Monday, September 30, 2013

Ever hear of the "corrected affidavit" doctrine in search warrant cases?

This is an interesting case about qualified immunity and the Fourth Amendment. You can't sue police officers for executing a search warrant that was approved by a neutral magistrate, who only sign off on them if there's probable cause. But you can sue the police if they knowingly gave the magistrate false information to get the warrant in the first place. In this case, the officers gave the magistrate false information, and the plaintiff wins the appeal and the case is remanded.

The case is Sanseverino v. Chrostowski, a summary order decided on September 11. The following evidence summary tells us that plaintiff gets off to a good start in pursuing the lawsuit:

Plaintiff has raised a genuine issue of fact regarding whether Officers Michael Farrell and Joseph Lopa intentionally or recklessly made misstatements and falsehoods in the warrant affidavit. The affidavits of Omar Sanchez (“Sanchez”) call into question the incriminating statements he allegedly made regarding Anthony Sanseverino, including Sanchez’s identification in the photo array of Sanseverino as the man who had given him marijuana. Additionally, Antonio Sanseverino’s affidavit, based on his personal knowledge and experience, creates a dispute of fact regarding whether officers observed Sanchez “walk up the driveway” of Plaintiff’s residence at 72 Smalley Street or whether the driveway and the entrance were obscured.
The Court of Appeals says that "Issues of fact regarding alleged falsehoods or omissions in a warrant affidavit will defeat law enforcement officers’ qualified immunity defense on summary judgment only if the alleged falsehoods and omissions are material to a finding of probable cause." Under the "corrected affidavit doctrine," if “after crossing out any allegedly false information and supplying any omitted facts, the ‘corrected affidavit’ would have supported a finding of probable cause, then defendants are entitled to qualified immunity." Municipal defense lawyers will certainly use the "corrected affidavit" doctrine in seeking dismissal of the case. But it does not work for the defendants in this case.

The district court granted the officers summary judgment on the false warrant claim, but the Court of Appeals (Calabresi, Livingston and Chin) reverses, and the claim is revived. Even if we "correct" the affidavit by taking out the falsehoods, the jury can still find for the plaintiff. The rest of the affidavit cites the tip from a confidential informant that plaintiff was selling drugs, and others confidentially said that he was doing so from his home. Plaintiff's criminal history and past drug arrests and convictions are also in the affidavit. In light of this information, this is all a close call. Sending the case to the jury, the Second Circuit concludes,

it is a very close question whether the corrected affidavit as a whole establishes probable cause, and the result would ultimately depend on how a magistrate weighed the information. We cannot therefore conclude, as a matter of law, that the alleged falsehoods in the affidavit were immaterial to establishing probable cause, and the district court erred in granting summary judgment on the Officers’ qualified immunity defense.

Sunday, September 29, 2013

Inmate can sue for retaliation in Quran case

Yes, inmates have First Amendment rights. They even have the right to give the Quran to a prison guard.

The case is Washington v. Gonyea, a summary order issued on September 10. Washington was locked up in the big house when he gave a Quran to Tammi Chaboty, a guard. He alleged in his lawsuit that the prison punished him for this gesture.While the district court threw out the case under Rule 12 because plaintiff did not allege that he held a sincere religious belief sufficient to trigger the First Amendment's freedom-of-religion protections, the Court of Appeals (Chin, Livingston and Ramos) says the complaint alleges that sincerity sufficient to withstand Rule 12 dismissal. The lawsuit says that Washington gave the Quran to Chaboty "in response to her expressed interest to know about the religion of Islam." He claimed it was his religious duty to spread the word, "especially to those who inquire about it."

To win the case, the State has to show that the punishment was reasonably related to legitimate penological interests. That's an easy standard for the State to satisfy. But that argument is not suitable on a Rule 12 motion, before the parties have taken any discovery, the Second Circuit says, particularly since the complaint alleges that Washington was punished out of personal animus and not for any safety or security related objectives.

