Second Circuit throws out drug conviction for lack of reasonable doubt

How often does the Court of Appeals throw out a criminal conviction because there was no evidence beyond a reasonable doubt that the defendant committed the crime? Or because it is highly unlikely that the defendant committed the crime? It's rare, but it happened in this case.

The case is U.S. v. Clark, decided on January 17. Clark was arrested following some kind of tavern disturbance. After patting him down for weapons and other contraband, the police handcuffed Clark behind his back put him in the police cruiser, where the ride to the police station lasted about one minute. Here's where it gets interesting:

Once Clark was out of the police car, [officer] Giamberdino lifted the cushion of the back seat out and up, making visible the space between the back of the back-seat cushion and the bottom of the back-seat back rest. In that space he saw a quantity of a white powdery substance that later analysis determined was crack cocaine. Giamberdino also testified that he had checked this space before starting his evening shift, nothing was there at that time, and Clark was the first person to occupy the back seat of the car that evening.

Now, the cocaine that was found hidden in the police vehicle was not in a plastic baggie. It was simply loose cocaine. But no one say any white powdery substance on Clark's hands or on his clothing after he got out of the police car and was escorted to the police station. The jury convicted Clark of cocaine possession anyway. The Court of Appeals is uncomfortable with this conviction, and it is vacated.

Again, the Court of Appeals rarely does this. So Judge Newman opens the decision with the following language: "This appeal of a criminal conviction presents extraordinary facts that challenge a reviewing court to take seriously its constitutional obligation to assure that evidence resulting in a conviction was sufficient to permit a jury reasonably to find guilt beyond a reasonable doubt." He then gets philosophical later in the decision, noting the oft-stated quote that "It has been said that it is better to let ten guilty persons
go free than to convict one innocent person. In the past, some have favored higher ratios." Then, the kicker:

However one prefers to quantify an unacceptable risk of convicting the innocent, it is difficult to imagine a case where the possibility that an innocent person has been convicted of an offense is greater than the one now before us.

In all likelihood, the Second Circuit (Newman, Winter and Droney [dissenting]) says, Clark did not place the cocaine in the police cruiser as a means to get rid of it before he got to the police station. In throwing out the conviction, Judge Newman reasons,

We cannot say it is an absolute impossibility for a person with his hands securely handcuffed behind his back to extract a substantial quantity of crack cocaine from his person or clothing and wedge it into the space where the quantity was found without leaving a trace of cocaine on his fingers or clothing, but we can say that the possibility of such an occurrence is so exceedingly remote that no jury could reasonably find beyond a reasonable doubt that it happened. The remote possibility is diminished virtually to zero by the fact that no glassine envelope or other packaging material was found in the police vehicle or on Clark’s person. It taxes credulity to think that Clark carried such a quantity of crack cocaine loose in his pocket and, while handcuffed, extracted it from his pocket and secreted it where it was found, all without leaving a trace on his person or clothing.

 Judge Droney dissents, setting forth a few scenarios where Clark could have stashed away the cocaine when no one was looking as he sat in the police car with handcuffs on. During the pat-down before Clark was placed in the vehicle, the officer was not actually looking for drugs but weapons, given the nature of the 911 call that drew the police to the scene. Clark also had a few minutes to himself in the car while the police were doing other things. It would have been hard for Clark to pull this off while in handcuffs, but "the stakes for Clark were high" and the seat design would have allowed for this maneuver. Clark also could have discarded the baggie when no one was looking as the police took him from the car and walked him to the station. In addition, one of the officers testified that he had thoroughly checked behind and underneath the seat for contraband at the start of the shift, and had found nothing. "It was certainly reasonable for the jury to conclude from this testimony that Clark was the only possible source of the cocaine," Judge Droney writes.

Sex video in the workplace kills off discrimination claim

The Court of Appeals does not like this employment discrimination case at all, stating that the plaintiff's argument is "absurd."

The case is Humphreys v. Cablevision Systems Corp., a summary order decided on January 17. In order to bring a discrimination case, you have to first make out a prima facie case, a low-threshold requirement that allows the plaintiff to make an initial showing of discrimination. If the plaintiff does so, then the employer has to advance a neutral reason for the plaintiff's termination. Plaintiff does not meet this low threshold. This is how the Court of Appeals (Jacobs, Lohier and Droney) summarizes the case:

Humphreys, a senior manager at a Cablevision facility, does not deny that he flagrantly violated Cablevision’s Harassment Prevention Policy by showing two of his colleagues a vulgar and offensive internet video. Humphreys’ only response is that one of the two viewers, Dianne Yepes, a human resources employee who later reported his conduct, was equally or more culpable because she did not immediately prevent Humphreys from showing the video, yet was spared termination.

