How do modern electronics affect 18th Century constitutional protections?

This case raises questions about the Fourth Amendment and the right to a fair trial in the Internet age, where everyone is posting everything online, and our personal computers contain more information than the Founding Fathers could have imagined.

The case is United States v. Ganais, decided on June 17. The defendant is an accountant. The government suspected that some of his clients were evading the tax laws, so it seized defendant's computer under a warrant. The government then copied his hard drive onto DVD's and held onto his personal and professional files for a long time, taking the position that this was government, and not defendant's, property. At some point, the government began to suspect that defendant himself was breaking the tax laws. The government then obtained a warrant to review defendant's computer files and he got indicted and then convicted for conspiracy and tax evasion.

The conviction is overturned because the search was illegal. The Court of Appeals (Chin, Restani [D.J.] and Hall [dissenting]) notes that computers these days hold a ton of material and that it is impracticable for the government to review everything at the suspect's office. So the government can copy the entire hard drive and review the material separately. That practice does not violate the Fourth Amendment. What does violate the Constitution is independently reviewing the material that falls outside the scope of the warrant. In this case of first impression, the Second Circuit finds that the Fourth Amendment prevents the government from seizing a computer and then indefinitely retaining every file for use in future criminal investigations.

As the government held onto defendant's computer files for over two years -- files that fell outside the scope of the warrant -- this was a Fourth Amendment seizure. That seizure was unreasonable, triggering the exclusionary rule analysis. Not every unlawful seizure requires the exclusion of that evidence. This one does, because the government held onto the files in bad faith (it was required to purge the non-responsive data) and the social benefits of deterring government behavior are great in light of its increased use of forensic mirror images of computer files and the need to deter the unconstitutional handling of non-responsive data. Also, the costs of suppression are minimal in this case because "this is not a case where a dangerous defendant is being set free."

The Court also takes on another issue that is ripe for the modern age: the jury's use of social media during trial. One juror posted trial-related observations on Facebook during trial and also friended another juror during trial. One of the Facebook postings said the juror might get to hang someone. Another said the trial was too boring and "someone get me outta here." When defendant found out about this post-trial, he moved for a new trial, but the trial court interviewed the juror and found that the Facebook stuff did not prejudice defendant's rights. The Court of Appeals affirms that finding but suggests that district courts instruct the jury before, during and after trial not the pull this kind of crap on social media.

Alleged hoarder pleads a due process violation against Town officials who boarded up his residence

Here's an interesting case brought under the Americans with Disabilities Act and the Due Process Clause, involving a disabled veteran whose house was deemed "unfit for human occupancy" and boarded up by the Town because the neighbors smelled gas coming from the house and he lived as a hoarder. He can sue under the Due Process Clause but not the ADA.

The case is Heckman v. Town of Hempstead, a summary order decided on June 3. Here are the facts and nothing but the facts:

Heckman is a disabled veteran who suffers from post-traumatic stress disorder and obsessive compulsive disorder. He experiences disordered thinking, insomnia, and an inability to concentrate on and complete even basic tasks. He depends on his sister to manage his personal and financial affairs. These mental disabilities allegedly contribute to Heckman’s “lack of fine motor skills” and an aversion to “part[ing] with certain objects.” As a result, Heckman alleges he has “difficulty” “maintaining his home[,]” which appears “cluttered.” In short, he is a hoarder.

One day, plaintiff arrived home to find it boarded up after Town officials heard complaints about the home. Plaintiff was not allowed to enter the house to get money or medication or to rescue the cat. Eventually, the Town gave him a vague "handwritten list of vague alleged problems to be corrected within the house." While plaintiff got the house keys back, the gas, heat, electricity and water were not turned back on, and the house is still designated as "unfit for human occupancy."

There is no ADA claim. Plaintiff fails the Iqbal plausibility test because the complaint does not permit the inference that the Town did this because of plaintiff's disability. "Allegations that defendants knew of Heckman's alleged disability because they had concluded as much based on the clutter are of a purely conclusory nature, which disentitles them to the presumption of truth." We don't have much in the way of detail about what the house looked like, but the Court of Appeals (Jacobs, Calabresi and Pooler) does say that plaintiff was a "hoarder," which I think you can assume is the manifestation of a mental illness. While I am sure plaintiff's lawyer made that argument on appeal, the Court of Appeals does not delve into this in detail.

