Not every wrong gets you a remedy

This guy spent three years in custody following his arrest on drug charges. Morales was eventually set free after the charges were dropped. Plaintiff, a former confidential source for drug investigations, sues a DEA special agent, claiming that the agent's false testimony in the grand jury deprived him of a right to a fair trial. There is no such claim.

The case is Morales v. City of New York, decided on May 16. Many injustices do not yield any relief for the victim. This case is decided at the motion to dismiss stage under Rule 12, so we only know what happened from the Complaint, which alleges that Morales got the royal shaft. I am sure that once the charges against Morales were dropped that he went to a lawyer's office hoping to file a lawsuit. What we learn from decisions like this is that things are not so simple.

In 2012, the Supreme Court held in Rehberg v. Paulk that a grand jury witness is entitled to absolute immunity in a Section 1983 action based on the grand jury testimony. The Rehberg court said that "without absolute immunity for witnesses, ... the truth-seeking process at trial would be impaired. Witnesses 'might be reluctant to come forward to testify,' and even if a witness took the stand, the witness 'might be inclined to shade his testimony in favor of the potential plaintiff' for 'fear of subsequent liability.'”

In Section 1983 cases, you sue people who work for state and local government. The federal counterpart is a Bivens action, named after a Supreme Court case from 1971. The Second Circuit (Kearse, Lohier and Carney) now applies Rehberg to Bivens cases. The Court reasons:

First, the rationale supporting immunity for grand jury witnesses in § 1983 actions applies with equal force to Bivens suits. Each of the policy justifications that Rehberg cited in support of granting absolute immunity to grand jury witnesses exists in the context of a Bivens action. And second, extending Rehberg’s shelter to Bivens liability reflects the “general trend in the appellate courts” of incorporating § 1983 law into Bivens suits.

Morales also cannot sue for abuse of process or malicious prosecution. Morales does not allege that anyone had an ulterior motive for pursuing his arrest beyond prosecution itself. Nor did he allege actual malice necessary to pursue to malicious prosecution claim. 

Presidential protest too close for comfort

There's free speech, and then there's national security. What'll it be? In this case, the Supreme Court resolves two clashing principles: the right to speak your mind and protest before government officials, and the need to protect the President of the United States from assassination.

The case is Wood v. Moss, decided by a unanimous Court on May 27. The case began in 2004, when President Bush was campaigning for re-election. When the President comes to town, it's protest time. Bush supporters lined up along the motorcade route because we love our President and all that he stands for. Anti-Bush protesters also lined up along the motorcade route because they were malcontents who hated America. The President then made the spur-o'-the-moment decision to eat dinner at a nearby Inn before he headed off for good. Secret Service then moved the anti-Bush people further away than the Bush supporters, beyond W's sight and hearing. This was to protect the President, Secret Service said, "to ensure that no demonstrator would be 'within handgun or explosive range of the President.'"

The Supreme Court says the Secret Service cannot be sued under the First Amendment for moving the Bush-haters further away from the President. Normally, the Court says, this might be a case of viewpoint discrimination, which violates the First Amendment. The protesters claim they were denied equal access to the President. But there is a contrary interest, writes Justice Ginsburg: the need to protect the safety of the Chief Executive. As Justice Breyer once wrote, "The physical security of the President of the United States has a special legal role to play in our constitutional system."

This case reaches the Court on a qualified immunity appeal. That immunity protects public officials from civil rights lawsuits if they do not violate clearly-established rights. To say that the unwashed protesters have rights under the First Amendment frames the issue too broadly. Courts frame it more narrowly in qualified immunity cases in recognition that rank-and-file public employees and servants are not legal scholars and cannot anticipate esoteric or new court rulings the way that law professors can. So, as the Court puts it in this case, "no decision of which we are aware ... would alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation to ensure that groups with different viewpoints are at comparable locations at all times. Nor would the maintenance of equal access make sense in the situation the agents confronted." Looking at the issue that way, the Court finds that the officers are entitled to qualified immunity, even if the plaintiffs' think they got shafted that night.

A wise lawyer once told me that if you want to stifle speech, just claim "security" as the justification. Security trumps everything. I am not trivializing the threats to the President, but security is the name of the game in this case. The Court repeatedly makes explicit reference to what can happen to the President if the crowd gets out of control. Maybe the Justices believe that a select few federal officials, like the President, high-ranking members of his cabinet, prominent congresspeople and Supreme Court Justices, always see themselves as potential targets. I don't know if this case has broader application to other protest cases, but under this ruling, the President is off-limits.

No remedy where plaintiff suffered forced hospitalization

This woman was forcibly medicated and hospitalized by private health care providers after she fell asleep on an airplane to JFK airport following a coughing fit. When she awoke, the Jamaica Hospital decided she was a danger to herself and others and had to be confined against her will because they thought she had romantic delusions, was uncooperative and they had learned that she once threw a metal object at an ex-boyfriend. Does she have a case? She does not, at least under Section 1983 and the Rehabilitation Act.