You can win a gender discrimination case is someone else was not disciplined for the same misconduct. But Yepes is not comparable to Humphrey. The Court of Appeals therefore says that plaintiff's argument "borders on the absurd." It adds, "To use Yepes as a comparator for a showing of disparate treatment, Humphreys must show that Yepes was 'similarly situated,' i.e., 'engaged in comparable conduct.'” Yates is not a good comparator. The Court says:

Humphreys introduced the video into the workplace and exhibited it to his co-workers. The Policy specifically prohibits “the distribution of sexually explicit or otherwise abusive or offensive . . . communications.” It was Humphreys who distributed the video; at most, Yepes failed to interrupt the video and protect Humphreys from his own poor judgment. The audience members are not similarly situated comparators.

Sex in the workplace is frowned upon, to say the least. George Costanza learned that the hard way. Humphreys brought the explicit video to work and showed it to others. Pointing the finger at those in the room who did not stop him from showing the video will not create an issue of fact for trial.

Court of Appeals strikes down speech requirements for abortion-alternative facilities

The abortion wars rarely reach the Second Circuit, but this one does. The Court of Appeals rules on the constitutionality of a New York City law that regulates pregnancy crisis centers, known for trying to counsel woman not to have an abortion. A portion of that law that regulates the centers' speech violates the First Amendment

The case is The Evergreen Association v. City of New York, decided on January 17. The lawsuit challenges three requirements for pregnancy services centers: they must disclose:

(1) whether or not they have a licensed medical provider on staff (the “Status Disclosure”); (2) that “the New York City Department of Health and Mental Hygiene encourages women who are or who may be pregnant to consult with a licensed provider” (the “Government Message”); and (3) whether or not they provide or provide referrals for abortion, emergency contraception, or prenatal care (the “Services Disclosure”).

The district court struck down these three disclosure requirements. After deliberating on this case for more than a year, the Court of Appeals (Pooler, Lohier and Wesley [dissenting in part]) says the Government Message and Services Disclosure violate the First Amendment's prohibition against compelled speech. The Status Disclosure requirement is legal.

1. On the Status Disclosure requiring these facilities to disclose whether they have a licensed medical provider on staff, this survives strict, or close, scrutiny under the First Amendment. This kind of neutral "speech" is a narrowly-tailored effort to ensures that women know that a particular facility has a licensed professional on board. This ensures that women have prompt access to the services they seek.

2.  On the Services Disclosure requiring these facilities to affirmatively state whether they provide referrals for abortion and other services, this violates the First Amendment. This speech requirement is made in the context of a public debate on the morality of efficacy of contraception and abortion, for which many of these facilities provide alternatives. As Judge Pooler sees it, "The Services Disclosure will change the way in which a pregnancy services center, if it so chooses, discusses the issues of prenatal care, emergency contraception, and abortion. The centers must be free to formulate their own address. Because it mandates discussion of controversial political topics, the Services Disclosure differs from the 'brief, bland, and non‐pejorative disclosure' required by the Status Disclosure." The government is essentially telling these facilities what to say, and that message may conflict with the facilities' own mission.

3. On the Government Message that requires these facilities to disclose that the City encourages women to consult with a licensed provider, this also constitutes compelled speech in violation of the First Amendment. The City can accomplish its objective in other ways: it can do so through an advertising campaign rather than require these providers to convey that message. As it is also a matter of public debate, the Court says, whether women should see a doctor in this context, the government is forcing these facilities to take sides on this issue, contrary to the First Amendment.

Judge Wesley dissents in part, concluding that the entire statute is too vague in defining "pregnancy services center." He writes that the law gives the City too much discretion in determining that a facility has the "appearance of a licensed medical facility" that would be covered under the law. Since the framework encourages arbitrary enforcement, it violates the First Amendment. For this reason, he writes, "Local Law 17 is a bureaucrat’s dream. It contains a deliberately ambiguous set of standards guiding its application, thereby providing a blank check to New York City officials to harass or threaten legitimate activity."

