassment "cumulatively in order to obtain a realistic view of the work environment," the Court notes that Rivera testified in sufficient detail that his antagonists called him a "spic" three times and chanted slurs about his national origin about five times. While Rivera's written pre-litigation complaints attributed some of the harassment to personal animus, unlike cases where the Court of Appeals affirms summary judgment because the plaintiff contradicted himself throughout the litigation,

Here, by contrast, Rivera does not allege the occurrence of something that he previously described as not happening. He claimed ethnic discrimination in his 2007 complaint to the administrative agency, as was required for purposes of exhaustion. In his administrative and court assertions he has not been inconsistent in claiming that he was subjected to ethnic slurs. Any variance in those assertions has been in the number of times he was subjected to such slurs. That Rivera did not complain of ethnic slurs to RGRTA may lead a factfinder to find that claim not credible, but there is no real, unequivocal, and inescapable contradiction ... , and matters of credibility are not to be determined on a motion for summary judgment. In addition, ... Rivera’s testimony was corroborated by other independent evidence, including the testimony of Talton. 
Since Rivera was not required to show that national origin was the sole reason for the harassment and he presents "(barely) enough evidence -- both in the form of ethnic slurs and the broader bullying and physical harassment" to support a verdict under Title VII, summary judgment was improper. This reasoning highlights Rule 56 in its purest form.

As for Talton, his case is clearer. Co-workers called him racial slurs. Two of them called Talton a "nigger" and a supervisor tole Talton to "get over it, nigger" when he complained about this. Other co-workers also called Talton this slur in physically threatening ways. Talton's testimony was sufficiently detailed to support the claim and his contemporaneous EEOC charge undermines defendant's argument that the allegations lacked enough detail. The Court of Appeals further notes that the word "nigger" is so powerful that it's quite difficult for defendants to claim the lack of any hostile work environment in the face of plaintiff's sworn testimony. So both plaintiffs go before a jury on their hostile work environment claims. It should be quite a trial. 

Wednesday, January 9, 2013

Sexual harassment claim goes to trial under NYC law, not NYS law

If you have a case in New York City, other than Title VII, there are two employment discrimination laws to chose from: The State and City Human Rights laws. This case shows us how they differ.

The case is Hernandez v. Kaisman, a First Department ruling decided on December 27. The plaintiffs worked for a dentist who sent his employees offensive emails that joked about sex and were often quite explicit. The defendant also told Hernandez that she needed breast implants and said he enjoyed it when she bent over and could see her underwear. He made physical gestures about oral sex and told another woman that she needed to lose weight, slapping her rear end in the process. He left condoms lying around the workplace and spoke often about his affinity for large breasts. The dentist did a few other things, but you get the picture.

The First Department disagrees with the trial court that said this was not gender-based behavior since men were exposed to it also. "Considering the totality of the circumstances, a jury could reasonably determine that the emails were sent in an effort to specifically provoke a reaction from the women in the office, and that they were therefore singled out from the male employees."

Turning to the distinctions between state and city law, the Appellate Division says that the city law only requires proof that "the plaintiff has been treated less well than other employees because of her gender." Under state law, the plaintiff has to show that the work environment was "severe and pervasive," which means that boorish behavior does not create a hostile work environment. Plaintiffs have no claim under state law. The Appellate Division says:

There is no question that the emails that defendant circulated in the office were inappropriate. However, their distribution by defendant is closer to what would be described as "boorish" behavior than the "severe" types of incidents which have been found to create a hostile workplace environment ... The only email that contained what could arguably be described as pornographic material was the video excerpt entitled "Birthday Vibrator" and it does not appear that the clip was explicit. The other offensive incidents, including defendant's touching Herarte's rear end and suggesting she "tighten" it up, telling Hernandez she should get a breast enlargement and that he "enjoyed" looking at her exposed underwear, and generally commenting that he liked large-breasted women, are too sporadic to be considered "pervasive." 