The case is McGugan v. Aldana-Bernier, decided on May 16. In order to win under Section 1983 (the federal civil rights statute), you have to prove that government actors violated your rights. This question is sometimes more complicated than it appears. Private health care providers harmed plaintiff, but while the state gave them authority to hospitalize and medicate plaintiff, the law did not require them to do so. While this is a highly regulated area, that does not mean the state is responsible for what happened to plaintiff. Binding Second Circuit precedent, Doe v. Rosenberg (1999), has already laid down the ground rules in this area, and the Second Circuit (Leval, Hall and Lohier) is not about to overturn one if its prior cases. So the Section 1983 case is gone.

What about the Rehabilitation Act claim? That disability discrimination law kicks in when the defendant receives federal funding. The Court says "The question we face is whether McGugan’s complaint asserts an actionable claim that she was subject to 'discrimination' by reason of her disability." This brings us to a lengthy discussion on what it means to discriminate in the medical context:

The term “discrimination” is potentially confusing in the context of medical treatment. The word has two very different significations — one positive, the other pejorative. In its positive sense, one discriminates by drawing distinctions that are relevant to the qualities or characteristics of the thing observed. In its negative or pejorative sense, one discriminates by withholding advantages or inflicting disadvantages on the basis of irrelevant criteria, under the influence of irrational bias.A doctor who administers a medical treatment to a patient (or withholds it) because the doctor’s medical training leads her to conclude that the treatment is medically appropriate (or inappropriate) is practicing the benign form of discrimination. This is true even if the doctor’s medical understanding is flawed and her knowledge is deficient. On the other and, a doctor who inflicts or withholds a type of medical treatment for reasons having no relevance to medical appropriateness — reasons dictated by bias rather than medical knowledge — is practicing the pejorative form of discrimination.

It is clear that the intention of the Rehabilitation Act in prohibiting discrimination is to prohibit the pejorative, and not the benign, form. Thus a doctor may refuse to prescribe a particular treatment, which the disabled patient has requested, because of the doctor’s assessment (based on an appraisal of the patient’s medical condition) that the treatment would be harmful. The doctor’s refusal is not discrimination in violation of the statute, even if the doctor’s medical analysis is flawed. Such a decision may be malpractice, but it is not discrimination. Section 504 does not authorize a claim for malpractice.

So there is good discrimination and bad discrimination under Section 504. An example of bad discrimination in this context was Green v. City of New York (2d Cir. 2006), when the plaintiff was forcibly hospitalized based on the mistaken assumption that his Lou Gehrig's disease rendered him incompetent to grant or withhold consent to hospitalization. But this case is not Green. Plaintiff does not allege bad discrimination in her Complaint. Plaintiff claims the hospital determined that she was mentally ill based on irrelevant considerations, i.e, she did not know who she was dating, would not answer questions and had acted violently toward an ex-boyfriend. In rejecting her claim, the Court concludes, "Even if, as McGugan alleges, this evidence is not sufficient to support a minimally competent conclusion, McGugan has not plausibly alleged that the decision was based on improper considerations, unrelated to determining whether she had a mental illness likely to result in serious harm to herself or others. Accordingly, while she may have alleged medical malpractice, she has not alleged discrimination as required to state a claim under § 504."

Public employee speech retaliation against DOCS fails

In this public employee whistleblower case, the plaintiff claimed to suffer retaliation after complaining about various workplace problems. The district court granted the defendants summary judgment, and the Court of Appeals affirms.

The case is Norton v. New York State Department of Correctional Services, a summary order decided on May 9. This decision is a relatively short one, but it provides a good summary on the state of the law in this area. The general rule is that you cannot suffer retaliation for speaking out on matters of public concern. But these cases provided limited avenues for relief. "Public concern" speech has a specific definition. Here are plaintiff's grievances, and why she loses the case:

1. "Norton, who is African-American, complained that she was denied advancement in favor of a white employee with less seniority, and that specific white employees were treated better than she was." But this is not First Amendment speech. The Second Circuit (Sack, Raggi and Chin) says, "[t]his is a quintessential employee grievance." The Court adds, "Norton’s complaints of personal discrimination are not connected to any broader policy or practice and, thus, do not raise a public concern of systemic discrimination." Society does not really care about personal workplace grievances, at least for purposes of deciding whether the plaintiff engaged in protected activity.

2.Plaintiff also complained about HIPAA violations. This does not qualify as First Amendment speech, either. "[S]he [simply] alleges that she reminded defendants of HIPAA disclosure protections when they asked her to give information concerning her own off-duty provision of health care to her mother and other patients. Nothing in this alleged statement reached beyond a 'generalized public interest in the fair or proper treatment of public employees,' which we have said is 'not enough' to trigger First Amendment protection.  Indeed, Norton admits that she was complaining of 'personal violations of her and/or her mother’s medical and health information.'" So, while HIPAA protects medical privacy, HIPAA-related complaints are not necessarily First Amendment complaints.