There is, however, a due process claim. Public officials can act swiftly without satisfying normal due process requirements in the event of an emergency. They can do this "by making available some meaningful means by which to assess the propriety of the State's action at some time after the initial taking. Where there is an emergency requiring quick action and where meaningful pre-deprivation process would be impractical, the government is relieved of its usual obligation to provide a hearing, as long as there is an adequate procedure in place to assess the propriety of the deprivation afterwards."

The lawsuit sufficiently alleges that there no emergency when the Town seized the plaintiff's house. The Town could have sent a letter giving plaintiff a deadline to comply with the Town's demands. And, the complaint alleges that the Town boarded up the house without realizing that someone lived there. This suggests that non-emergency concerns caused the Town to board up the house. As for the requirement that the Town provide plaintiff post-deprivation process, plaintiff makes out a claim because "Heckman alleges that he was provided only a note, handwritten on a piece of scrap paper, stating in a perfunctory manner some purported violations of the" Town code. And no one told him of the right to request a hearing to contest the alleged violations.

More guidance on "reasonable accommodations" under the ADA

This case reminds us that while plaintiffs are entitled to a medical leave of absence to accommodate their disabilities, the employer is not obligated to honor that request if the plaintiff does not assure management when she can return to work.

The case is Petrone v. Hampton Bays Union Free School District, a summary order issued on May 28. Plaintiff is a schoolteacher who suffers from anxiety and panic disorder. Plaintiff says he could have eventually returned to work and resumed his teaching responsibilities had the district accommodated him.

The reasonable accommodation requirement under the Americans with Disabilities Act remains the most elastic legal concept under the civil rights laws. The employer has to find a way to make it work for the plaintiff to accommodate the disability. If the proposed accommodation is not reasonable, i.e., it creates an undue burden on the employer, i.e., it costs too much money or would fundamentally alter the nature of the workplace, then the plaintiff does not have an ADA claim.

The accommodation is also not required if it would ultimately render the plaintiff an unqualified employee. In other words, you have to show that plaintiff could perform the essential functions of the job with the accommodation. While this can be a fact-specific inquiry, the employer can still get summary judgment. In this case, the employer wins because plaintiff was not a qualified employee under the ADA; "he did not, and could not, provide [the school district] with any assurance that a temporary leave of absence would allow him to resume teaching. This is because neither Petrone nor his doctor ever informed the District of a date when he anticipated being able to return to work or indicated how long a leave of absence might have to last."

When should counsel ask the jury for a specific dollar amount?

In this excessive force claim against police officers, the jury awarded the plaintiff $55,000 for pain and suffering and $2,000 in punitive damages. On appeal, the plaintiff argues that the jury should have awarded more money. The Court of Appeals disagrees.

The case is Stanczyk v. City of New York, decided on June 3. The Second Circuit does not tell us much about what happened to the plaintiff, but it all started when plaintiff was walking her dog. The Court summarizes her case as follows:

Stanczyk claimed that she took her dog out to do its “business,” and her dog complied by urinating. The Officers then approached Stanczyk and accused her of not cleaning up a pile of feces that they claimed had just been deposited by her dog. Stanczyk protested her innocence, but the Officers ordered her to clean up the deposit. She did so and then was arrested either for screaming at the Officers and banging on their patrol car or solely because she did not have identification or a license for her dog on her person. A struggle ensued, and Stanczyk suffered bruising and other injuries – either because the Officers struck her in the head and breasts and slammed the patrol car’s rear door on one of her legs or because she fell to the ground while screaming and resisting the Officers’ efforts to handcuff her.

The City made an Offer of Judgment in the amount of $150,000, plus attorneys' fees. Under Rule 68, if the plaintiff denies the offer and recovers less money at trial, then her attorneys' fees entitlement stops from the date she rejected the offer. That happened here, and the Court of Appeals rejects plaintiff's argument that the Offer did not require any reduction in her attorneys' fees. If you are a Rule 68 junkie, the opinion sheds some light on how that rule works. If you are casual Rule 68 fan, the short answer is that plaintiff has to think long and hard about whether to take the offer and whether it's worth the risk to reject it.