On this same set of facts, Washington also sues under the Religious Land Use and Institutitonalized Persons Act of 2000, also known as RLUIPA, which gives inmates a statutory right (apart from the Constitution) to practice their religion in jail. Washington loses this branch of the case (producing a separate opinion from the Court of Appeals), because the Court finds for the first time that RLUIPA "does not authorize monetary damages against state officers in their official capacities, and does not create a private right of action against state officers in their individual capacities." This is a sovereign immunity issue, which prevents certain damages awards against state officials. RLUIPA still allows inmates to win damages against local officials.

Washington also sues under the Due Process Clause because he was put into solitary confinement after he lost a prison disciplinary hearing for "communicating messages of a personal nature to an employee." These cases are a dime a dozen, and they usually end in defeat for the inmate. That's the result here. What makes this one interesting is that, after losing the hearing, Washington brought an Article 78 in State court challenging the adverse decision. The Third Department said the disciplinary decision was not based on substantial evidence and was therefore erroneous. But that does not mean that Washington has a Due Process claim, the Court of Appeals says, because lack of "substantial evidence" does not mean "no reliable evidence." Someone testified at the disciplinary hearing that when Washington gave Chaboty the Quran, he did so with an "eerie smile which was unnerving." That was enough evidence to satisfy the Due Process Clause, even it was not enough to put Washington away in solitary under State inmate disciplinary regulations. 

Friday, September 20, 2013

Shackled and drawn, among other trial court errors

The Court of Appeals has vacated a drug conviction because the trial court committed a series of errors that denied the defendant a fair trial. One of those errors involved shackling the defendant during trial without a good reason. That error raises questions about trial court practices in the Northern District of New York.

The case is United States v. Haynes, decided on September 5. Haynes was arrested after the police found a ton of drugs in the gas tank of her rental car. The police said she was a drug courier. She argued at trial that she was an unwitting drug mule who rented the car without knowledge of the drug stash. The trial court ordered defendant shacked during trial.

The highlight of the decision is that the government told the Court of Appeals during oral argument that Northern District courts routinely shackle defendants at trial. This violates settled Supreme Court and Second Circuit law, so the Court asked the government to explain this practice further. In its post-argument submissions, the government clarified that shackling is not routine, but that the U.S. Marshalls recommend to the judges whether to shackle defendants and that the judge has the final say. But the judge does not make a record on this decision unless the defendant objects. As the Second Circuit (Koeltl [D.J.], Sack and Lohier) says, "no physical restraints may be imposed on a criminal defendant during trial unless the District Court finds on the record that they are a necessary last resort. Where the District Court finds that shackles are necessary for the safety of the defendant or any persons in the courtroom, the Court must ensure that the restraints are no greater than necessary to ensure safety during trial, and the Court must take steps to minimize any prejudice to the defendant from being tried in physical restraints."

The shackling was one of many errors at trial. As this was a close case where the jury had difficulty reaching a verdict, the defendant gets a new trial based on the cumulative nature of these trial court errors. There was an allegation of juror misconduct. The defense lawyer told the judge that an alternate juror told him that some jurors presumed that defendant was guilty. The judge did not conduct an inquiry into this allegation, i.e., speaking to the jurors and gaining an assurance that they could be fair. This was an abuse of discretion. It was also an abuse of discretion for the court to give the jurors a modified Allen charge at the end of the first day of deliberations, after they had already told the court they were deadlocked. This charge may have led the jury to believe that the court was coercing them to reach a verdict. All the court can do is to encourage the jury to continue to deliberate and to hear each other out with an open mind.