3. "[W]hile Norton’s alleged complaints of forced overtime and under-staffing might implicate concerns for staff and patient safety, read in context, it is apparent that their primary focus is Norton’s own work situation. Specifically, Norton complained of being forced to work overtime during, and immediately after, nine 16-hour days over a two-week period. Similarly, she complained of understaffing within days of informing her employer that she intended to file grievances related to her schedule." Again, personal grievances are not First Amendment grievances.

It also hurts plaintiff's case that she aired her complains internally, not publicly. "Nothing in the complaint suggests that [she] made a single public statement or ever intended to make such a statement.” For this proposition, the Court of Appeals cites Fahs Constr. Grp., Inc. v. Gray, 725 F.3d 289, 291 (2d Cir. 2013) (noting form of speech was “exclusively nonpublic” where plaintiff “availed itself of a dispute resolution mechanism entirely internal to [the Department of Transportation]”).

New York City ordered to make its polling places compliant with federal disability law

How does the Americans with Disabilities Act apply in the real-world? This case -- involving inaccessible polling places in New York City -- tells us how.

The case is Disabled in Action v. Board of Elections, decided on May 14. The district court ruled against the City and issued an injunction to make voting rights more accessible. The Court of Appeals (Cabranes, Hall and Chin) affirms. The Court says that

The deposition testimony of surveyors and individuals with disabilities confirms that barriers to access exist on election days that make it difficult for disabled voters to cast their ballots in person. For example, in 2010 Rima McCoy, the Voting Rights Director for CIDNY from July 2008 to December 2011, inspected, among others sites, the poll site located at P.S. 13 in Queens. When she arrived at P.S. 13 there was no sign at the inaccessible main entrance to direct disabled voters to the accessible entrance. After she located the accessible entrance on her own, she found that the door was locked and the bell did not work. Once inside, McCoy observed that there was no signage from the accessible entrance to direct voters to the voting area or to inform them on which floor the voting area was located. Further, the placement of the ADA privacy booth in the voting area made the booth inaccessible to wheelchair users.

Other disabled voters had similar experiences, including those with vision problems. The Court of Appeals reminds us that state and local governments have to provided the disabled with "meaningful access" to government programs, even if that means the government has to make reasonable accommodations for them that do not cause an undue financial or administrative burden on the government.

While the City argues that no voters have been deprived of the right to vote as a result of barriers to poll site accessibility, the Court says that "Plaintiffs need not, however, prove that they have been disenfranchised or otherwise 'completely prevented from enjoying a service, program, or activity' to establish discrimination under Section 504 [of the Rehabilitation Act] or Title II [of the ADA]." The government fails the "meaningful access" test because plaintiffs are unable to fully participate on election day. "To assume the benefit is anything less -- such as merely the opportunity to vote at some time and in some way -- would render meaningless the mandate that public entities may not afford[ ] persons with disabilities services that are not equal to that afforded others." In addition, "By designating inaccessible poll sites and failing to assure their accessibility through temporary equipment, procedures, and policies on election days, BOE denies plaintiffs meaningful access to its voting program." And, while some plaintiffs were able to vote thanks to the help of others, "The right to vote should not be contingent on the happenstance that others are available to help."

The City argued that it reasonably accommodated disabled voters by reassigning them from inaccessible polling sites and remedying barriers as they were made aware of them on election days. But the City offered no evidence that it transferred voters to better sites or told them about the possibility of such a transfer. And the ad hoc approach to solving election problems was proven inadequate.

Justices rule in favor of victim in mistaken identity police shooting case

Are you a qualified immunity junkie? If you handle Section 1983 cases, you should be. Qualified immunity (as opposed to complete immunity) means that public officials can avoid liability in close cases where the courts give them the benefit of the doubt, i.e., if the case law was not clearly-established at the time. In this case, the Supreme Court reverses summary judgment in a qualified immunity case where the police shot someone in the chest.

The case is Tolan v. Cotton, decided on May 5. As usual in some of these police cases, the facts are tragic. In the middle of the Texas night, two police officers mistakenly thought Tolan was driving a stolen car. When they went to Tolan's home, Tolan's parents came outside to tell the police they got the wrong guy. Sgt. Cotton then shows up. Tolan and his mother testified that Cotton slammed mom against the garage door, causing her to fall to the ground. In contrast, Cotton said the mother "flipped her arm up and told him to get his hands off her." Meanwhile, Tolan was lying on the ground. Tolan testified that when he saw the officer push his mother, he rose to his knees and said, 15 to 20 feet away, "get your fucking hands off my mom." Cotton then shot Tolan three times. One bullet entered Tolan's chest, collapsing his lung and piercing his liver. This case received quite a bit of media attention. Tolan, by the way, is a former minor league baseball player and the son of former Major Leaguer Bobby Tolan.