The main event is plaintiff's argument that the jury should have awarded more money. The Second Circuit (Wesley, Carney and Rakoff [D.J.]) rejects that argument, for the following reasons:

1. Plaintiff's counsel did not move for a new trial on damages when the trial ended. So the issue is waived, except that defendant has not highlighted that waiver on appeal. So the Court of Appeals resolves the issue on the merits. The trial court gave the jury sufficient direction on awarding plaintiff future damages for pain and suffering. While plaintiff also wanted the jury to award future medical costs, she did not present to the jury enough evidence of what she actually paid out in medical costs. Plaintiff also did not elicit testimony from her medical providers or experts about these future costs as well. That omission undercuts plaintiff's argument that the jury should have awarded her more money in future costs.

2. In addition, plaintiff's lawyer did not ask the jury for a specific dollar amount during summation. While defense counsel made some inflammatory racial comments in summation, the Court says, "in light of the unique facts of this case, [plaintiff's lawyer's] failure to provide evidence as to cost or to provide the jury with a monetary reference point precludes a finding that the challenged conduct, even if improper, erroneous, abuse of discretion, caused prejudice to the jury's award of compensatory damages."

Many lawyers do not like asking the jury for a specific dollar amount in summation. They do not want to look the jury in the eye and make the presumptuous suggestion about how much money to award their clients. Plus, some people are uncomfortable in general talking about money to strangers. The Court of Appeals is not saying that you have to ask for a dollar amount, but it's the rare appellate ruling that faults the lawyer for not doing that.

Police shooting justified in high-speed chase

Reading the facts in this case, you know the Supreme Court is not going to let the police stand trial on the excessive force claims against then. The plaintiffs sue on behalf of their deceased son who led the police on a wild car chase before they shot and killed him when they thought he was going to resume the chase and place more people at risk.

The case is Plumhoff v. Rickard, decided on May 27. Justice Alito summarizes the nature of the car chase. It's not pretty. After the police pulled him over, Rickard took off like a bat out of hell, driving at astonishing speeds and narrowly missing numerous accidents by the grace of God. When the chase ended, it looked as if Rickard was going to make another run for it, the officers fired 12 more shots at Rickard, killing him and his passenger. The family sues under the Fourth Amendment for excessive force.

Excessive force cases are hard enough to win. The police are allowed to use their best judgment in tough situations, and judges are not going to rule against the police on the basis of 20/20 hindsight. The cases are even harder to win in high-speed chases. In 2007, the Court said that a "police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death." That describes this case. Rickard was driving more than 100 miles per hour, passing more than two dozen vehicles, several of which had to swerve out of the way. When the chase finally stopped, Rickard began spinning his wheels and threw the car into reverse. A reasonable officer would have concluded that Rickard was going to resume the chase. The deadly force was therefore reasonable, the Court unanimously says.

The officers did fire a total of 15 shots. The plaintiffs say that was excessive in and of itself. Not so, the Court says. "It stands to reason that if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended." During the 10-second period when the shots were fired, Rickard never abandoned his attempt to flee. The police did what they had to do. "This would be a different case if [the police] had initiated a second round of shots after an initial round had clearly incapacitated Rickard and had ended any threat of continued flight, or if Rickard had clearly given himself up. But that is not what happened," the Court says.

Setting a precedent, but recovering no damages

As I wrote on Friday, the Supreme Court now holds that the First Amendment protects truthful courtroom testimony by a public employee. Plaintiff-side employment lawyers have waited years for a decision like this, one that allows them to assert that the Court revived a cause of action that has nearly died since the Supreme Court narrowed the legal standard in Garcetti v. Ceballos, which held that the First Amendment does not protect speech pursuant to the plaintiff's job duties.

But Lane v. Franks, decided on June 19, is actually a two-part decision. Yes, the First Amendment prohibits management from firing someone in retaliation for testifying about work-related matters. But part two of the decision says that Lane cannot go after the individual defendant, who enjoys qualified immunity.

Public defendants who are sued for damages may invoke qualified immunity if the state of the law was not clearly established at the time of the rights violation. If the case law was murky at the time the plaintiff was denied constitutional rights, the defendant does not have to stand trial because she cannot be expected to know future legal developments. This means that innovative claims may be dismissed on a summary judgment motion.