But the plaintiffs do have a claim under the city law. The Court says, "we can only dismiss the latter claim if we determine that this is a 'truly insubstantial case' in which defendant's behavior cannot be said to fall within the 'broad range of conduct that falls between severe and pervasive' on the one hand and a petty slight or trivial inconvenience' on the other."

Viewed independently, defendant's dissemination of emails containing mildly offensive sexual media content may not have been enough to rise to the level of a hostile environment under the City HRL. However, the overall context in which the emails were sent cannot be ignored. The record supports plaintiffs' claim that defendant took a perverse pleasure in demeaning and embarrassing his female employees. This was obvious from his statements, related by plaintiffs, concerning, in the case of Hernandez, the size of her breasts, and in the case of Herarte, the size of her backside. While such statements may have been isolated, that is irrelevant under the City HRL, since "[o]ne can easily imagine a single comment that objectifies women being made in circumstances where that comment would, for example, signal views about the role of women in the workplace and be actionable." Here, the comments and emails objectifying women's bodies and exposing them to sexual ridicule, even if considered "isolated," clearly signaled that defendant considered it appropriate to foster an office environment that degraded women. 
Astute readers will notice that the First Department repeatedly says that, to prevail, the plaintiff has to show a "severe and pervasive" work environment. But the U.S. Supreme Court, in outlining the parameters, has always said the plaintiff needs to prove a "severe or pervasive" work environment. The Second Circuit also applies the "severe or pervasive test." In Pucino v. Verizon Wireless Commications, Inc., 618 F.3d 112, 119 (2d Cir. 2010), the Court of Appeals said, "a  plaintiff need not show that her hostile working environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered her working conditions." Under this distinction, "[Plaintiff] must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of [Plaintiff's] working environment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). Since one incident may be severe but not pervasive, the and/or distinction can make a difference in whether the plaintiff can reach a jury.

What makes this all so strange is that the Appellate Division in this case cites Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295 (2004), in the context of setting out the "severe and pervasive" legal standard. But in Forrest, the New York Court of Appeals articulated the "severe or pervasive" test, further stating in a footnote that state courts follow federal standards in cases like this. Id. at 330 n.3. The Appellate Division in the Hernandez case even cites that footnote. So what we have is not a new legal standard under the State Human Rights Law but sloppy opinion-writing.

Tuesday, January 8, 2013

The police cannot pull you over for giving them the finger

Have you ever wondered what would happened if you gave a police officer the finger? Can you be arrested for it? This guy gave an officer the finger. He was arrested, the charges were dropped, and now he can bring a lawsuit.

The case is Swartz v. Insogna, decided on January 3. This case reminds us once again that often the most obnoxious behavior is legal. John Swartz and his wife were driving around in an upstate New York village. Swartz was a passenger in the car when they passed a police officer using his radar device. According to the court, "John expressed his displeasure at what the officer was doing by reaching his right arm outside the passenger side window and extending his middle finger over the car's roof." While Swartz's car was not speeding or breaking any other laws, the police officer pulled them over and ordered them out of the car. John approached the officer and demanded that they speak "man to man." John then thought better of it and walked away, mumbling to himself, "I feel like an ass." John was arrested, booked and charged with disorderly conduct. The charge was later dropped, and John sues the police.

While the district court dismissed the case on summary judgment, the Second Circuit (Newman, Lynch and Lohier) reinstates the case for trial. In stopping the car, the officer seized John under the Fourth Amendment. He may only do so if he reasonably believes the motorist or passenger is engaging in illegal activity. But John was doing nothing illegal. The officer says he was suspicious because "he thought John 'was trying to get my attention for some reason' and that he 'was concerned for the female driver." This defense doesn't fly. The Court of Appeals says:

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.
Looking at the evidence from John's point of view (as this is a summary judgment motion), no reasonable officer could find that he engaged in disorderly conduct. The police had no right to stop the car. The disorderly conduct arrest was also unlawful. John mumbled, "I feel like an ass" after he said in a normal voice that he wanted to talk the officer "man to man." This is not disorderly conduct; there was no threat to public order. John didn't call himself an "ass" by shouting it out loud on Main Street. As he mumbled it, John did not threaten to breach the peace.