Reversing the Fifth Circuit, the Supreme Court says the police officer is not entitled to summary judgment on qualified immunity grounds. The Court of Appeals resolved disputed fact issues in finding that the officer did not violate clearly-established law, including whether the area was dimly-lit, whether the mother refused orders to remain quiet and calm, whether Tolan was shouting, and whether Tolan was moving toward Sgt. Cotten or whether he was on his knees at the time. If Tolan's side of the story is true, then Cotton subjected him to excessive force. If Cotton's version is true, then the shooting may have been justified. These disputes cannot be resolved on paper. We need to swear in a jury for this.

The conservative Court majority has come under attack for disfavoring civil rights plaintiffs. For that reason, the following excerpt from the opinion may surprise you. In reversing summary judgment, the Court says:

The witnesses on both sides come to this case with their own perceptions, recollections, and even potential biases.It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system. By weighing the evidence and reaching factual inferences contrary to Tolan’s competent evidence, the court below neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.  

Qualified immunity junkies know the basic legal standard in these cases. Or do they? The Supreme Court frames it this way:

In resolving questions of qualified immunity at summary judgment, courts engage in a two-pronged inquiry. The first asks whether the facts, “[t]aken in the light most favorable to the party asserting the injury, . . . show the officer’s conduct violated a [federal] right[.]” ... The second prong of the qualified-immunity analysis asks whether the right in question was “clearly established” at the time of the violation. Governmental actors are “shielded from liability for civil damages if their actions did not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’”

The lower federal courts have added a third prong: whether the defendant's actions were objectively reasonable under the circumstances. As Sonia Sotomayor noted when she was a Second Circuit judge, the Supreme Court has never adopted that element of the qualified immunity test. One of these days the Supreme Court will have to resolve whether qualified immunity should apply when the officer's actions are objectively unreasonable but the law was clearly established. 

Bergstein & Ullrich prevail in state-law whistleblower case

The New York State Court of Appeals has breathed some life into the whistleblower law, under which most cases fail because the plaintiff must satisfy narrow requirements in order to prove that she was terminated from her position for speaking out against public health and safety violations at work.

The case is Webb-Weber v. Community Action for Human Services, decided on May 13. I briefed and argued the appeal in the Court of Appeals. Under the law, an employee cannot suffer retaliation for disclosing or threatening to disclose to a supervisor or to a public body any of the employer's activities that violate a law, rule or regulation and either "creates and presents a substantial and specific danger to the public health and safety, or constitutes health care fraud." Seems simple enough, but read the law carefully and you'll see the many ways that courts have ruled against plaintiffs in these cases. Either the employer's bad practices are not actually illegal, or the practices do not "create a substantial and specific danger" to public health and safety.

This case got dismissed for a different reason. The mid-level appeals court in New York required the plaintiff in her lawsuit to cite the laws, rules or regulations. Without this chapter-and-verse, the case would be dismissed. Plaintiff's first lawyer (not me) did not cite the rules in the Complaint. The First Department threw out the case for that reason. The Court of Appeals reverses and reinstates the Complaint.

The plain language of Labor Law § 740 (2) (a) does not impose any requirement that a plaintiff identify the specific "law, rule or regulation" violated as part of a section 740 claim. Subdivision 2 (a) prohibits an employer from taking retaliatory personnel action against an employee because she either discloses or threatens to disclose the employer's "activity, policy or practice." The reasonable interpretation is that, in order to recover under a section 740 claim, plaintiff must show that she reported or threatened to report the employer's "activity, policy or practice," but need not claim that she cited any particular "law, rule or regulation" at that time.

The Court of Appeals also says that plaintiff makes out a claim because the allegations in the Complaint suggest that she spoke out about serious dangers to public health and safety. The Court of Appeals says,

According to the amended verified complaint, plaintiff apprised Bond and other Community Action representatives about issues she claims endangered the welfare and safety of Community Action patients. Specifically, plaintiff registered complaints about the falsification of patient medication and treatment records, inadequate fire safety, mistreatment of Community Action residents, and deficiencies in patient care and in the facility itself. When those conditions continued unabated, plaintiff notified the OMRDD and the New York City Fire Department. The OMRDD conducted a survey of the Community Action premises and issued a "60-Day Order"; when a follow-up survey indicated that the violations had not been remedied, Community Action was placed under sanctions by the New York State Department of Health. Moreover, the New York City Fire Department issued three violations against defendants.