The Supreme Court says the defendant in Lane v. Franks gets qualified immunity because the cases in the Eleventh Circuit – where this case originated – were not clear on whether Lane could be fired in retaliation for testifying in court. Some cases pointed one way, but some cases pointed in the opposite direction. This was common in Garcetti cases. The Supreme Court's ruling in 2006 was open to interpretation, and the lower federal courts were all over the place in applying Garcetti in different contexts, including courtroom testimony. However, since the Supreme Court has now affirmatively said that the First Amendment prohibits retaliatory terminations like this, the law is now clearly established for the next plaintiff. This is a tough break for Lane, who wins the case for everyone else, but himself. (A claim remains against one defendant in her official capacity, for which there is no qualified immunity, but those claims are hard to win).

Supreme Court gives one to the workers

The Supreme Court has ruled that public employees who testify truthfully in court outside the scope of their job responsibilities cannot be disciplined under the First Amendment. The case represents only the second time in eight years that the Court has addressed the free speech rights of public workers.

The case is Lane v. Franks, decided on June 19. The plaintiff, Lane, oversaw a statewide training program for young people, handling day-to-day operations and looking after the program's finances. When Lane audited the program's finances, he discovered that an employee, Schmitz, was on the payroll but not doing any work. Lane fired Schmitz, who was arrested for theft and mail fraud in connection with her no-show job. After Lane testified against Schmitz in the Grand Jury and at trial, she was convicted. Twenty nine people from Lane's program were then fired, but 27 of the were brought back. Lane remained unemployed, however. His lawsuit alleges he was fired in violation of the First Amendment.

In Garcetti v. Ceballos (2006), the Supreme Court distinguished between citizen (protected) and employee (unprotected) speech, holding that the First Amendment does not protect public employees who testify pursuant to their official job duties. Although Kane claims he was fired because he testified in court, the Eleventh Circuit dismissed the case, reasoning, "even if an employee was not required to make the speech as part of his official duties, he enjoys no First Amendment protection if his speech 'owes its existence to the employee's professional responsibilities' and is a 'product that the employer himself has commissioned or created.'" Lane acted as an employee and not as a citizen because he acted as an employee, pursuant to his official duties, when he investigated Schmitz's employment and terminated her. "That Lane testified about his official activities pursuant to a subpoena and in the litigation context," the Eleventh Circuit said, "does not bring Lane's speech within the protection of the First Amendment."

The Eleventh's Circuit's reasoning is in line with other Circuits, who have narrowly interpreted Garcetti to mean that speech arising from workplace duties is often not protected. Some Circuits have also held that Garcetti does not protect trial testimony, either. The Second Circuit is among the courts that have scaled back the rights of public employees under the First Amendment, and two years ago it issued a similar ruling in a courtroom testimony case. The Third Circuit supported the plaintiff in this kind of case, making the case ripe for Supreme Court review.

Of course, the Supreme Court is not bound by the Courts of Appeal, and it can interpret its own precedents as it sees fit. It holds unanimously that Lane could not be fired in retaliation for his speech.

First, Lane spoke as a citizen when he testified in court. "Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment." The Court notes that the legal system relies on truthful testimony and that every citizen has a duty to tell the truth in court.

Second, the Court rejects the argument that Lane's speech was unprotected employee speech simply because he learned of the subject matter from his everyday job duties. In Garcetti, a deputy district attorney was disciplined after he wrote a memo to superiors recommending dismissal of a certain prosecution. It was his job to write that memo. Lane is not Garcetti. Clarifying what the Supreme Court wrote in Garcetti, Justice Sotomayor writes:

Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. The Garcetti Court made explicit that I ts holding did not turn on the fact that the memo at issue “concerned the subject matter of [the prosecutor’s] employment,” because “[t]he First Amendment protects some expressions related to the speaker’s job.” In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee— rather than citizen—speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.

How does this affect Second Circuit precedent interpreting Garcetti? The Court of Appeals has broadly interpreted Garcetti to mean that the speech is not protected if it is "part and parcel" of the employee's ability to do his job. In Weintraub. v. Board of Education (2d Cir. 2010), a teacher lost his case after he complained about student discipline at the school. Ruling that the plaintiff engaged in employee but not citizen speech, the Second Circuit held that

We join these circuits and conclude that, under the First Amendment, speech can be “pursuant to” a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer. In particular, we conclude that Weintraub's grievance was “pursuant to” his official duties because it was “part- and-parcel of his concerns” about his ability to “properly execute his duties,” as a public school teacher-namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning.

