Botched SWAT raid produces pro-plaintiff qualified immunity ruling

This case involves a SWAT raid gone awry, or as the Court of Appeals puts it, a "botched" SWAT raid. The victims of this raid sued the police. The district court allowed some of the claims to proceed to trial, but defendants take up an immediate appeal. For the most part, the Court of Appeals rejects defendants' arguments and says the case must proceed to trial

The case is Terebesi v. Torreso, decided on August 21. The police got a search warrant for Terebesi's home after they had reason to believe he had stashed away a small amount of drugs. The SWAT team ram-jammed their way into the house, using stun-grenades. The raid did not go quite as planned. An occupant of the house was accidentally killed, and the stun-grenades started a fire in the house. The police found a small amount of crack cocaine, but no weapons were found.

Plaintiff sues for excessive force. Since this claim arises from Section 1983 (the federal civil rights statute), the police officers can get off the hook on qualified immunity grounds. This immunity gives the police the benefit of the doubt if they acted objectively reasonably at the time of the incident or if the law at the time was not clearly-established. The Second Circuit (Sack, Chin and Droney) provides a tutorial on qualified immunity in explaining why the case can go to trial.

First, there is no clearly-established right under the Fourth Amendment to be free from a tactical SWAT raid to execute a search warrant. If the cases are not clear in this area, the Court will not expect the police to be legal scholars and anticipate future court rulings that might frown upon the practice. That is what law professors are for. So that claim dies.

The other claims survive, however. The Court says the case law has held over the years that officers who authorize or direct a raid that employs the use of force to effect a search or seizure must comply with Fourth Amendment standards. This clearly-established body of law puts the officers on notice that they could be sued for a bad raid plan that violates the Constitution.

As for the stun-grenades (which can cause fires and "detonate with a blinding flash of light and deafening explosion ... to temporarily stun people in a targeted building" until law enforcement can get inside), the Court says that "the principles governing police use of force [as set forth by Supreme Court precedent) must be applied to claims challenging the use of the distraction device when executing a search warrant." The use of all sorts of police weaponry can violate clearly-established law even if no case in particular address a particular weapon. As the Court reminds us, you do not need a case that is precisely on point to show that the law governing that activity violates clearly-established law. Since this was not a high-risk search -- but a more routine one -- involving a search for a small amount of drugs that the occupant had for personal use, the jury must decide whether the use of the stun-grenades was reasonable at the time, particularly since the officers had no reason to know that plaintiff had a propensity toward violence.

Qualified immunity is also denied on other claims,including whether it was reasonable for the officers to enter the house without knocking and announcing. The jury must decide whether this tactic was reasonable in light of evidence that defendants knew the drugs were for the plaintiff's personal use and that he was not guilty of any violent or grave offense.

If you handle Section 1983 cases, this is the case for you. Enjoy the thorough summary of qualified immunity principles and some new language on police techniques that can give rise to litigation. One small point of interest to qualified immunity junkies is the Court's observation that clearly-established law can be determined by reviewing not just Supreme Court and Second Circuit cases but also rulings from other federal appellate courts.

  

$250,000 in damages for malicious prosecution victim

In this malicious prosecution case, an LIRR employee won her case against a co-worker who had falsely accused her of grabbing her breast. The jury awarded plaintiff $480,000 in damages. The Second Circuit sustains the liability finding but reduces the damages to $250.000.

The case is Stamf v. Trigg, decided on July 30. Trigg says Stamf "reached her hand into my car window and grabbed my left breast and shook it." Trigg reported this incident, causing plaintiff's arrest. She was given a Desk Appearance Ticket (DAT) and sat in a jail cell for four hours. She also paid a lawyer $25,000 to get the charges dismissed. In the end, the DA decided not to proceed against Stampf.

This case raises a series of issues: whether Stampf actually had a case against Trigg and whether the jury awarded plaintiff too much money. The answers are Yes and Yes.