These allegations allow plaintiff to proceed with discovery. "The substantive allegations in the complaint, particularly those that assert that sanctions and violations were issued by public bodies, allegedly as a result of plaintiff's complaints, sufficiently support plaintiff's allegation that defendants violated various laws, rules or regulations. Moreover, defendants can request in a bill of particulars that plaintiff identify the particular laws, rules and regulations allegedly violated."

I believe this is the first time the Court of Appeals has defined "health and safety" violations under the state whistleblower law. While the decision does not go into detail about the problems at the facility, it provides some guidance into which cases will fly. It also suggests (contrary to some lower court rulings) that health and safety problems inside the facilities are sufficiently "public" under the law.

Free speech win for the companies who make school gymnasium products

The First Amendment does not just protect individuals. As you know from the outcry over the Supreme Court's Citizens United ruling, the free speech clause also protects corporations. This First Amendment case is unusual because the corporation sued New York City over its refusal to use its product. The Second Circuit says the plaintiff has a case.

The case is Safepath Systems, LLC v. New York City Department of Education, a summary order decided on April 30. Safepath and Gym Door Repairs make those electric folding partitions that you see in school gymnasiums. Under state law and certain regulations, the City schools have to contract with plaintiffs to install these devices. Plaintiffs argue that the City stopped using their services in retaliation for plaintiffs' public objections to defendants' failure to comply with these mandates. Here is how the Court of Appeals (Calabresi, Livingston and Cabranes) describes plaintiffs' speech:

Specifically, plaintiffs allege that they notified defendants of their failure to comply, and, upon seeing no result, also notified the New York City Department of Investigations (“NYCDOI”) and the New York State Attorney General’s Office (“NYAG”). Plaintiffs also filed a lawsuit in New York state court pursuant to NYCPLR Article 78 to compel defendants to enforce the law, regulation, and manual. Plaintiffs allege that defendants thereafter “instructed contractors . . . to ‘never use’ GDRI or SPS on any NYCDOE or NYCSCA projects.” They also “removed (or caused the removal of) the Safe Path System from the specifications of NYCSCA.”

In order to win a free speech case, the plaintiff has to show that it spoke out on a matter of public concern, and not solely on a matter that is personal to the plaintiff. My instinct would be that plaintiffs lose this case because their speech was personal to them, that the City failed to use their products. But the Court of Appeals sees it differently: "Plaintiffs’ complaints and their subsequent lawsuit were of public interest, because they were publicly asserting that defendants were failing to comply with the law, thereby allegedly endangering New York City schoolchildren. That there is an ancillary private interest (here, plaintiffs’ profit motive) does not preclude First Amendment protection for speech that accuses defendants of failing to follow the law."

Plaintiffs also win the appeal because they petitioned the government for redress of their grievances, also protected under the First Amendment. The Court notes that “[t]he rights to complain to public officials and to seek administrative and judicial relief from their actions are protected by the First Amendment.” That is true enough, but the Second Circuit has previously held that a lawsuit cannot predicate a free speech claim unless it addresses a matter of public concern. The Supreme Court has similarly held. But in this case, the Court says, "even if the topic had not been of public interest, by complaining to defendants, the NYCDOI, and the NYAG, and by filing the Article 78 petition, plaintiffs were engaging in protected speech." I could be wrong, but this seems at odds with prevailing law. I am sure plaintiffs don't mind. Their case goes forward.

Hard to challenge poor performance evaluations in employment discrimination cases

A common issue in employment discrimination cases is how to prove pretext when management says it fired the plaintiff for poor job performance. It is usually not enough for the plaintiff to simply disagree with the employer's assessment. It's also difficult to do this when the plaintiff has bad performance evaluations. This case tells us how it can all shake out.

The case is Davies v. New York City Department of Education, a summary order decided on April 25. Plaintiff says her teaching performance was unfairly evaluated after taking FMLA leave. The employer says there was no retaliation, pointing to the school's "numerous unsatisfactory ratings of Davies's classroom conduct and complaints from students and teachers regarding Davies's performance from March 2008 to April 2009." From that evidentiary proffer, plaintiff cannot win unless she can show these poor evaluations were false. The Court of Appeals (Winter, Parker and Hall) summarizes plaintiff's argument:

Davies does not challenge the substance of the unsatisfactory evaluations. Instead, she claims that for the past twenty years she has had a sterling performance record and the EBA’s timing and close scrutiny of her performance is circumstantial evidence that the EBA was deliberately developing a case against her.

That's one way to challenge poor evaluations. I say this because courts are reluctant to second-guess job evaluations, especially those that require specialized knowledge, like in the field of public education. The Court of Appeals is not buying plaintiff's argument, though.