En banc majority allows civil rights case to proceed against police despite guilty plea

In 1994, the Supreme Court said that you cannot bring a civil rights lawsuit against the police if the lawsuit, for all intents and purposes, would undermine the legitimacy of the criminal conviction that gave rise to the lawsuit. At its most basic level, this means that if you were fairly convicted for shoplifting, you cannot turn around and sue the police officers for false arrest arising from that incident. Of course, things get more complicated than that. The Second Circuit issued a rare en banc decision interpreting the Supreme Court's ruling in Heck v. Humphrey.

The case is Poventud v. City of New York, decided on January 14. It all started when someone attacked a cab driver in 1997. When the police presented him with a photo array, the driver implicated Marcos Poventud's brother Francisco as the bad guy. Problem was, the brother was in jail at the time and could not have committed the crime. The police then repeatedly showed the driver photos of Poventud until the driver finally implicated him in the crime. As the en banc majority says, "despite NYPD policies forbidding such behavior, the officers neither preserved nor disclosed to the Bronx District Attorney's Office the photo array in which [the driver] mistakenly identified Francisco." This evidence obviously would have helped Poventud's defense at trial and allowed him to argue that someone who did not look like Poventud committed the crime. Unaware that the cab driver had identified someone else as the attacker, the jury convicted Poventud of attempted murder and attempted robbery. But the state courts vacated the conviction because the failure to disclose violated the requirement under Brady and Rosario that the prosecution turn over evidence that might exculpate the defendant. When the case returned to criminal court, Poventud plead guilty to attempted robbery and was immediately released.

In bringing this Section 1983 claim arising from the crooked process that led to his conviction, Poventud argues that his guilty plea is not foreclosed by Heck v. Humphrey because his claim does not necessarily imply the invalidity of his outstanding conviction. In other words, the civil rights case is not inconsistent with his conviction. The en banc majority notes that civil rights cases can proceed against law enforcement even if the plaintiff was found guilty of the underlying crime. For instance, you can sue the police for excessive force even if the arrest was valid and led to a conviction. But some claims are foreclosed, such as malicious prosecution claims that require a showing that the criminal case terminated in the plaintiff's favor. If the plaintiff was found guilty or plead to something, by law there could not have been malice underlying the prosecution.

Judge Lynch, in a separate opinion, frames the issue (and provides the answer) like this:

The question before the Court is whether the rule of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), which prohibits a criminal defendant from obtaining damages for wrongful prosecution, conviction or imprisonment until and unless the conviction he complains of has been overturned, prevents the plaintiff Marcos Poventud from suing the defendants for, as he alleges, obtaining a conviction against him that led to his incarceration for almost nine years by deliberately suppressing evidence that cast doubt on the critical identification testimony of the victim. The short answer is that it does not, because the criminal judgment against him was later vacated by the state court that entered it, because the court found that the police had indeed rendered his trial unfair by suppressing exculpatory evidence.

Since Poventud is suing under Section 1983 for damages arising from the Brady violations, victory in that case would not undercut his guilty plea for attempted robbery. His lawsuit "alleges deficiencies in his 1998 trial that are entirely independent of the proceedings related to his 2006 plea," writes Judge Wesley for the en banc majority. While the 2006 conviction is a clean one, since plaintiff plead guilty after the prosecutorial misconduct was revealed, the 1998 conviction was tainted because of that misconduct, and it was that misconduct that caused plaintiff's bogus conviction and imprisonment. While plaintiff's guilty plea acknowledged his presence at the scene of the crime (which contradicted his alibi at trial), the Section 1983 claim remains viable because Brady-violation claims do not require actual innocence, and "even a guilty man is entitled to a fair trial." The panel concludes, "no element of his Section 1983 Brady claim requires Poventud to prove his absence from the scene of the crime; if it did, his claim would be Heck-barred.  Poventud's success at trial would mean only that his 1998 conviction was the product of a constitutional violation."

The Second Circuit rarely hears cases en banc. It usually does so on issues of paramount importance, over which the judges disagree. Of course, this case does not involve national security, but it implicates crime and punishment. Judge Wesley wrote the en banc decision on behalf of eight colleagues, Katzmann, Calabresi, Pooler, Sack, Hall, Lynch, Lohier and Carney. Judge Chin concurs in part. The remaining judges -- Jacobs, Cabranes, Raggi, Livingston and Droney, dissents.

Supreme Court grants certiorari in Garcetti-style employee speech case

Eight years after the Supreme Court limited the rights of public employees to speak out in the workplace, the Court is returning to that issue, granting certiorari on the issue of when management may discipline workers for testifying truthfully in court.