First, liability. To win a malicious prosecution case, you have to show that false charges were initiated against you. The issue here is whether the DAT qualifies as something that initiates a case against plaintiff. Remember, the DA did not bring formal charges. The courts are not clear on this issue. In 1979, the Second Circuit said that a DAT initiates the process for purposes of a malicious prosecution case. But state courts over the years have reached different holdings on this issue. After deep thought (it took nearly two years for the Court of Appeals to issue this ruling), the Second Circuit (Leval Katzmann and Livingston) reaffirms that a DAT is enough to predicate a malicious prosecution claim.

The proceeding also terminated in plaintiff's favor. Defendant argues that the prosecution had the option of filing charges against Stampf at a later point, which means that her innocence is in doubt, which would prevent her from suing for malicious prosecution. The Second Circuit will not go that far, reasoning:

If the law were as Trigg argues, it would mean that malicious prosecution claims often could not be brought in the cases where the accusations had the least substance. The cases that most lack substance are most likely to be abandoned by the prosecution without pursuing them to judgment. On Trigg’s view, the most unjustified accusations might thus be the most likely to be shielded from malicious prosecution claims. We believe that, under New York law, a declination as received by Stampf suffices to establish termination in the plaintiff’s favor notwithstanding that the prosecutor is theoretically capable of resurrecting the prosecution.

The Court of Appeals does reduce the damages award. The jury gave Stampf the following: $200,000 for past pain and suffering, $100,000 for future pain and suffering and $150,000 in punitive damages. Jurors don't know that their damages awards are like advisory verdicts, and that the courts carefully evaluate them post-trial and on appeal to ensure they are not too high. Reviewing awards in similar cases and looking at the harm that plaintiff actually suffered as a result of the false prosecution initiated by Trigg, the Court of Appeals says that Stampf should only get as follows: $100,000 for past emotional distress, $20,000 for future emotional distress and $100,000 in punitive damages, for a total of $250,000 (including $30,000 in economic damages).

Occupy Wall Street protesters can proceed with false arrest lawsuit

This case arises from the Occupy Wall Street movement, which sprouted in 2011 in New York City. On October 1, 2011, the protesters marched across the Brooklyn Bridge. They allege that the police allowed them to do this and even led them onto the bridge. The police initially did not prevent the protesters from walking along the roadway. While some officers eventually told the protesters to get on the sidewalk, few protesters heard this command. They were then arrested for disorderly conduct. The plaintiffs sue for false arrest.

The case is Garcia v. Doe, decided on August 21. The crux of the complaint is that "'[p]rior to terminating the march when it was mid‐way across the bridge, the police did not convey that they were going to revoke the actual and apparent permission of the march to proceed,' and that the officers therefore did not have probable cause to arrest them for disorderly conduct." The officers seek qualified immunity, arguing that "an objectively reasonable police officer would not have understood that the presence of police officers on the Bridge constituted implicit permission to the demonstrators to be on the Bridge roadway in contravention of the law." The Court of Appeals (Calabresi, Lynch and Livingston [dissenting]) disagrees, and the lawsuit can proceed.

The Supreme Court held in 1965 that "when officials grant permission to demonstrate in a certain way, then seek to revoke that permission and arrest demonstrators, they must first give 'fair warning.'” The officers try to get around this by arguing that they sanctioned the bridge march so long as the protesters remained on the sidewalk, and that once the protesters spilled into the roadway, they were fair game for arrest; without an implicit invitation to walk along the road, the protesters got what they deserved when the officers arrested them.

The officers may have a legitimate defense to this case, the Second Circuit says, but this case comes before the Court on a Rule 12 motion, where the Court only asks whether the plaintiffs state a claim. We have not had depositions yet, only the allegations in the Complaint and some video footage. The allegations in the Complaint do not concretely support the officers' defense. As Judge Lynch writes, "defendants’ assertions of what the officers understood are unsupported by the Complaint or the record, which do not provide any details as to what any individual defendant knew or saw of the events leading up to the arrests." While the Court wonders if plaintiffs can win this case on liability or avoid qualified immunity later on, it is too early to know if the officers are entitled to dismissal.