Weintraub was a broad holding. Follow-up Second Circuit rulings applied Weintraub's reasoning to strike down a variety of First Amendment cases where the plaintiff spoke out on matters arising from his employment. Does Lane v. Franks open the spigot for additional public employee cases to proceed? Is Weintraub no longer good law? The next batch of public employee First Amendment cases will tell us the answer.

Lessons learned on late notice of appeal

This one is short but not so sweet. Federal practitioners know that you have 30 days to file a notice of appeal. Thirty days is 30 days. Not 31 days.

The case is Martinez v. O'Leary, a summary order issued on June 18. The plaintiff was a public employee who sued the Corrections Department under the Due Process Clause. The district court dismissed the case on summary judgment. Judgment was entered on July 3, 2013. The notice of appeal was filed on August 3, 2013. At first glance, that looks like 30 days. But it's not. The month of July has 31 days, so July 3 to August 3 is actually 31 days. The deadline was August 2.

The 30 day deadline is jurisdictional, so the appeal is untimely. There are exceptions to this rule, such as when someone files a post-trial motion with the district court. See, Federal Rules of Appellate Procedure 4(a)(1)(A). But none of those exceptions apply here. The case does not get decided on the merits because the notice of appeal was filed a day late and a dollar short.

This jurisdictional issue was flagged by the City of New York at the last minute, right before oral argument, when a City lawyer told the Court of Appeals about the deadline problem. Plaintiff's counsel immediately responded with a letter to the Court, stating:

From counsel’s recollection, counsel for the Appellant accessed the District Court’s ECF filing system approximately 10 to 15 minutes prior to midnight on August 2, 2013 for purposes of filing Appellant’s appeal. Any delays in so filing the appeal were delays caused by the ECF filing system itself such that the notice of appeal ended up being filed the stroke of midnight or immediately after midnight. The inability to get the notice of appeal filed prior to midnight, as a result of delays with the ECF filing system are tantamount to the Clerk’s Office being inaccessible. Such electronic delay creates unique circumstances, dictating that equity, mandates that this Court not dismiss the appeal. Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989).

Talk about waiting until the last minute! Counsel intended to file the notice of appeal within 30 days but something went wrong in the electronic filing system and the notice went through right after midnight. (Counsel also argued that the 30-day deadline did not start to run until the day after judgment was entered, which was July 4, a national holiday, which also doesn't count in the 30 day calculus). Lawyers are not always responsible for filing problems like this, but the Court of Appeals rejected this excuse and dismissed the appeal entirely.

What lessons do we learn from this? Don't file jurisdictional documents at the last minute. I always assume something might go wrong with the Post Office or the electronic filing system. Imagine the panic when something is due by midnight and the ECF system shuts down for some God-forsaken reason. File it early.

In God We Trust (all others pay cash)

America's favorite atheist brings his song and dance to the Second Circuit, arguing that "In God We Trust" does not belong on U.S. currency because it constitutes an establishment of religion. The Second Circuit rejects that argument and joins the other Circuits who say that this slogan has a secular purpose and does not infringe on anyone's religious (or non-religious) beliefs.

The case is Newdow v. Peterson, decided on May 28. Michael Newdow is the guy who challenged the constitutionality of the Pledge of Allegiance in the U.S. Supreme Court (which dismissed the case for lack of standing). He represents the plaintiffs in this case. The Court of Appeals says "In God We Trust" has a secular purpose and neither advances nor inhibits religion. Citing dicta from various Supreme Court decisions, the Second Circuit (Parker, Hall and Matsumoto [D.J.]) notes that the High Court has made passing reference over the years about the legality of this slogan. While the Court of Appeals acknowledges that this language is non-binding dicta (or extraneous Supreme Court musings), the Second Circuit is obligated to respect even Supreme Court dicta, which certainly tells us how the Justices will resolve this issue if it ever takes up the issue, which it probably won't because the lower courts are in agreement on this issue. The Establishment Clause challenge fails.