The case is Lane v. Franks, hailing from the Eleventh Circuit Court of Appeals. First, some background, in 1968, the Supreme Court held in Pickering v. Board of Education that public employees have the right to speak out on matters of public concern without retaliation (unless their speech disrupts the workplace). Fifteen years later, in Connick v. Myers, the Court reaffirmed this right, clarifying that "public concern" speech is determined by examining the context, content and form of the speech. But in 2006, the Court held in Garcetti v. Ceballos that even if the speech addresses a matter of public concern, the First Amendment only protects that speech if the employee speaks as a citizen. If the employee speaks pursuant to his official job duties, it's not free speech. It's work speech. So if a government accountant blows the whistle that someone embezzled money, that's work speech, not citizen speech, because it was his job to speak out on this. If the janitor in a government building somehow finds out about corruption in one of the offices that he cleans, his speech on that corruption is protected.

The problem for government workers is that most of the whistleblowing that anyone cares about -- or which comes from a reliable source -- will not be citizen speech. If the employee knows enough to speak out, he probably learned about the malfeasance in the course of his job duties. Which makes it work speech, not citizen speech. Would the janitor really be fired for speaking out on the corruption? Would anyone care what the janitor thinks? Maybe not, but the government accountant has to think twice before speaking out. If he works for thin-skinned people who might retaliate against him, he may not have a constitutional remedy for the retaliation.

An early school of thought held that Garcetti only knocked out speech that the plaintiff was mandated to utter, i.e., if your job is to advise other government professionals, that advice is not free speech. But things did not work out that way. The Circuit Courts have broadly interpreted Garcetti to render unprotected a great deal of work-related speech. Since 2006, less than a handful of plaintiffs have survived summary judgment on Garcetti claims in the Second Circuit Court of Appeals, which held in Weintraub v. Board of Education (2010) that the First Amendment does not protect the speech if it is "part and parcel" of the plaintiff's concerns about his ability to perform his job. The "part and parcel" legal standard swallows most of these claims. A quick and easy rule in Garcetti cases is that if the speech grows out of the plaintiff's everyday job duties, it's probably not protected. That covers a lot of speech.

Plaintiffs' lawyers have waited years for the Supreme Court to take on another public employee free speech case so it could clarify the standard and perhaps open the spigot for successful claims. That day has arrived, but it is unclear whether the Court will clarify when an employee speaks pursuant to his official job duties. For now, the Court will decide whether you can be fired for courtroom speech. The decision may include dicta or further explanatory language that gives everyone additional guidance about how these cases work.

In Lane v. Franks, the case up for review in the Supreme Court, the plaintiff was the director of a training program for at-risk youth. He testified in the grand jury and at two federal trials that a politician (Schmitz) was on the payroll but wasn't doing any work. The politician was found guilty, and plaintiff was fired, he claims, in retaliation for his testimony. The Eleventh Circuit held that plaintiff did not engage in free speech, reasoning:

No one disputes that Lane was acting pursuant to his official duties as CITY’s Director when he investigated Schmitz’s work activities, spoke with Schmitz and other CACC officials about Schmitz’s employment, and ultimately terminated Schmitz’s employment. That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment. Furthermore, because formal job descriptions do not control, that Lane’s official duties did not distinctly require him to testify at criminal trials falls short of triggering First Amendment protection.

Although not dispositive, we consider it pertinent that the subject matter of Lane’s testimony touched only on acts he performed as part of his official duties. Nothing evidences that Lane testified at Schmitz’s trial “primarily in [his] role as a citizen” or that his testimony was an attempt to comment publicly on CITY’s internal operations. In the light of our precedents, the record fails to establish that Lane testified as a citizen on a matter of public concern: as a matter of law, he cannot state a claim for retaliation under the First Amendment.