Judge Livingston files a lengthy dissent that challenges the majority ruling at every turn. It's all about qualified immunity and false arrest and when to let the police out of the case even if, in hindsight, they broke the law. Qualified immunity continues to be a subject of great debate among judges, with many emphasizing that this immunity allows the police and other public officials to do their jobs without the fear of crippling lawsuits. This debate exposes the liberal-conservative judicial divide. I would guess this case is a good candidate for full court, or en banc, review.

Court of Appeals reinstates sexual harassment case (with some interesting evidentiary twists)

The Court of Appeals has reversed summary judgment in a sexual harassment case because a male supervisor could not control himself and the female subordinate had the wherewithal to hire a lawyer. In this case, the Second Circuit says that some non-sexual harassment can determine whether the work environment as a whole created a hostile work environment.

The case is Moll v. Telesector Resources Group, decided on July 24. The evidence of harassment is quite brief. The supervisor left plaintiff three inappropriate notes in 1998 and 1999. He also summoned her to his hotel room on a business trip and said he thought of her while he was taking a shower. He also insisted that she see him in person at work and not communicate with him by email or phone. The supervisor then denied her certain promotions and denied her opportunities to work from home and take vacation even though male counterparts were able to do these things.

The district court dismissed the hostile work environment case, saying there was not enough sexual harassment within the statute of limitations. The Court of Appeals (Walker, Cabranes and Parker) reinstates the claim. "Moll’s Complaint includes both sexually overt and facially sex-neutral incidents to allege a sex-based hostile work environment. The district court should have considered all incidents in their totality—including sex-neutral incidents—before it dismissed Moll’s hostile work environment claims for failure to allege an actionable incident within the applicable statute of limitations."

This case also includes some interesting discovery and evidentiary rulings. Plaintiff was denied certain discovery. The Court of Appeals normally does not like to second-guess the district court's discovery rulings, but it does so here.

First, plaintiff challenges the fairness of a reduction-in-force that resulted in her retaliatory termination. That claim was dismissed on summary judgment. She presses these issues on appeal. The district court said plaintiff has no right to review RIF records from the company's four upstate NY offices involving "similar or distinct" RIF's that preceded or followed the RIF that led to her termination. But the Court of Appeals says plaintiff is entitled to evidence of "company-wide practices that may reveal patterns of discrimination against a group of employees, increasing the likelihood that an employer's offered explanation for an employment decision regarding a particular individual masks a discriminatory motive." This evidence might help plaintiff avoid summary judgment, which the district court granted.

Second, the Court takes up an issue that I have not previously seen. Normally, when a plaintiff opposes a summary judgment motion, he cannot submit an affidavit on that motion that contradicts his sworn deposition testimony. The reason for this is clear: faced with possible dismissal of the case, some plaintiffs will say anything, even if it contradicts prior testimony. This is called the "sham issue of fact doctrine." In this case, a non-party witness submitted an affidavit that says plaintiff was fired in retaliation for her protected Title VII activity. This witness said the opposite in deposition, when he still worked for the company as a supervisor. The Circuit reasons:

Here, ... Gaglione was not a party to the action, nor did he have a familial or other close relationship with the plaintiff that suggests Moll could influence Gaglione’s testimony. Moreover, there is nothing in the record to suggest that Gaglione submitted the declaration solely to create a genuine issue of fact. Therefore the district court was not required to disregard Gaglione’s second sworn statement.

 ...

Apart from not being a party to the action, Gaglione was not an expert nor was he retained in any way by the plaintiff. Nor are we convinced that his affidavit 'inescapably and unequivocally' contradicted his earlier testimony without explanation. To the contrary, there is a readily apparent, plausible explanation for any inconsistency in his testimony: At the time of his earlier deposition Gaglione was employed by Verizon; when he provided his subsequent declaration Verizon had terminated him. The fact that the later declaration was more favorable to Moll could be explained in one of two ways: either he felt inhibited at the time of the first  deposition from portraying his employer in a bad light, or when he issued his later declaration he wanted to get even with Verizon for terminating him. Gaglione states in his later declaration that he "regret[s] that [he] failed to do more to complain about the retaliatory nature of the plan" because he "was more concerned about losing [his] job." It seems to us that the veracity of the witness in these circumstances presents a quintessential question of fact for the fact-finder.