The Court of Appeals also focuses on two evidentiary errors. One error has to do with lay witness testimony about how the gas tanks work and why it was unreasonable for defendant to say that she did not notice until the end of her long trip that that the gas gauge was on empty. (The witness suggested that drugs in the gas tank will put the gas gauge on empty the whole time). As it was based on specialized knowledge, this testimony looked like expert testimony, but since the witness was not an expert, the defense did not have the opportunity to put on a rebuttal expert. The jury should not have heard this testimony. It was also error for a law enforcement officer to testify about the defendant's state of mind, that she "realized" there were drugs in the car.

Monday, September 16, 2013

Second Circuit dismisses "distressing" Title IX sexual harassment case

Schoolyard bullying may be on the national agenda these days, but the law does not compel school districts to act with a sense of urgency in dealing with the problem. The districts need only show that they were not deliberately indifferent to the problem. It all shakes out in a case recently decided by the Court of Appeals.

The case is KF v. Monroe Woodbury Central School District, a summary order decided on August 27. The Second Circuit emphasizes that this is a "distressing case." The girl suffered intense and prolonged teasing in eighth and ninth grades and was sexually assaulted on two occasions. This caused her significant anxiety, which prevented her from going to school. She was therefore home-tutored. The district first learned about the sexual harassment eleven months after the second sexual assault. The district then recommended that she attended an out-of-district program. The family objected because other kids in the program had serious disciplinary records. The district then gave her individual tutoring at home.

On the Rule 12 motion, the district court said the school district is not liable under Title IX, and the Court of Appeals (Chin, Cabranes and Hall) affirms. The Second Circuit is not crazy about the school district's response, but it holds that the Complaint does not allege that the district was deliberately indifferent to the harassment. There is no allegation that the district looked the other way when the harassment was unfolding, and it offered the family an alternative educational placement, allowing them to file a grievance if they deemed the placement inappropriate. While the family wanted their daughter sent to a high school in another district, families do not have the right to dictate the district's response, and the district says it lacked the authority to do this. The case does not reach discovery.

This case shows how few racial and sexual bullying cases actually reach the jury. In the late 1990s, a divided Supreme Court said that families can sue to enforce Title IX, but that they have to prove "deliberate indifference" to win the case. That's a much harder burden of proof then the negligence standard in Title VII workplace harassment cases. I think the public wants school districts to do more to stop bullying, but as this case shows, the legal standard has not caught up with public opinion

Friday, September 13, 2013

Cash settlements under the ADEA are taxable

A pro se plaintiff sued his former employer under the Age Discrimination in Employment Act. The case settled. The plaintiff did not want to pay taxes on the settlement. The Second Circuit says that he has to.

The case is Gerstenbluth v. Credit Suisse, decided on August 27. The case settled for $250,000. Plaintiff objected that Credit Suisse sent him a W-2 form to cover his withholding taxes under FICA, which pays in part for Social Security. While plaintiff "freely acknowledges" that settlement for back and front pay normally constitutes taxable wages, he says that this case is different because this settlement was "payment to drop the Appellant's complaint of Age Discrimination against Credit Suisse" and that since he received a severance package from his former employer and the parties did not discuss lost wages in settling the case, that this settlement is not really about lost wages. Nice try.

The Court of Appeals has not taken up an issue like this in a long time. The Court (Livingston, Lohier and Carney) tells us that these settlements are taxable. We look at the cause of action and the statute under which the plaintiff sued to determine what the settlement really covers. Under ADEA, you can get back and front pay but no pain and suffering (which is not subject to withholding taxes). The intent of the party paying out the settlement also bears upon whether it is taxable. The agreement required plaintiff to release all claims which, as noted above, would yield taxable awards for lost wages (as well as liquidated damages and attorneys fees) but not emotional distress. In referencing withholding taxes, the settlement agreement also reflects that management intended that the payout be taxable. This creates a "strong presumption" that the settlement is taxable.So while the plaintiff makes some creative arguments to avoid paying his taxes, he is going to have write a check to the IRS.

A noteworthy footnote in this case says that "[t]he IRS concedes that amounts awarded in lieu of attorney's fees and interest are not subject to FICA."