If you're into that kind of thing, a footnote to the case cites a scholarly article on the use of the middle finger and the law. That article can be found at this link

Monday, January 7, 2013

One-on-one stabbing death = depraved indifference murder

The Court of Appeals continues to grapple with habeas petitions in which the convicted inmate tries to exploit potential loopholes in New York's laws governing intentional and depraved indifference murder. In a nutshell, if someone dies at the hands of someone else, a murder conviction requires intentional murder or depraved indifference to human life. This guy was convicted of depraved indifference, but he says now that the only reasonable interpretation of the evidence was that it was the killing was intentional, and that he therefore did not get a fair trial. The Second Circuit disagrees.

The case is Gutierrez v. Smith, decided on December 11. Gutierrez fatally stabbed someone. He said the victim ran into his knife and that he therefore accidentally killed him. The jury got him on depraved indifference murder. He says it could only have been intentional and that the conviction was improper because a one-on-one killing cannot as a matter of law constituted depraved indifference murder; it can only be intentional. The Second Circuit (Calabresi, Jacobs and Pooler) resolves this case on the basis of the state of the law at the time of Gutierrez's conviction. Under those cases, "an intentional murder could be done recklessly."

One New York Court of Appeals case from 1989 -- the "Polish roulette case" where the defendant loaded a gun with real and dummy rounds of ammunition and pointed the gun at the victim and pulled the trigger -- did find depraved indifference but not intentional murder where the defendant was reckless. Gutierrez's case is like that case. In the middle of a brawl outside a bar, he threatened people with a knife and accidentally stabbed a victim, and then right afterwards, he wielded his knife haphazardly without any regard to whether he was going to hurt someone. He also chased after the victim and stabbed him twice. Viewing the evidence in favor of the prosecution, although the killing was done face-to-face, the Court of Appeals says that the jury had a basis to find that Gutierrez did this with depraved indifference but without intent to kill.

The Court of Appeals agrees this is a close case, stating that "one might read New York law as precluding a conviction for depraved indifference murder on the facts of this case. ... But we do not believe that the New York Court of Appeals created an inflexible rule that would allow a single factor -- one-on-oneness -- to delimit the definition of the crime, without regard to other evidence of the defendant's mental state.

Friday, January 4, 2013

$1 million damages award in student harassment sustained on appeal

The Court of Appeals has sustained a high damages award for the student victim of racial bullying in a Dutchess County high school. I talk about the liability portion of the decision at this link. Now for the damages.

The case is Zeno v. Pine Plains Central School District, decided on December 3. The student bullying went on for 3.5 years. The jury found that the school was deliberately indifferent to the harassment, and it awarded the plaintiff, Anthony Zeno, $1.25 million. The trial court reduced that amount to $1 million, and the Court of Appeals (Cabranes, Chin and Livingston) affirms.

In assessing a damages award on appeal, courts defer to the jury's judgment. But defendant argued that the award was too high because Anthony only suffered garden-variety damages and therefore the low damages awards under Title VII (for workplace discrimination) should govern. The school district also argued that the damages award is out of line with comparable cases. The Court of Appeals rejects both arguments.

First, Anthony put on corroborating evidence of his pain and suffering. His mother and an NAACP advocate who intervened on his behalf testified about his "increasing frustration, loneliness, and other emotional anguish. While Anthony's testimony alone arguably might not support his claim of emotional distress ..., others who testified corroborated Anthony's suffering and distress." Yes, there is a Second Circuit case that says that Title VII plaintiffs need to corroborate their damages, Annis v. County of Westchester, 136 F.3d 239 (2d Cir. 1998). The Court (and defendants) cite that case from time to time, and there are cases that go the other way. But if you represent plaintiffs, it's good to have family and friends testify about the plaintiff's distress.