I would imagine that Gaglione will be ripped apart on cross examination over this contradiction if the case goes to trial. But this revised affidavit also has potential to blow the case out of the water. 

Connecticut due process issue prompts judicial in-fighting

This case is unique to Connecticut, but it still raises a due process issue that the rest of us might appreciate. The plaintiff is a tenured culinary arts teacher who did not receive notice or a hearing before the school district reduced her hours and salary. Since she was not "terminated" under Connecticut law, she does not have a due process claim.

The case is Mirabilio v. Regional School District No. 16, decided on July 30. Under Connecticut law, prior to "terminating" a tenured teacher's contract, the teacher gets notice and a hearing. In other words, due process, enshrined in the Fourteenth Amendment. Connecticut courts have held that this protection "does not apply to plaintiffs whose positions were being eliminated but whose employment with the board continued." The Second Circuit (Jacobs and Livingston) adds, 'an employee reassigned to a paying position is not considered 'terminated' for purposes of the statute even fi the pay cut is 'substantial.'" This means that plaintiff was not deprived of her right to continued employment and therefore does not get notice or a hearing to challenge the personnel action.

Judge Calabresi dissents, accusing the majority of judicial activism, prompting a response from Judge Jacobs. He says the Court of Appeals should certify this issue to the Connecticut Supreme Court for a definitive state law ruling on whether plaintiff's position "terminated," triggering the due process protections. As Judge Calabresi sees it, this issue is not settled in Connecticut, which means the Second Circuit has no business ruling on it without guidance from the Connecticut Supreme Court. He writes:

Judicial activism comes in many forms. One of the most unjustified is when a federal court, for no good reason, reaches out and answers an undetermined question of state law.1 Doing this, rather than certifying the question to the state’s highest court, impedes the state from determining the course of its own law, and subjects the parties to a decision that may be wrong and cannot subsequently be corrected even if later the state has an opportunity to make its law clear. This is especially unfortunate when the party against whom the federal court rules had sought a judgment in state court, presumably because that party believed state law to be in her favor; the other party had exercised its right to remove the case to federal court; and the party seeking a state law ruling followed this with a request for certification. These are precisely the circumstances in the case before us.

In an interesting footnote, Judge Calabresi notes that, shortly after he became an appellate judge in the 1990s, the Court of Appeals was unable to correct one of its rulings that the State Court of Appeals had resolved differently in another case. In DeWeerth v. Baldinger, 8365 F.2d 103 (2d Cir. 1987), the Second Circuit resolved an issue of New York law on its own. When the State Court of Appeals decided the same issue differently four years later, "the party against whom we had ruled in DeWeerth brought a motion before us to recall our mandate and vacate the judgment. Since we concluded that we lacked the authority to do so because the district court had resumed jurisdiction, we denied the motion without opinion on May 17, 1991. And when the district court found that relief was due to the party we ruled against pursuant to Federal Rules of Civil Procedure 60(b)(5) and (6), we reversed it, finding that awarding relief was beyond its discretion. In short, our error in interpreting New York law was one we were unable to remedy."

Entry-level accounts are not entitled to overtime pay under FLSA

The Fair Labor Standards Act entitles you to overtime if you work more than 40 hours per week. There are many exceptions, though, including one for people employed "in a bona fide ... professional capacity." Professionals can work late into the evening and all weekend long and not get overtime. The question raised in this case is whether certain entry-level accounts are entitled to overtime.

The case is Pippins v. KPMG, LLP, decided on July 22. Under the regulations, "learned professionals" don't get overtime. "To qualify for the 'learned professionals' exemption, 'an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.'”

The learned professionals exemption has three elements: "the work must be (1) 'predominantly intellectual in character, and . . . requir[e] the consistent exercise of discretion and judgment,' (2) in a 'field of science or learning,' which includes accounting; and (3) of a type where 'specialized academic training is a standard prerequisite for entrance into the profession.'" Since the plaintiffs worked in the field of accounting, the second element disfavors their position in this case. What about elements 1 and 3? The Court of Appeals (Leval, Calabresi and Lynch) says those elements also work against the plaintiffs, and they lose this overtime case.