Other Circuits have held that trial testimony is protected under the First Amendment, notably the Third Circuit, which held in Reilly v. City of Atlantic City (2008) that all citizens have a duty to tell the truth at trial and that the First Amendment protects such testimony. There is much flowery language in Reilly about the importance of courtroom truth-telling. Post-Garcetti, the Second Circuit has addressed this issue in a non-precedential summary order, Kiehle v. County of Cortland (2012), which held that a DSS social worker's testimony in Family Court in a disputed child neglect proceeding was not free speech. (I represented the plaintiff in Kiehle. A certiorari petition was filed in that case, but the Supreme Court did not bite). As this issue has been brewing in the federal courts for years, having granted certiorari on January 17, the Supreme Court will now rule on this question.

pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties,” - See more at: http://caselaw.findlaw.com/us-2nd-circuit/1500093.html#sthash.iDw0V1N5.dpuf

“pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties,” - See more at: http://caselaw.findlaw.com/us-2nd-circuit/1500093.html#sthash.iDw0V1N5.dpuf

“pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties,” - See more at: http://caselaw.findlaw.com/us-2nd-circuit/1500093.html#sthash.iDw0V1N5.dpuf

How do we deal with adverse Section 75 findings at a discrimination trial?

When public employees are disciplined in New York, they face charges under Section 75 of the Civil Service Law, which entitles them to notice of the charges and a fair hearing. Employees often lose at the hearings, as any honest labor lawyer will tell you. What happens, then, when the employee sues management for discrimination? What effect does the Section 75 findings have on the case?

The case is Matusick v. Erie County Water Authority, decided on January 6. This case drew attention because the Second Circuit held for the first time that an employer cannot fire a white man because he was engaged to marry a black woman. But the case has another important point, relating to the quandary that I raised about Section 75 findings.

At trial, defendants "introduced evidence regarding Matusick's long and serious history of disciplinary problems." Basically, management introduced evidence that plaintiff was a slacker, among other things, watching football on TV during work hours, with the security camera blocked so no one could catch him in the act. The following is a candidate for footnote of the year:

In the memorandum, he reported that when he arrived, he found ʺMatusick slouched in the dispatcher's chair loudly engaged in a football game he was watching on the overheard TV. . . . [Matusick] jumped‐up and looked out the window as he screamed out 'what kind of an asshole would call during the fourth quarter of the game.'ʺ Matusick had apparently been watching a now notorious Buffalo Bills game. See Mark Gaughan, Bills Battle Broncos to the Bitter End, BUFFALO NEWS, Oct. 27, 1997, at S3 (reporting that the Bills came back from a 20‐0 deficit in the fourth quarter, but ultimately lost on a field goal with 1:56 remaining in overtime).

The hearing officer found plaintiff guilty of workplace misconduct, and management adopted the hearing officer's recommendation to fire plaintiff. Now, when plaintiffs sue for discrimination, management will defend against the charges by arguing that it fired them for legitimate reasons. Section 75 dismissals certainly corroborate that defense. After all, hearing officer heard the evidence and made a factual finding on this. At trial, the judge decided that the adverse Section 75 findings did not prevent plaintiff from suing for discrimination, and he also told the jury that the Section 75 hearing "did not 'force' the jury to resolve any of the questions before it in any particular way." In other words, the jury did not have find as a matter of law that plaintiff had engaged in the misconduct.

Collateral estoppel principles prevent you from re-litigating the same issue in different forums. But since plaintiff did not litigate his discrimination allegations at the disciplinary hearings, that precise issue was not resolved at the hearing, and he could then challenge his termination as discriminatory at the federal trial. The district court therefore got it right in allowing the discrimination case to proceed. Even if management had legitimate reasons for firing plaintiff, he could still win the case if an illegitimate reason (such as racial discrimination) also motivated his termination. However, the district court should have told the jury that it had to find that plaintiff had in fact engaged in the misconduct that predicated the Section 75 charges. It failed to do so, and that was wrong, the Second Circuit says.

So what happens when the Court of Appeals finds that the district court committed an evidentiary error? It does not always mean the defendant gets a new trial. We proceed to "harmless error" analysis. Harmless error is cold water in the face of an appellate lawyer who survives the first hurdle of appellate review in proving that the trial court made a mistake. Sometimes the error does not matter. Over Judge Raggi's dissent, the Court of Appeals (Sack and Lohier) says the trial court's error did not affect the outcome of the trial. Yes, plaintiff was adjudicated under Section 75 to have engaged in workplace misconduct, and management was entitled to a jury instruction that plaintiff had done bad things at work. But at trial, the employer was able to put on evidence that plaintiff was a bad worker. The Court of Appeals says, "we think it highly unlikely that the jury would have found the defendants' evidence regarding Matusick's alleged misconduct unconvincing." The jury heard tons of evidence about the misconduct, and plaintiff's lawyer effectively conceded his client had engaged in misconduct by telling the jury in summation that other employees were not fired for similar misconduct. Despite the trial court's error, the jury most likely concluded that plaintiff had done bad things at work. But since the jury can reach that conclusion and still find that the plaintiff was discriminated against, the verdict is upheld.