Davies cannot use her past performance to shield her from two years of unsatisfactory performance evaluations. As for the timing and frequency of her performance reviews, the EBA conducted its first formal observation of Davies’s class on March 6, 2008. It subsequently continued to observe her classroom performance to evaluate whether she was implementing recommendations for improvement, but Davies continued to perform poorly and received an overall unsatisfactory rating for the 2007-2008 and the 2008-2009 school years. We have been clear that temporal proximity between protected activity and an adverse employment action, alone, is insufficient to establish pretext, and nothing about the timing and number of evaluations suggests a retaliatory intent as opposed to normal oversight of a less-than satisfactory teacher.

So what does this mean for plaintiffs and their attorneys? When the lawyer meets with the potential client for the first time, ask about the performance reviews. Even if the potential client says they were fine, take a look at them. Contemporaneous performance reviews are the best measure of how the plaintiff was performing her job. At least that's how the courts see it. If the reviews are problematic, the case is going to be problematic. 

Second Circuit clarifies how to plead a "state actor" conspiracy claim

Non-lawyers sometimes think constitutional protections apply whenever someone is wronged. This is common when a private entity silences someone. The victim asserts his First Amendment rights to speak, but that goes nowhere because the government did not silence the victim, a private entity did. More broadly, none of our constitutional provisions apply without "state action," a clunky phrase that means the government has to be responsible for the rights deprivation.

The case is Betts v. Shearman, decided on May 2. This case began as a domestic dispute when the wife, Shearman, went beserk and Betts hid out in a spare bedroom while Sherman called the police to falsely complain that Betts had assaulted her. Betts was arrested for assault, but the charges were later dropped. The general false arrest claim (dismissed under Federal Rule 12 for failure to state a claim) is summarized here. Betts also says that Sherman's bad acts are imputed to the government for state action purposes because the police worked with her to falsify the charges. That claim also fails.

In dismissing this claim, the Second Circuit (Winter, Walker and Wesley) summarizes the state of the law on state actor conspiracy, using a Second Circuit and two district court rulings as examples. It is settled law that "a private actor can only be a willful participant in joint activity with the State or its agents if the two share some common goal to violate the plaintiff's rights." But the Court of Appeals uses the lower court rulings for illustration for lack of any good ones from the Court of Appeals.

In one case, Ginsburg v. Healey Leasing, 189 F.3d 268 (2d Cir. 1999), the leasing manager called the police to report that plaintiff did not pay his rental fee. But there was no joint state actor claim because "Healey Leasing's requesting police assistance and providing information that led to police action did not make Healey Leasing a joint participant in state action." But in two district court cases, the courts found potential joint actor liability. In Bang v. Utopia Restaurant, 923 F. Supp. 2d 46 (1996), the police arrested the plaintiff after speaking to the restaurant owner for 20 minutes. The court said it was reasonable to infer that, during that 20 minute conversation, the police and the business owner agreed to arrest the plaintiff without probable cause. Had the police arrested plaintiff as soon as they showed up at the restaurant, there would not  have been time to hatch the conspiracy. And in White v. Moylan, 554 F. Supp. 2d 263 (D. Conn. 2008), the plaintiff alleged a joint state action claim for a bogus shoplifting arrest because he alleged that security guards and the arresting officer reviewed surveillance footage and worked in tandem to arrest him for theft after determining that his merchandise was not in fact stolen.

So that's how joint action conspiracy works in constitutional cases. It does not work in this case. The husband argues that the wife conspired with the police to falsely arrest him for assault, but that does not work because "Betts's allegation that Shearman was coached by the the Officers into making false accusations is not plausible given that Sherman first called the police and reported that she was assaulted prior to her interaction with the officers."

No false arrest claim in domestic violence case

False arrest claims are hard to pursue in federal court. The Supreme Court over the years has set out rules that allow officers to win summary judgment if their actions were objectively reasonable, despite their subjective motives against the plaintiff. There is also the qualified immunity problem. In this case, these factors result in the dismissal of a false arrest case arising from a domestic dispute caused by an intoxicated wife.

The case is Betts v. Shearman, decided on May 2. Betts and Shearman were married. Shearman was drunk and also high on drugs when she became abusive toward Betts, who locked himself in room for safety. Shearman then called the police and accused Betts of assaulting her. The police came to the house, forcibly entered the spare bedroom where Betts was sleeping and arrested him. All charges against Betts were later dropped, and he then sued the police and his Shearman, now his ex-wife.

Like I said, the police enjoy many protections when they are sued for false arrest. It is clear that Betts got the shaft, but he still has to prove that the police lacked probable cause to arrest him. Even without probable cause, the police win if their actions were objectively reasonable at the time. The latter equation (also known as "arguable probable cause") is part of the qualified immunity defense, which gives the police the benefit of the doubt in tough situations.

The Court of Appeals (Walker, Winter and Wesley) summarizes Betts's claim: "Officers Rodriguez and Doe responded to a domestic disturbance based on Shearman’s report over the phone that she had been assaulted and found Betts locked in a bedroom. Betts alleged, and now argues, that the officers had reason to doubt Shearman’s credibility because she was visibly intoxicated and had made false accusations against Betts in the past, and because there was a lack of physical evidence to support an assault charge."