First, while plaintiffs argue that they do not exercise advanced judgment in performing their duties and that their work is merely routine, the Court of Appeals sees it differently: "learned professionals ... particularly those working for firms that provide professional services to other businesses, need not exercise management authority to operate as professionals; what matters is whether they exercise intellectual judgment within the domain of their particular exercise." Framed that way, plaintiffs lose on this issue. Reviewing other Circuit court rulings for guidance, the Second Circuit concludes that "the learned professions exemption applies if workers rely on advanced knowledge of their specialty to exercise discretion and judgment that is characteristic of their field of intellectual endeavor."

The rest of the decision falls in line with the Court's understanding that accountants, even entry-level ones, fall within the overtime exception. They exercise discretion and professional judgment in performing their work. While plaintiffs claim their work is routine, with heavy emphasis on guidelines and templates and extensive supervision, the Court finds they still exercise judgment and rely on advanced knowledge of accountancy. The Court further explains,

Plaintiffs’ fundamental error is to confuse being an entry‐level member of a profession with not being a professional at all. Audit Associates are the most junior members of the team, and it is hardly surprising that they do not make high‐level decisions central to KPMG’s business. Yet unlike the administrative worker or executive exemptions to the FLSA, the learned profession exemption does not require that the professional reach conclusions that guide or alter the course of business. The critical question is whether the workers act in a manner that reflects knowledge and requires judgments characteristic of a worker practicing that particular profession. Here, by testing controls, performing inventory reviews, and ultimately replicating the audit process in each work paper, Audit Associates clearly did so by engaging with the audit process in a critical manner.

Finally, plaintiffs lose because they require a prolonged course of specialized intellectual instruction. Since the Court finds that the accountants exercise judgment and discretion in performing their work, the only way their can further show they are not "learned professionals" is if they "gain the necessary knowledge to act as accountants through a one-week introductory training course, followed by on-the-job training." But that won't fly. "An examination of the training materials in the record makes sufficiently plain that the average classics or biochemistry major could not understand the materials, or develop the requisite understanding of the audit function, on the basis of a brief training period."

No Title VII retaliation where employer investigates false EEOC charge

In this Title VII retaliation case, the Court of Appeals takes on a weird fact pattern: the plaintiffs filed an EEOC charge alleging racial discrimination, and the employer then conducted a departmental investigation because of the EEOC charge. It sounds like retaliation, but it's not.

The case is Cox v. Onondaga County Sheriff's Department, decided on July 23. The plaintiffs are white law enforcement officers who shaved their heads in solidarity with a cancer patient. The plaintiffs filed an internal complaint of racial harassment after rumors circulated in the department that they were racist skinheads. While black officers approached the bald white officers, the plaintiff did not allege in the internal complaint that the black officers were confrontational. Later on, the plaintiffs filed charges of discrimination with the EEOC. In these sworn charges, they did allege that a black officer was confrontational with them.

This lawsuit does not stem directly from that EEOC charge. Rather, plaintiffs claim retaliation under Title VII because management investigated them because of the discrepancy between the internal discrimination charge which did not allege confrontation and the EEOC charge which suggested that a black officer, Willis, gave them a hard time over being skinheads. The department investigated plaintiffs for allegedly filing a false report with the EEOC.

Normally, an employer who goes after an employee in connection with an EEOC charge would be guilty of retaliation. But this case is more complicated, which is why it took the Second Circuit (Winter, Chin and Droney) more than a year to issue a decision. The employer was justified in investigating the discrepancy between the internal harassment complaint and the more provocative EEOC charge arising from the same event. Title VII does not confer an absolute privilege immunizing the conscious filing of a false EEOC charge. While the Circuit courts and even some district courts in the Second Circuit have offered different views on whether such an investigation creates a prima facie case, the Second Circuit holds that "once the plaintiff has proffered sufficient evidence that a threat of discipline triggered by a claim of discrimination was made, a prima facie case of retaliation will usually have been established."