Second Circuit rejects age discrimination claim against Time-Warner

A lawyer who worked for Time-Warner sued this mega-corporation for age discrimination. The Court of Appeals finds that the district court properly dismissed the case on summary judgment because there is no evidence of pretext.

The case is Wolf v. Time-Warner, a summary order decided on December 19. It occurred to me recently that it's been a few years since the Court of Appeals in a published opinion reversed summary judgment in a straight McDonnell-Douglas case, which allows the plaintiff to win on the strength of circumstantial evidence. In this case, the plaintiff alleged that the various complaints about her job performance were not true and that the real reason for her termination was her age. You can challenge the veracity of the criticisms, but the Court of Appeals still wants to know if the false critiques permit an inference of age discrimination. The Court (Livingston, Cabranes and Wesley) says,

Wolf contests the veracity of the multiple complaints lodged by various Time Warner employees against her during the relevant time period, as well as the negative “feedback” she received in her performance evaluations. However, “in a discrimination case, . . . we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in what motivated the employer; the factual validity of the underlying imputation against the employee is not at issue.” Regardless of whether this criticism of Wolf from multiple colleagues was warranted, she does not dispute the fact that her supervisors received it, and as a result, put her on probation in April of 2007.

Remember what I said about the Court of Appeals not ruling in a plaintiff's favor in a pretext-only discrimination case in a few years? One of those cases is Gorzynski v. Jet Blue Airlines, 596 F.3d 93 (2d Cir. 2010). Wolf relies on that case, but the Second Circuit says this case is not Gorzynski, stating,

[In Gorzynski], we found that the District Court had erroneously granted summary judgment on plaintiff’s age discrimination claim because we concluded that she had presented sufficient evidence of pretext. 593 F.3d at 107-10 (finding that: complaints about the plaintiff’s performance were minimal and only surfaced after her complaint of discrimination; her negative performance evaluation was conducted by an individual accused of discrimination, and conducted after he had supervised her for only one week; plaintiff’s probationary status stemmed directly from this faulty performance evaluation; there were several questions related to the event precipitating plaintiff’s firing and the subsequent investigation; and there was considerable evidence that younger employees were treated differently). None of the indicators of pretext from Gorzynski are present here.

Finally, Wolf cites an ageist comment from a colleague in support of her claim. That colleague, Spencer, expressed astonishment that plaintiff was 55 years-old. Plaintiff argues that her work environment went downhill from there. While this comment might be relevant to prove age discrimination, the Second Circuit does not think it applies here. Spencer is not the one who made the decision to fire plaintiff. Other supervisors did that. According to the Court of Appeals, those supervisors heard much criticism about plaintiff's job performance, and the colleagues who complained about her did not appear to do so based on her age.

Second Circuit sustains unique claim for interracial engagement discrimination

This case raises a series of complex issues, but the central holding is that the white plaintiff has a constitutional claim for wrongful discharge because of his engagement to a black woman. This is the first time the Second Circuit has held that the right to intimate association under the Fourteenth Amendment covers the engagement relationship, not just marriage.

The case is Matusick v. Erie County Water Authority, decided on January 6. Plaintiff worked for a public entity. When his co-workers learned that plaintiff was engaged to a black women, they subjected him to vile names, and his working relationship with a racist supervisor, Bluman, collapsed. Management knew about this hostile work environment, but Bluman wouldn't stop. Other co-workers threw around the N-word as well. Management knew about it but did nothing.

The case was not a slam-dunk for Matusick, though. Plaintiff was accused of sleeping on the job, watching TV in the office and blocking the surveillance cameras to avoid getting caught. He lost a Section 75 hearing that found him guilty of work-related misconduct, and he was terminated from his position. Still, the jury found the Water Authority and two individual supervisors liable for wrongful termination under state law, awarding him more than $300,000 in lost wages. The jury also found the Water Authority and three individuals liable for the racial harassment, though it awarded plaintiff no damages for this. On the federal claim (brought under Section 1983), the Water Authority and three individuals were found liable for violating plaintiff's right of intimate association. Here is what the Court of Appeals (Sack, Lohier and Raggi) did:

1. The unlawful termination claim against the Water Authority is sustained. While there is no evidence that higher-ups participated in the harassment over plaintiff's inter-racial relationship, the harassment was pervasive, and the jury could find that the harassment "tainted the investigation into Matusick's misconduct and that the [Water Authority] was aware of that fact, or at least that such animus was a substantial factor in the [Authority's] decision to follow the Section 75 hearing officer's recommendation of termination." The same people who tolerated the harassment conducted the investigation into plaintiff's misconduct and terminated his employment. In addition, other employees engaged in similar misconduct but were not disciplined. While no co-workers engaged in precisely the misconduct that plaintiff did, their misdeeds were close enough. In finding that plaintiff was singled out, the Court of Appeals also factors in the general racist environment in the workplace.

2. On the intimate association claim under Section 1983 and Fourteenth Amendment, the Court of Appeals reviews the flowery but hard-to-define guidelines governing these cases. In Roberts v. United States Jaycees (1984), the Supreme Court said that the Constitution protects certain intimate relationships, like marriage. The Second Circuit finds that this must include "romantic relationships beyond marriage." It adds, "The Courtʹs specific reference to marital relationships therefore should not, we think, be viewed as a formalistic recognition of a particular, narrow legal status entitled to protection. Rather, at least to the extent that a relationship of betrothal constitutes an expression of oneʹs choice of marital partner, it shares the qualities ascribed by the Roberts court to marriage and other protected forms of intimate association. We therefore conclude that Matusickʹs betrothal to Starks fulfilled the standards set out in Roberts and is entitled to protections similar to those that marital relationships enjoy under the right to intimate association." Plaintiff's right to intimate association was violated because the government cannot articulate any interest in furthering this kind of harassment.

3. The Water Authority is liable for this rights violation under Monell, which allows plaintiffs to hold municipalities liable under Section 1983 if a policy or practice caused the plaintiff's injury. The widespread nature of the harassment made that harassment a municipal policy. "A custom or policy of harassment and other discriminatory acts giving rise to hostile work environment claims can form the basis of section 1983
claims." That principle applies here. However, the right to intimate association because of an engagement relationship was not clearly-established under the Constitution at the time plaintiff suffered the wrongful discharge. Under qualified immunity principles, individuals cannot be liable for constitutional violations if the state of the law was unclear. The individual defendants were not on notice that this abhorrent behavior violated the Constitution. While this behavior might have violated Title VII, that does not mean the defendants had reason to know it violated the Fourteenth Amendment. The Section 1983 verdict against the individuals is tossed. Fortunately for plaintiff, since the Section 1983 and state law verdicts against the Water Authority stand, the damages award stands, as municipalities are not entitled to qualified immunity. But the punitive damages against the individuals ($5,000) is gone.

This ruling is interesting for a number of reasons. First, its length: 101 pages, the longest decision I've seen from the Second Circuit for a single-plaintiff claim. That's because of two concurrences and Judge Raggi's dissent which, among other things, disagrees with the holdings that the Constitution protects the engagement relationship or that the municipality is liable for plaintiff's termination. Concluding that plaintiff should have instead sued under the Equal Protection Clause, Judge Raggi says the real beneficiary of the majority's constitutional ruling is plaintiff's attorney, who recovers attorneys' fees for a "dubious" claim under the Fourteenth Amendment that triggers the fee-shifting statute. Other matters of interest include Judge Sack's footnotes. Footnote 1 shows that romantic love still exists in our cynical and twisted world. Footnote 3 highlights the Court's discomfort with using the racially-charged N-word in judicial opinions. Footnote 5 tells us about an historic Buffalo Bills football game that plaintiff was watching on the job as he slacked off in his office. Judge Lohier's concurrence tells us more than you ever wanted to know about the tradition of marital engagements in American history. A separate holding offers an interesting take on the relevance of an adverse Section 75 personnel decision at trial. And the decision as a whole acquaints us with a word that you had probably never heard before: Betrothal.

If it's disgusting, it violates the Eighth Amendment

This one is pretty nasty. The plaintiff is an inmate. He claims that three corrections officers put bags over their head and sprayed him with a mixture of feces, vinegar and machine oil. This substance reached plaintiff's mouth, nose and eyes. The Court of Appeals says he has a case under the Eighth Amendment's prohibition against cruel and unusual punishment.