Here is why the Rule 12 dismissal is affirmed: the wife's false accusations in the past do not show the police lacked probable cause because the lawsuit does not allege that the police knew about her prior false accusations when Betts was arrested. The fact that Shearman did not display any signs of physical abuse does not mean the police lacked probable cause; the police are not required "to finally determine guilt through a weighing of the evidence." While Betts says his wife was obviously high and strung out, the lawsuit does not allege how the arresting officers would have known this when Shearman called the police. "Even assuming that the officers were aware that Sherman was intoxicated, absent other indicia raising concerns reliability, the officers were not unreasonable in surmising that an office had been committed by Betts."

Betts also claims the police coached Shearman to concoct false charges against him. This claim also fails under the Iqbal plausibility test. The reasoning on this issue is interesting, shedding some light on what it takes to make out a "plausible" claim:

Betts alleges that Officers Rodriguez and Doe, upon arriving at the apartment he shared with Shearman, “assisted Shearman in making a false allegation and . . . coached her in fabricating a contrived version of the events to justify a baseless and false arrest.” Betts, however, also alleges that Shearman initially phoned the police and made the same “false” accusations that, among other things, Betts assaulted her. The original accusation without the possibility of any police complicity was sufficient to sustain the arrest, thereby undermining the claim that it was the police whose false accusation denied Betts a fair trial. Moreover, it is not plausible that, without more, a complaining witness who had originally conceived of false accusations on her own accord also required “coaching” in making substantially the same accusations again.

What we have is a failed claim under the Iqbal plausibility test because the plaintiff's claims about the police conspiracy are contradicted by the facts that he necessarily had to plead in the complaint. Ten years ago, pre-Iqbal, this might not have mattered. It matters now.

Decent alibi defense does not always get you habeas relief

If you are not familiar with habeas corpus law, it might surprise you to know that federal courts defer to state court interpretations of the Constitution. This means that if the federal judges (who interpret the Constitution every day) know in their heart of hearts that the defendant did not get a fair trial, they have to sustain the conviction if "fairminded jurists could disagree" about the state court's proper application of constitutional precedent.

The case is Matthews v. Raymond, a summary order decided on April 14. Matthews was convicted of burglary in the second degree. Matthews said he was not at the scene of the crime. He told his lawyer this. But for strategic reasons, his lawyer did not pursue the alibi defense. Here is how the Second Circuit summarizes the possible alibi:

Department of Corrections documents place Matthews in downtown Brooklyn, approximately 3.5 miles away from the crime scene, just 75 to 100 minutes before the burglary was committed. This gave him very little time to reach the crime scene, acquire the burglary tools later found in the apartment, pick up the bicycle he would later use to flee the scene, circumvent the locks on the outside of the building and on the door to the second‐floor apartment without leaving signs of forced entry, and locate and take possession of the victim’s jewelry box and two laptop computers in the victim’s apartment. Although these feats are not beyond the realm of physical possibility, an alibi defense based on this evidence, even without testimony from the defendant, might well have raised substantial doubts in the mind of the judge, as trier of the facts here, as to Matthews’ guilt.

Let's not kid ourselves. It looks like Matthews had a decent alibi argument. The Second Circuit seems to think so. But according to the Court (Straub, Sack and Lohier), counsel "declined to pursue the alibi because the evidence did not conclusively establish Matthews' innocence and because it could supply a possible motive for the burglary."

You can challenge your conviction in a habeas petition on the "ineffective assistance of counsel" theory. That theory could work here, but the state court that first entertained Matthews' challenge said that his lawyer's strategic choice was permissible. The Court of Appeals concludes, "Even if we were of the view that counsel erred and that this justification did not amount to a reasonable trial strategy in light of the alibi’s exculpatory value, we cannot conclude in the face of the contrary State court judgment that any and all fairminded jurists” would agree. We therefore conclude, as we must, that Matthews’ habeas petition was properly denied."

Leering and other behavior does not create hostile work environment

Disgusting things still happen in the modern workplace. If it gets too sexual, then Title VII is violated. The plaintiff has to show that he endured a hostile work environment. If so, management has to take the harassment seriously. If not, plaintiff wins the lawsuit. In this case, the behavior was disgusting, but not sexual enough.

The case is Lewis v. City of Norwalk, a summary order decided on April 14. Plaintiff was the City's Director of Management and Budget. His openly gay supervisor, Hamilton, began making advances on plaintiff. Here is how the Court of Appeals (Calabresi, Cabranes and Livingston) sums up the evidence:

Specifically, Hamilton is alleged to have “leered” at Lewis, looking from his crotch to his head while smiling, and to have made gestures with his tongue, which Lewis found “irritating.” Lewis claims that this conduct occurred a couple of times a week in the beginning but became more sporadic over time, occurring no more than a handful of times in 2008-09. Lewis’s other allegations are that Hamilton complimented his taste in clothing; invited Lewis to join his gym so that they could work out together; invited Lewis out for drinks; and disclosed to Lewis that he was lonely in his current relationship, and asked for help dealing with his loneliness. Once, when Lewis was in his office, Hamilton banged on the door and, when Lewis told him not to come in because he was changing into his jogging clothes, Hamilton waited outside until Lewis came out and then spoke with him excitedly.