Tuesday, September 10, 2013

Circuit gives us a wrinkle on Monell liability

There are two kinds of defendants in civil rights cases brought under Section 1983: individual defendants and municipal defendants. You sue the individual who violated your rights. You can sue the municipality if the rights violation grew out of a governmental policy or practice. We call the latter claims Monell cases, based on a Supreme Court case from 1978. The question is whether you can sue the government in a Monell claim without naming individual defendants.

The case is Askins v. City of New York, decided on August 23.Askins is paraplegic and uses a wheelchair. Upon entering an apartment building, he hoisted himself out of his wheelchair and started to pull himself up a flight of stairs. Two police officers approached Askins and began to search his wheelchair and backpack. A Sergeant saw a blue rubber cap attached to Askins' catheter waste bags and thought (incorrectly) that it was a crack pipe. The police also found a kitchen knife on Askins. He was arrested for criminal possession of a controlled substance and criminal trespass in the third degree. The charges were eventually dismissed.

Askins sues for false arrest and malicious prosecution. His complaint named John Doe defendants along with one officer that Askins was able to identify. The district court dismissed the claims against these defendants on qualified immunity and statutes of limitations grounds (he did not name the defendants within the three-year limitations period). But Askins also sued the City of New York. The district court threw out that claim because he could not proceed against the individuals. The Court of Appeals (Leval, Raggi and Livingston) reinstates the case against the City.

Even if the City has a custom and policy of pursuing false arrests, the general rule is that "the City cannot be liable under Monell where Plaintiff cannot establish a violation of his constitutional rights." But while the individual defendants got out of the case, it was not on the merits. It was on procedural or technical grounds. Although one officer got qualified immunity, municipalities are not entitled to qualified immunity. Askins can still go after the City if he can show that his rights were violated and the rights violation grew out of a City policy. As Judge Leval writes,

It does not follow ... that the plaintiff must obtain a judgment against the individual tortfeasors in order to establish the liability of the municipality. It suffices to plead and prove against the municipality that municipal actors committed the tort against the plaintiff and that the tort resulted from a policy or custom of the municipality. In fact, the plaintiff need not sue the individual tortfeasors at all, but may proceed solely against the municipality.

Friday, September 6, 2013

Qualified immunity in body cavity search case

This plaintiff brought suit for false arrest and an illegal cavity search that took place at the police station. This case acquaints us with some disgusting imagery about how drug dealers conceal their merchandise. Bottom line: although the arrest was illegal, the municipal defendants are entitled to qualified immunity on that claim. They also get qualified immunity on the cavity search claim.

The case is Gonzalez v. City of Schenectady, decided on August 28. While situated in a known drug area, plaintiff was arrested after a police wire overheard him offer to find "whatever you needed" for a potential buyer. This was not quite a bona-fide offer to sell drugs, so the drug arrest violates the Fourth Amendment. But plaintiff still loses the case. The Second Circuit (Jacobs, Chin and Pooler) says the officers had arguable probable cause -- a qualified immunity concept -- because reasonably competent police officers might disagree on whether there was probable cause to arrest plaintiff. In other words, this is too close a call to hold officers personally liable. This is an unpleasant fact of life for plaintiffs: that officers get the benefit of the doubt in civil rights cases. The Supreme Court gave its blessing to qualified immunity a long time ago, and the federal courts routinely find that plaintiffs get nothing in close cases even if quiet contemplation in a judge's chambers later on reveals that the arrest was illegal.

Plaintiff also sues for the cavity search. At the police station, the officers made him strip down to facilitate a visual cavity search between his buttocks. The officer saw a "little plastic bag sticking out of his rectum" and removed a bag containing drugs. The law governing the legality of strip searches is complex. While the officers in this case do not dispute that the search violated plaintiff's search and seizure rights, they argue -- and the Court of Appeals agrees -- that the officers get qualified immunity because "at the time of the search, we had never held that the Fourth Amendment is violated by a suspicionless search (strip search or visual body cavity search) of a person arrested for felony drug possession. Although we have repeatedly held that the police may not conduct a suspicionless strip or body cavity search of a person arrested for a misdemeanor, reasonable officers could disagree as to whether that rule applied to those arrested for felony drug crimes, given the propensity of drug dealers to conceal contraband in their body cavities." Judge Pooler dissents from this holding.

