Monday, April 28, 2014

Police harassment against restaurant does not create a First Amendment claim

This guy sued the Nassau County Police Department for allegedly harassing him and his businesses in retaliation for his family's Internal Affairs Complaint and his grand jury testimony, which helped a police suspect avoid indictment. The case was dismissed on summary judgment, and the Court of Appeals affirms.

The case is Prince v. County of Nassau, a summary order decided on April 16. The family's actions which they claim antagonized the police took place in 2002-03. According to the Court of Appeals (Kearse, Jacobs and Lynch), the police harassment took place years later. The Second Circuit does not see a connection between the grand jury and IAB activity and the harassment, at least not one that gives rise to a First Amendment retaliation claim.

Under Second Circuit precedent, "[s]pecific proof of improper motivation is required in order for plaintiff to survive summary judgment on a First Amendment retaliation claim.” In this case, while the police issued citations to plaintiff's restaurants, that does not mean it was in retaliation for First Amendment activity. The Court says,

There is insufficient connection between Prince’s testimony in the grand jury proceeding and the alleged harassment against him years later. In the three years following his grand jury testimony, Prince was issued fewer appearance tickets than in the ten months preceding. Prince has not raised a genuine issue of material fact as to whether acts of County police officers and fire marshals during the limitations period were motivated by retaliatory animus, rather than by a good-faith desire to enforce the licensed premises codes and to end the repeated instances of fighting, overcrowding, and underage drinking.
Part of this case went to trial on the Intentional Infliction of Emotional Distress claim. The jury wanted clarification of what the IIED claim means. Judges don't like to play games with jury instructions. They know that bad instructions are the stuff that appeals are made of. When the jury wanted examples of outrageous and shocking conduct, the jury simply reiterated the legal standard, without providing concrete examples or language suggested by plaintiff's lawyer. The Second CIrcuit says that, since IIED claims are fact-specific, the trial court properly refrained from proving more detail about the meaning of IIED. The conscience of the community decides what is outrageous enough to sustain a lawsuit.

Another unusual issue here is the 13 day gap between the close of evidence and the start of jury deliberations. Bad weather -- maybe one of the hurricanes -- caused the delays. Plaintiff said this gap unfairly prejudiced him. I get the argument. You don't want the jury to forget about the case by the time it starts to deliberate. We don't even like weekend breaks during trial. But 13 days? In this case, that gap does not require a new trial. When the trial resumed, the jury asked for testimony read-backs and "for clarification when necessary." That convinces the Court of Appeals that the delay did not prejudice plaintiff's rights.

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