 This is not a hostile work environment, the Court says. Here's the reasoning:

The only arguably overt sexual conduct was Hamilton’s alleged licking of his lips and so-called “leering,” which, by Lewis’s own admission occurred only sporadically over time, and no more than a few times a year by mid-2009. Even assuming the conduct occurring prior to July 2009 is not time barred, which it may be under Title VII, the alleged “leering” is insufficiently severe or pervasive to qualify as having created a hostile work environment. The other “facially sex-neutral incidents”— invitations to join Hamilton’s gym, invitations to have drinks with other co-workers, and discussions about Hamilton’s personal life—even if they made Lewis subjectively uncomfortable, do not, under a “totality of the circumstances” inquiry, “create . . . an environment that a reasonable person would find hostile or abusive . . . .” Accordingly, we conclude that the District Court properly granted summary judgment for defendants on the Title VII hostile work environment claims.

Could this case have been decided the other way? It wasn't just leering. Hamilton also "made gestures with his tongue." Use your imagination on that one. It also looks like Hamilton wanted some action with Lewis, and was inordinately interested in Lewis in general. Would the result have been different if a man behaved like this to a woman? A jury could think so. Remember what the Court of Appeals said in Gallagher v. Delaney (1998):

Today, while gender relations in the workplace are rapidly evolving, and views of what is appropriate behavior are diverse and shifting, a jury made up of a cross-section of our heterogenous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment and retaliation. The factual issues in this case cannot be effectively settled by a decision of an Article III judge on summary judgement. Whatever the early life of a federal judge, she or he usually lives in a narrow segment of the enormously broad American socio-economic spectrum, generally lacking the current real-life experience required in interpreting subtle sexual dynamics of the workplace based on nuances, subtle perceptions, and implicit communications.

The plaintiff was eventually fired from his job. He claims it was because he complained about Hamilton's behavior. Management said he was fired for poor job performance, and that they were already thinking about firing plaintiff even before he complained about harassment. Plaintiff complained in response to being told that he was in danger of being fired. After an investigated deemed the complaint uncorroborated, the City went ahead with the termination. The Court of Appeals agrees that plaintiff has no retaliation case. It notes that the Supreme Court held in 2001 that "employers need not suspend previously planned employment actions upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatsoever of causality."

You can't draw blood with shaky hands

The plaintiff in this Americans with Disabilities Act case sued the local community college after he was kicked out of an academic program for dishonesty. The Court of Appeals says the plaintiff does not have a disability under the pre-2009 ADA and that the college articulated a neutral reason for plaintiff's expulsion.

The case is Widomski v. Orange County Community College, issued on April 8. Plaintiff was studying to be a licensed medical laboratory technician. He was required to submit weekly clinical summary reports to his instructor. These reports would talk about the work that students performed in their course of study. At some point, the teacher told plaintiff that he could not draw blood from patients because he has shaky hands. Although plaintiff does not have a disability that makes his hands shake, he argues that the College perceived him to have such a disability. He complained that he was not allowed to draw blood. Plaintiff was ultimately shown the door when the College came to believe that he was submitting false written reports to satisfy the academic requirements.

The Court of Appeals opts to publish this opinion, probably to clarify that the definition of "disability" under the ADA applies to each section of the Act, be it Title I (which covers employment) or other Titles which deal with public accommodations, etc. Some district courts applied a different definition for the Titles, but the Court of Appeals (Lohier, Sack and Straub) puts its foot down. Disability means disability.

On the merits, plaintiff cannot show that the College perceived him as disabled. Again this case was brought under the old ADA, not the new ADA, which grants plaintiffs more leeway in proving they have a perceived disability. Under the old ADA, the College did not regard plaintiff as having an impairment that substantially limits a major life activity. No one believed that plaintiff's shaky hands "excluded him from a broad class of jobs." Instead, he could work other jobs with his degree from the College. He just can't draw blood. I don't think the Court of Appeals wants guys with shaky hands drawing anyone's blood.

As for plaintiff's expulsion from the program, the Court says that he cannot show his removal from the program was a pretext for retaliation. (The protected activity was his lawyer's letter of protest when plaintiff was removed from the blood draw program). The College believed in good faith that plaintiff fabricated two written assignments, and plaintiff "fails to raise a genuine factual dispute as to whether this explanation is false or otherwise pretextual."