The Court of Appeals provides some commentary on the policies behind qualified immunity. When the case law is not clear at the time of the rights violation, the officers cannot be sued personally. They are not expected to be legal scholars. Here is the language that jumps out at me, though. It has been argued that qualified immunity is pointless because municipalities cover the legal expenses and damages awards for police officers, so why does it matter if they are sued personally in close cases? Chief Judge Jacobs says in a footnote:

The premise--that a suit against an individual government employee is in substance a suit against his employer--is wrong. Doubtless in some political subdivisions of this Circuit the government supplies defense counsel and pays the judgment if an officer is personally liable under § 1983. But this Circuit includes scores of counties and hundreds of towns and municipalities; and there are thousands of political subdivisions in the nation. Not all of them will indemnify their employees for § 1983 judgments; many cannot even afford to furnish a defense; some can barely keep the school open.


Tuesday, September 3, 2013

New trial on wrongful death case against the police

Once the jury renders the verdict, the case is over. You can appeal, but most appeals fail. The easiest way to win a post-trial appeal is by challenging the jury instructions. If the trial judge got it wrong, then trial was infected and you get a second chance at retrial. That's what happened in this wrongful death case against the police.

The case is Ranasen v. Doe, decided on July 19. This case was a he-said-she-said. The police officer, Daniel Brown, shot and killed John Rasenen in his home after executing a search warrant. After kicking in the door to a small bedroom, Brown saw Rasenen in bed with his girlfriend. The police thought that Rasenen was armed, but he was not. Brown testified that he thought that Rasenen was trying to grab Brown's gun. He shot Rasenen out of fear for his life. Rasenen's girlfriend testified differently. This is how the Court of Appeals (Calabresi, Pooler and Raggi) summarizes her account:

Angela Chinnici, for her part, testified that she was asleep next to Rasanen in his bed when she was awakened by knocking on the front door upstairs. She then heard a loud bang, followed by footsteps and cries of, “Police, get down!” Chinnici woke Rasnanen and asked what was going on. Rasanen cursed, leapt out of bed, and closed the bedroom door. He then paced from side to side in the space between the door and the foot of the bed. As Chinnici heard the police coming down the stairs yelling “police” and “get down,” she saw Rasanen drop something behind the television stand. Rasanen then resumed pacing, some two to three feet from the bedroom door. The room, Chinnici said, was dark and small.

Chinnici then saw the door open and Trooper Brown enter. Brown commanded Rasanen and Chinnici to get down. Chinnici complied; Rasanen apparently did not. Chinnici heard a loud pop, and saw a cloud of smoke. She did not see Rasanen lunge at Brown or struggle with Brown for the trooper’s gun.

The jury found in Brown's favor. Rasanen's family appeals. Over Judge Raggi's dissent, the Court of Appeals orders a new trial. What's unique about this case is that, although the Second Circuit remands because of faulty jury instructions, Rasenen's lawyer at trial did not object to the bad instructions. But even under a "plain error" standard of review (which is usually impossible to overcome), the jury charge contravened an established rule of law and was therefore fundamentally incorrect.

As Judge Calabresi sees it, Supreme Court and Second Circuit precedent requires a particular jury charge in deadly force cases under Section 1983. The Supreme Court has said that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Absent such a perceived threat, the use of deadly force is constitutionally unreasonable.  The Second Circuit has said that “[i]t is not objectively reasonable for an officer to use deadly force to apprehend a suspect unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” The jury did not hear that legal standard in this case. It will at the retrial.