The case is Hogan v. Fischer, decided on December 20. Inmates do have rights. Under Supreme Court case law, to win an Eighth Amendment claim, the plaintiff has to show he was subjected to "the unnecessary and wanton infliction of pain at the hands of prison officials." Minimal uses of force don't count. But malicious and sadistic attacks that violate contemporary standards of decency do violate the Constitution. The district court threw out Hogan's case, holding that the noxious spray was "not sufficiently severe to be considered repugnant to the conscience of mankind." The Court of Appeals (Chin, Lynch and Carney) sees it differently, and Hogan (handling the case pro se) wins his appeal.

The Court cannot accept that this was a de minimus use of force. It's simply too disgusting. Of course, the cases don't actually say that, but that's what they ultimately stand for. So while one Circuit court decision says that throwing a cup of water at an inmate is not enough for a lawsuit, another case says that using pepper spray on an inmate for no reason was not de minimus. There are also cases that say that forcing inmates to sleep too close to their own human waste can violate the Constitution.

The Court factors in whether there was any reason for the officers to spray the inmate. If there was none, then it supports his claim. This attack looked premeditated. The officers concealed their faces with paper bags and did this at night. The Court of Appeals probably understates the case by stating that "the assault obviously was not 'a good faith effort to maintain or restore discipline' but an attempt to 'maliciously and sadistically ... cause harm.'" A shorthand summary of the holding is, the more disgusting the attack, the more likely it violates the Eighth Amendment.

Whether or not the feces attack really happened remains to be proven. This case was dismissed under Rule 12, so these are just allegations, and the parties now head to discovery. But one tipoff that the allegations might be true is evidence that the State has resisted identifying the "John Doe" defendants that Hogan named in the complaint. That resistance allows Hogan to try to name them even though the three-year statute of limitations has now expired. Normally, you have three years to name the John Does. But the Federal Rules of Civil Procedure allow the federal courts to take into account state law principles in determining whether the identifications "relate back" to the timely filing of the original complaint. Since state law allows plaintiffs to do so if they diligently tried to name the John Does and they identify the John Does with enough particularity that the real defendant has reason to know that he's a John Doe, that loophole helps Hogan, who tried like hell to identify these guys but was unable to do so because the named defendants did not fully respond to his discovery demands that would have formally identified them.

Achtung! The inmate is filing a lawsuit.

If you are sitting in jail and feel aggrieved, why not file a lawsuit? You can, but the courts know what you're up to. This is why they pay close attention to prisoner civil rights claims in assuring they do not clog up the federal courts.

The case is Faulk v. Fisher, a summary order decided on November 21. Faulk is locked up in the big house. One day after he filed an internal grievance, some corrections officers filed misbehavior reports against him. These reports, if true, can result in discipline against the inmate. The state concedes that filing the grievance is protected conduct under the First Amendment. "[S]o the only issue is whether Faulk has produced sufficient evidence to raise a question of material fact about whether his successful grievance was a 'substantial or motivating factor' in the disciplinary charges."

Now, if plaintiff was not an inmate, he might have a good case, at least on paper. Immediate retaliation looks like First Amendment retaliation. But not here. The Court of Appeals (Hall, Livingston and Sack) says, "“[P]risoner retaliation claims are easily fabricated, and ... pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration.' Accordingly, while we have held that temporal proximity between protected conduct and an adverse action constitutes circumstantial evidence of retaliation, we have consistently required some further evidence of retaliatory animus before permitting a prisoner to proceed to trial on a retaliation claim."

It is true that "Faulk has introduced circumstantial evidence of retaliation: his 'excellent' disciplinary history prior to his successful grievance, and the two misbehavior reports issued by corrections officers Michael Gian and Jacob Lukaszek the day after Faulk succeeded on his grievance." But, the Court of Appeals says, "he can point to no more." While one corrections counselor did make reference to plaintiff's grievance and warned him against filing more, that counselor had nothing to do with the disciplinary measures against plaintiff. The officers who filed the misbehavior reports against plaintiff were not the target of plaintiff's prior grievance. Plaintiff alleges that one corrections officer "used" another to file the report against plaintiff, but that kind of conclusory allegation cannot save a prisoners' rights claim. More broadly, officers who made hostile comments to plaintiff did not appear to do so because of his grievance. And, the misbehavior reports against plaintiff were evidently substantiated.

The claim thus fails. The Court of Appeals does not often affirmatively tell us that it wants inmates to corroborate their retaliation claims, but it does so here. Since plaintiff cannot satisfy the corroboration test, he case dies on the vine.