The existence of a prima facie case does not mean the plaintiffs can win the case. If the employer has a solid justification for investigating the plaintiffs, then the employer wins. The Second Circuit says the employer is entitled to summary judgment. The Court says the EEOC charge was "false, and seemingly intentionally so" in alleging that a particular black officer confronted the plaintiffs about being skinheads. In the context of existing racial tension in the department, an allegation like this could constitute racial harassment against the black officer. And, the Court says, "law enforcement officials are required to file reports accurately. The Department, therefore, has a greater interest in disciplining officers who do not take that obligation seriously than do most employers." In light of this, the case is dismissed.

2d Cir. affirms large sanctions award in civil rights case

The Court of Appeals has sustained a rare sanctions award against a plaintiff for pursuing a frivolous civil rights case against Nassau County.

The case is Carter v. Village of Ocean Beach, decided on July 21. The plaintiffs are police officers who worked for the Village. They filed suit in federal court against a variety of defendants on a variety of claims, including First Amendment retaliation, Equal Protection and state Labor Law and Civil Service Law violations. On the eve of trial, plaintiffs withdrew a variety of claims, leaving only claims under the First Amendment, the Due Process Clause and state law. Before trial started, the district court dismissed the federal claims on summary judgment, and the state law claims went to state court, which dismissed the claims at the pleadings stage.

The County defendants then moved for sanctions, claiming that plaintiffs had no right to sue them. Sanctions are rarely awarded against plaintiffs, but the district court agreed with the County and awarded more than $60,000 in sanctions under Section 1988. Plaintiffs had no business suing the County defendants, who did not employ plaintiffs and did not take any adverse action against them. Plaintiffs tried to connect the County with their misfortune by arguing that a civil service analyst, Sanchez, said and did bad things to them when they complained that the Police Chief was not properly certified under Civil Service Law. As the Court of Appeals (Jacobs, Calabresi and Livingston) sees it:

Allegations against all four County Defendants center on Sanchez. But the factual allegations regarding her role are immaterial to Plaintiffs’ legal theories: After Plaintiffs had already been terminated by the Village Defendants, Sanchez allegedly (1) listened to Plaintiffs’ complaints, defended Hesse, and told him about the conversation; and (2) posted on an Internet board, without naming anyone, that the posts complaining about Hesse were “revenge posting” and “crap.” This is not the stuff of litigation. All of Plaintiffs’ claims center around two basic wrongs, improper termination and (to a lesser degree) defamation; Sanchez had no meaningful role in either.

For you civil procedure junkies, there is an interesting holding in this case. Plaintiffs argued that the County was not entitled to sanctions because they voluntarily dismissed frivolous claims and the County therefore was not a prevailing party on those claims and was thus not entitled to sanctions. Their argument relies on a Second Circuit ruling from 1980 that no longer seems to be good law, silently overturned by other federal Circuits and the Supreme Court. In 2000, the Supreme Court said in Buckhannon v. West Virginia that a judgment is necessary to win attorneys' fees. The defendants here got that judgment when plaintiffs voluntarily withdrew their claims with prejudice, which constitutes "an adjudication on the merits." While Buckhannon did not say that in the context of sanctions under Section 1988, the Court of Appeals applies it in this context.

Muslim inmate has First Amendment claim in urine-testing dispute

If the rights of inmates were put up for a majority vote, the American public would probably say that if you are guilty of a crime, you have no religious freedoms left. Inmates do have religious freedom, though, under statutory and constitutional law, which is why a Muslim inmate prevails on his claim that prison officials violated his religious rights in the course of a drug testing procedure.

The case is Holland v. Goord,decided on July 10. Holland is a practicing Muslim who is serving time in prison. Under a drug-testing procedure, Holland had to provide a urine sample within a three-hour window. But since Holland was fasting during Ramadan, he could not comply with the order or drink water to facilitate the process. He offered to do all this after sunset, when Ramadan ended, but the jail refused that accommodation, and Holland was therefore sent to keeplock for 77 days as punishment. The district court threw out the case, but the Court of Appeals (Jacobs, Calabresi and Livingston) reinstates it.