Newdow also argues that "In God We Trust" violates the Religious Freedom Restoration Act of 1993. Congress enacted RFRA in response to Supreme Court rulings that made it easier for the government to infringe on religious practices provided the laws or regulations apply to everyone, even if they incidentally burden religious practices. (So that laws against peyote use are legal even if Native Americans use peyote for religious reasons). In order to win a RFRA case, though, you have to show that the law or regulation substantially burdens a religious practice or belief.

Plaintiffs argue that using money with "In God We Trust" forces them "to bear upon their persons a statement that attributes to them personally a perceived falsehood that is the antithesis of the central tenant of their religious system." And that using money with this slogan "forces them to proselytize." The Court of Appeals is not buying it. The judges say that using money with God's name on it is not like being forced to use a license plate with an objectionable political slogan (i.e., Wooley v. Maynard [1977] held that "Live Free or Die" violates the First Amendment). In other words, "the bearer of currency is ... not required to publicly advertise the national motto." In sum, "we find that appellants' system of beliefs is not substantially burdened by the placement of the motto on currency."

The NYPD has nothing better to do

Crime is down, so we have to find new criminals. The NYPD is doing this through "Operation Lucky Bag," in which the officers leave a decoy handbag or wallet lying around in Central Park and wait for greedy slob to walk off with it. The lucky bag finder is arrested if he exhibits an intent to steal it, i.e., he throws away the bag after removing something from it, usually money. In this case, a woman found the bag and was arrested. She sues the police.

The case is Schwartz v. Marcantonatos, a summary order decided on May 20. Plaintiff found the bag and placed it in a shopping bag. She never looked inside her lucky bag. Instead she headed toward the Visitor Center. A bike-riding and plain-clothed lieutenant then approached plaintiff in an effort to set her up for arrest. He asked if plaintiff had found his wife's bag. She said no. Of course, there was no "wife" in sight. Plaintiff was then arrested even though she was taking the bag to the Visitor Center. She spent four hours in custody before the charge was dismissed.

Let's review what's going on here. In your typical "Lucky Bag" case, no one intended to break the law when they entered Central Park that day. But they see a bag lying around. Of course, they look inside to see if there's any money. Factually, no one commit a crime because the bag did not belong to anyone. But subjectively, they intended to do something improper. Still, there's something funny going on here. This is a set-up. I've watched enough Law and Order to know that someone can claim entrapment. There has been much scrutiny into Operation Lucky Bag over the last few years. This is because it sounds like the police are looking for something do.

Anyway, Schwartz can sue the police. The Court of Appeals (Jacobs, Lynch and Sack) says the jury may find that the police knew that plaintiff did not intend to run off with the bag. Schwartz took nothing out of the bag , and never opened it or looked inside. While she denied possession, "that reaction to what could have been a scam does not bespeak theft. In the scenario, created by the officers, a woman in possession of an apparently lost handbag refuses to turn it over to a stranger illegally riding a bicycle, who claims it belongs to his wife, with no apparent spouse in view." In addition, "Schwartz told the arresting officers that she planned to take the bag to the visitor center. Common sense and police experience confirm that a thief will often tell police that they intended to turn the bag over to the authorities. However, the officers failed to consider the honest alternative. Schwartz walked away from the bench in the direction of the Dairy Visitor Center, and was mere steps away from it. Based only on the plaintiff’s version of the facts, the officers had neither probable cause nor arguable probable cause."

Medical privacy breach was "under color of state law"

Four guys who worked for the New York City Fire Department held a grudge against one of their colleagues. According to the plaintiff, these guys accessed plaintiff's medical records from the FDNY system and leaked them to the Village Voice, damaging plaintiff's candidacy for public office. The Court of Appeals says the plaintiff can sue these fellas under Section 1983.

The case is Gleason v. Scoppetta, a summary order decided on May 19. Section 1983 is the civil rights law that allows you to enforce rights under the Constitution. In order to win under Section 1983, you have to show the defendants acted under "color of law." However, says the Court of Appeals (Pooler, Sack and Ramos [D.J.]), "not all acts performed by public employees are under color of state law: 'Acts of officers in the ambit of their personal pursuits are plainly excluded.' 'There is no bright line test for distinguishing personal pursuits from activities taken under color of law.'"