Second, Anthony suffered "substantially adverse educational consequences" through prolonged harassment which ruined the high school experience, hurt his grades and compelled him to accept a substandard diploma because he was unable to complete Regents requirements, a diploma that does not get him into college. This is a new holding for the Second Circuit.

Third, Title VII damages awards are not applicable to student harassment cases under Title VI and Title IX. Title VII cases are brought by adults; student are more vulnerable than Title VII plaintiffs, as the U.S. Department of Education has stated in in its policy pronouncements. The harassment was particularly humiliating because it occurred in front of friends, classmates and teachers. "The jury reasonably could have found that the harassment would have a profound and long-term impact on Anthony's life and his ability to earn a living."

Although the Court of Appeals cites only one other student harassment case that resulted in a $1 million damages award, Anthony's award does not "shock the judicial conscience," which is the legal standard. A footnote summarizes other damages awards in student harassment cases. Most of the cases yielded damages in the six figures. One case got the plaintiff $800,000, but that verdict was overturned by the trial court because the evidence did not support the claim on liability; still, the Second Circuit cites that vacated case in support of Anthony's damages award. "Given the severity, duration, and egregiousness of Anthony's unchecked harassment, his reduced compensatory damages was not outside the 'range of permissible decisions.'"

Wednesday, January 2, 2013

The Fourth Amendment is soft on crime

If you remember politics from the 1980's, it was the kiss of death if your political opponent said you were soft on crime. That's how George H.W. Bush got elected in 1988. Anyway, it may surprise you to know that much of the Bill of Rights exists to protect criminal defendants. Including the Fourth Amendment.

The case is United States v. Murphy, decided on December 4. The police nailed the two defendants and found drugs in the car. The stop and search was recorded on police video. This is the rare case where the government loses the suppression hearing; the district court ruled against the police, who made an illegal stop of defendants' car. The Court of Appeals (Calabresi, Lynch and Lohier) affirms, and the drug evidence is suppressed for good.

The police testified that they stopped the car for not signaling onto the highway exit. But the district court had a factual basis to find that, instead, the police pulled over the defendants for no reason by turning on the police vehicle's emergency lights. In fact, there was overwhelming evidence that the police pulled over the defendants this way, particularly through the police-generated video and contemporaneous paperwork. The government's contrary factual arguments are in vain; the Court of Appeals is siding with the district court's findings, reached after a two-day hearing.

The government next argues that even if the stop was unjustified, the search was legal because the defendants consented to it. The government is allowed to make this argument. "When consent to search is preceded by an unlawful government seizure, the evidence obtained from the search must ordinarily be suppressed unless the Government shows both that the consent was voluntary and that “‘the taint of the initial [seizure] has been dissipated.’” The facts favor the defendants here. The car was seized only moments before the defendants supposedly consented to the search. The police tried to pull off a tactical maneuver called the "Kansas Two Step" in which they step back for a moment while the defendants ponder whether to consent, but the Second Circuit is not buying it. The government also argues that the consent is untainted by the illegal stop because the trooper was "calm and respectful ... during the encounter." That may be true, but it's not the kind of change in circumstances that can separate the stop from the search.

The defendants also made incriminating statements. Those statements are also suppressed. The police did not properly read their Miranda rights. The Court of Appeals agrees with the district court that, for one defendant, the Miranda reading gave an incomprehensible waiver instruction. As for the other defendant, he did not knowingly waive his Miranda rights, either. There is no evidence that he was even read his Miranda rights to start with.

So the drug evidence is suppressed and so are the incriminating statements. The police blew it, and these guys walk. The judges in this case, at the district and appellate court level, are mostly former prosecutors. It was the Constitution that got the defendants off.