The Second Circuit revives the claim under the First Amendment's Free Exercise Clause. "Ordering Holland to provide a urine sample -- and drink water in violation of his fast -- or face confinement in keeplock substantially burdened Holland's free exercise right." A core tenet of Holland's religion is that he cannot ingest food or water during Ramadan. And, since Holland could not drink water, he was unable to discharge any urine. While the state argued in the district court that "it is common knowledge that people that do not eat or drink for a day are still able to produce urine," the state does not advance that argument on appeal.

Since Holland has shown that the hard-and-fast three-hour window substantially burdens his religious practices, to win the case, the state has to show that its policy is "reasonably related to legitimate penological interests," a lenient standard adopted by the Supreme Court many moons ago. The Court of Appeals leaves this question for the district court to resolve, though the Second Circuit has its doubts about whether the state can win this, since the jail superintendent at some point decided that the urinalysis could have taken place after sunset and the policy was later amended to accommodate Muslim inmates who fast during Ramadan.  

Atheists lose religious challenge to Ground Zero Museum cross

During the clean-up at Ground Zero in 2001, somebody discovered a 17-foot high column and cross-beam that looked like a Latin cross. That artifact is now displayed at the National September 11 museum as The Cross at Ground Zero. That Cross is now the subject of a constitutional challenge by a national atheist group.

The case is American Atheists, Inc. v. Port Authority of New York and New Jersey, decided on July 28. I don't know how the American public would react if the Atheists won this lawsuit, but the Court of Appeals (Raggi, Lynch and Chin) reject their challenge and find that the Museum is not required to post a statement that says that atheists also helped to clean up Ground Zero. This is what the Cross looked like after the attacks:

The First Amendment includes the Establishment Clause, which prohibits any government establishment of religion. Most of us know the Clause as the source of the "separation of church and state" doctrine. Government action violates the Clause if favors one religion over another or even religion generally over non-religion. The government action must also have a secular purpose, neither advance nor inhibit religion nor excessively entangle itself with religion. There are no easy answers to an Establishment Clause problem. The case law creates too many moving parts to predict the outcome. Here is how the Court of Appeals summarizes the plaintiffs' claims:

American Atheists contend that the Port Authority and the Foundation impermissibly promote Christianity in violation of the Establishment Clause and deny atheists equal protection of the laws by displaying The Cross at Ground Zero in the Museum unaccompanied by some item acknowledging that atheists were among the victims and rescuers on September 11.

Certainly the Latin Cross found at Ground Zero looks religious. But as a matter of constitutional law, it does not violate the Establishment Clause. It was not placed in the Museum for religions purposes. It was instead placed there "to recount the history of the terrorists attacks of September 11, 2001, and their aftermath." Recall that finding this artifact at Ground Zero had great meaning for the cleanup workers. The Court of Appeals says, "American Atheists point to no precedent holding that when a religious symbol or artifact with genuine historical significance is included in a public historical display, the actual purpose is necessarily religious promotion." A great deal of what our culture celebrates "is saturated with religious influences." Moreover, at the Museum, the textual panel that accompanies the Cross "is plainly historical rather than theological in recounting the facts of discovery and subsequent use by '[i]ndividuals of many faiths and belief systems . . . as a symbol of hope, faith, and healing.'”

A similar analysis governs whether the Museum features the Cross for secular or religious reasons. An objective observer who is familiar with the whole story would perceive this as a non-religious display, i.e., one that accurately depicts the Ground Zero cleanup.

What about the fact that the Museum display does not explicitly say that atheists helped at the Ground Zero cleanup? I know of no case that says the Atheists should win on this basis, and the Court of Appeals does not know of any, either. As Judge Raggi writes:

The observer would know that the absence of any reference to “atheists” in the Museum’s “Finding Meaning” exhibition derives from the fact that, as American Atheists themselves acknowledge, there is no artifact showing a particular way that atheists, as distinguished from persons generally, tried to find meaning in the events of September 11. Insofar as American Atheists propose a plaque that would acknowledge that atheists were among the victims and rescuers on September 11, an objective observer would know both that such a plaque was not an “artifact,” and that it did not speak to the point of the exhibition section, i.e., how people found meaning at Ground Zero. He would further know that every victim of the September 11 and 1993 attacks is identified by name on the Memorial plaques without regard to religious affiliation, and depicted both visually and textually in the Museum’s commemorative display.