The defendants worked for the fire department. But the district court dismissed the case, ruling that the complaint did not plausibly show that defendants acted under color of state law. The Court of Appeals disagrees, stating "The FDNY is the entity that maintains Gleason’s medical information. That medical information was accessed by Grogan, Belnavis, Boles, and/or Reynolds by using 'a false login' to obtain files on a computer belonging to the Bureau of Fire Investigations, where Grogan was a Supervising Fire Marshal. One or more of those defendants then provided that medical information to a reporter who wrote an article in the Village Voice, which caused harm to Gleason, including by damaging his candidacy for the New York City Council."

According to the district court, "Defendants forwarded to the Village Voice records showing Gleason took frequent sick and disability leave from the FDNY. On August 19, 2009, the Voice published "District One Council Race: The Skinny on Pete Gleason," which characterized Gleason as a malingerer. Plaintiff blames the article for his loss at the polls and defendants for conspiring to violate his rights to free speech, due process, and privacy." The Court of Appeals says plaintiff can proceed against these guys for violating his privacy rights because they misused the authority that the City had granted them in that they had access to the medical files by virtue of their government employment. The fact that they did so out of a "personal grudge" doesn't matter. Nor does it matter that defendants did not screw over the plaintiff in the pursuit of their official firefighting duties. For now, the lawsuit plausibly states a claim, and plaintiff can now proceed to discovery.

Disruptive teacher protest not protected under First Amendment

To draw attention to the prolonged contract negotiations with their school district employers, teachers on Long Island staged a day-long protest by displaying picketing signs from their cars, parked where parents were dropping off their children. Because of the way the teacher-protesters had positioned themselves, the students had to be dropped off in the middle of the street instead of at curbside. The teachers were disciplined for this, and the case makes it way to the State Court of Appeals.

The case is Santer v. Board of Education of East Meadow School District, decided on May 6. The Court starts off by holding that the teachers did in fact engage in protected speech under the First Amendment. Peaceful picketing is expressive activity, and the teachers were advocating a matter of public concern, not simply their private grievances. But that does not end the analysis.

Public employees have speech rights, but those rights are balanced against the government employer's needs. If the speech is too disruptive, then the employer can discipline the employees. We call that Pickering balancing, named after a Supreme Court decision from 1968. The Court sums up its holding:

The interests the District asserts in this case are legitimate: ensuring the safety of its students and maintaining orderly operations at Woodland. The District argues that the evidence adduced at the hearings showed that the parking demonstration created dangerous traffic conditions in front of the school that could have injured a student and that caused actual disruption to the school's operations. This evidence, the District maintains, was sufficient to justify its discipline of petitioners, and it was not required to prove, as the Appellate Division decisions suggest, that a student was actually injured for the Pickering balance to tip in the District's favor. We agree.

The protesters parked their cars intending to block the student drop-off point. That created a risk to student safety. While the parking was entirely legal, that "does not outbalance the evidence of disruption."

Some interesting concurring and dissenting opinions. Judge Smith says it was not even free speech. He writes, "I am troubled by the implication that intentionally disruptive and dangerous conduct can, if it is designed for the purpose of calling attention to the actor's message, qualify for First Amendment protection." Judge Rivera (joined by Chief Justice Lippmann) says it was free speech but that Pickering balancing tips in the teachers' favor and that they should win the case. She writes:

The record shows that petitioners and the other teachers' cars were legally parked; any member of the public could lawfully park on Wenwood Drive during the same time and in the same spots where petitioners were parked. The curb cuts were open and clear for pedestrian crossing. As a matter of course, student drop-off occurs on both sides of Wenwood Drive, requiring students dropped off across the street from the school to negotiate traffic in crossing the street. The school administrators did not intervene to help students or request that the teachers move their cars at any time during the morning demonstration. Only several minutes after traffic congestion formed did the administrators call the police and then in order to assist with the traffic jam. Even after calling the police, administrators did not take action to reduce any obstruction to the students' drop-off. Nonetheless, no students were injured the morning of the demonstration.