"Ill-advised" comments by trial judge does not entitle losing plaintiff to a new trial

Taking a case to trial is always a challenge. Get your witnesses and exhibits together. Get your direct and cross examinations together. Draft proposed jury instructions. Prepare for evidentiary objections. And worry about the trial judge.

The case is Henderson v. City of New York, a summary order decided on July 1. This police misconduct case went to trial. The plaintiff lost, and takes up an appeal, arguing that the judge denied him a fair trial because of his conduct on the bench in front of the jury.

The Court of Appeals (Calabresi, Chin and Lohier) says that "Henderson contends that the district court denied him a fair trial by: repeatedly taking over the questioning of witnesses; eliciting testimony that supported the defendantʹs arguments; affirming the testimony of defense witnesses as true; and mocking and chastising his counsel in the juryʹs presence."

In a footnote, the Court of Appeals gives us a taste of what happened in trial: "For instance, in the juryʹs presence, the district court asked Hendersonʹs counsel why he was 'afraid' to directly ask former Commissioner Raymond Kelly why it took so long to reinstate Henderson to full duty: 'Why donʹt you just ask him why did it take so long, I will let you ask that question if he knows the answer. Are you afraid to ask that question for some reason? Do it.'"

The judge told the jury during trial that it should not hold it against plaintiff's lawyer that he "was tough" on him. He told the jury that he was simply trying to manage the trial. This kind of curative instruction can protect the trial court when the losing party takes up an appeal and places the judge's behavior under a microscope. While it says there were "a few perhaps ill-advised comments" by the trial court, the Court of Appeals says the judge's behavior was not enough to grant a new trial. "While the district court was an active participant in the trial, we are not persuaded that it overstepped its bounds to the extent that Henderson was denied a fair trial. The district courtʹs frequent interventions to pose questions to witnesses were, as a whole, attempts to clarify factual issues for the jury or to move counsel along."

Jury can infer racial discrimination where plaintiff was not a "good fit" for postiion

I would say that proving racial discrimination in employment is one of the hardest things to accomplish in law. You have to show that a decisionmaker took race into account in firing or refusing to hire someone. That would brand the decisionmaker with a scarlet letter. Judges and juries are therefore skeptical of these claims. But you can still win, even if the evidence is subtle.

The case is Abrans v. Department of Public Safety, decided on July 14. Abrams worked in law enforcement. He was denied a transfer to the Major Crimes Van. His racial discrimination claim arising from the Van denial was dismissed on summary judgment. The Court of Appeals (Walker, Pooler and Wesley) reinstates it.

From 2004 through 2009, all eight detectives who were chosen to work on the Van were white. The Court of Appeals notes that "Abrams had more training and seniority than each of the detectives selected above him." While Abrams was recommended for the Van position in 2007, a superior officer denied him that promotion because another applicant was a "better fit." for the position. This was not the first time that "better fit" factored into plaintiff's promotion denial. At some point between 2000 and 2004, someone said that Abrams "did not fit in" for the Van position.

The primary issue on appeal is whether Abrams was denied the Van assignment for discriminatory reasons. The Court of Appeals says this is a close case, but that the jury can find in plaintiff's favor. The "fit in" comment can have racial connotations. The Fifth Circuit in 2004 said that a "fit in" comment is "at least as consistent with discriminatory intent as it is with nondiscriminatory intent: The employer just might have found the candidate 'not sufficiently suited' because of a protected trait such as age, race, or engaging in a protected activity." So, while some cases hold the plaintiff to a higher standard in promotion denial cases when management says that someone else was simply better qualified for the position (see, Byrnie v. Town of Cromwell, 243 F.3d 93 (2d Cir. 2001)), this case is different because the "fit in" comments suggest that something else -- race -- as opposed to mere qualification was going on here.

This is the second recent decision by the Court of Appeals holding that the jury may interpret subtle racial comments against the employer. On July 25, the Second Circuit held that a plaintiff who was fired could prevail under Title VII because, referring to the plaintiff's relationship with his black subordinates, his supervisor said "they don't know how to police each other." The supervisor also said "[the regional office] could lighten up a bit."