State Court of Appeals strikes down Aggravated Harassment law

This is certainly one of the more unusual cases I've ever seen. The son of a prominent Dead Sea Scrolls scholar created bogus email addresses for purposes of impersonating other Dead Sea Scroll scholars. To satisfy his obsessive daddy complex, the fabricator, Raphael Golb, did this to discredit and hurt the reputations of these scholars. Golb was convicted of various crimes, including Aggravated Harassment. The State Court of Appeals sustains some of these convictions, but it does something that courts have threatened to do for years: it strikes down the Aggravated Harassment law as unconstutitional.

The case is People v. Golb, decided on May 13. The criminal impersonation convictions are upheld. While the scholars whom Golb tried to discredit did not lose any property, their reputations suffered. That's enough to violate the statute. Golb's forgery convictions are also sustained, for the most part. To me, though, the news is what happened to the Aggravated Harassment law.

A person is guilty of Aggravated Harassment in the Second Degree if, "with intent to harass, annoy, threaten or alarm another person, he or she ... communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm."

Take a good look at that language: "with intent to harass, annoy" or "alarm." That language has caused problems for years. State and federal courts have condemned this language as potentially punishing First Amendment speech. As federal judge Charles Brieant once wrote, the statute is "utterly repugnant to the First Amendment of the United States Constitution." The reason for this concern is that you can annoy and alarm people all day but not cause any real harm. Some courts said the statute should be interpreted to only prohibit actual threats or the clear and present danger of some harm. In essence, these courts were re-writing the statute to save it. So what you had was a hodge-podge of court rulings that police departments had to follow to ensure their arrests would hold up.

The Court of Appeals finally puts an end to the guesswork of what's legal and what's not under the Aggravated Harassment statute. "The statute criminalizes, in broad strokes, any communication that has the intent to annoy. 'No fair reading' of this statute's 'unqualified terms supports or even suggests the constitutionally necessary limitations on its scope.' ... 'We decline to incorporate such limitations into the statute by judicial construction' because that would be 'tantamount to wholesale revision of the Legislature's enactment, rather than prudent judicial construction.'"

Catch-22 shenanigans give developer a Takings claim

This case arises in Town of Chester, Orange County, where I have my office. So that makes it interesting to me. What makes it interesting to you is that the Second Circuit uses the case to shed light on what makes a constitutional Takings case ripe for judicial review.

The case is Sherman v. Town of Chester, decided on March 16. Judge Straub opens the decision by summarizing what happened in the novel Catch-22, where the fighter pilot thinks he can return to civilian life before some sadistic Colonel keeps revising the requirements, forcing "Hungry Joe" to fly more missions. Sherman probably felt like the guy on Catch-22. He bought property in the town to build an elaborate development, but the town hit him with red tape, enacting a new zoning ordinance that required him to draft a new plan. The town then enacted new zoning rules again and again each year. The town kept raising other hurdles as well, i.e., announcing a moratorium on development, requiring Sherman to submit study after study and making pay more and more in consulting fees. He eventually sued under the Takings Clause without obtaining a final decision from the town on his development proposal.

Cases are ripe when the plaintiff has done all he could in the town or administrative process. Usually that means you get a final decision from the locals before you challenge it in court. The idea is that the experts get a chance to weigh in on the proposal before generalists in the court decide if they acted legally. In Takings claims, we normally require the plaintiff to exhaust all local and administrative remedies, i.e., it must issue a final decision. But that requirement clashes with the rule that exhaustion is not required when it would be futile. Judge Straub has fun with this decision, stating,

The Town will likely never put up a brick wall in between Sherman and the finish line. Rather, the finish line will always be moved just one step away until Sherman collapses. In essence, the Town engaged in a war of attrition with Sherman. Over ten years, Sherman was forced to spend over $5.5 million on top of the original $2.7 million purchase. As a result, he became financially exhausted to the point of facing foreclosure and possible personal bankruptcy. 

It would be futile -- a waste of time -- for Sherman to seek a final decision from the town. The application process would last forever. This means his case is ripe for judicial review.

Sherman also has a Takings case on the merits. The town effectively prevented him from making any economic use of his property. The town also interfered with plaintiff's reasonable financial expectations, as the property was zoned for residential use when he bought the property. And the town's behavior suffocated Sherman with red tape to prevent him from succeeding on his development. "The Town's conduct was unfair, unreasonable and in bad faith," the Second Circuit says.