Getting SLAPP-ed around in the 2d Circuit

This case started as a dispute among neighbors in Vermont. It winds up in the U.S. Court of Appeals because someone publicly insulted the plaintiffs, who sued for defamation and other torts, and the defendants responded with a motion to strike the claims under Vermont's anti-SLAPP law, which stands for strategic lawsuits against public participation.

The case is Ernst v. Carrigan, decided on February 22. I like gossip and petty grievances as much as the next guy. If you like that as well, you won't find it here. The appeal does not concern which side is a scam artist or a liar. It concerns whether the Second Circuit (Jacobs, Leval and Lynch) has jurisdiction to even hear the appeal.

The district court struck some of the plaintiffs' claims under the anti-SLAPP law, but other claims remained. The defendants appeal, arguing that all the claims against them should be dismissed under the anti-SLAPP law, and plaintiffs appeal as well, arguing that none of their claims should have been dismissed. Under the federal rules, you cannot appeal a district court's order unless the entire case is resolved one way or the other. There are exceptions to this rule, such as when the ruling resolves an important issue completely separate from the merits of the action. But if the order being appealed is too intertwined with the issues that remain in the district court, the order is not immediately appealable.

Claims involving the anti-SLAPP law in Vermont are not immediately appealable, because the claims are too entangled in the remaining claims for defamation. Indeed, the anti-SLAPP claim grows out of the defamation claim. In 2003, the Ninth Circuit reached the opposite holding in this context for claims involving anti-SLAPP motion, but the Second Circuit follows Supreme Court authority that it says points in the opposite direction.What it all means is that this neighborly brawl is sent back to the district court in Vermont for the trial judge to worry about it.

The Nassau County strip search case lives on

In 1999, the Eastern District of New York ruled (and the Second Circuit agreed) that the Nassau County strip search policy for its County jails violated the U.S. Constitution because the policy included searching people with misdemeanors without reason to believe the inmates had weapons. Years later, another lawsuit was brought against Nassau County because it was continuing to search people that way. Then the U.S. Supreme Court in 2012 ruled that the U.S. Constitution allows county jails to strip search all incoming inmates. So how does that Supreme Court ruling affect the second Nassau County strip search case?

The case is In Re Nassau County Strip Search Cases, a summary order decided on February 26. After the Supreme Court's 2012 ruling in Florence, Nassau County asked the district court to dismiss the case as to both plaintiffs' federal and state claims challenging the Jail's strip search policy. The reasoning was that the law has changed and that the Nassau County strip search case is no longer viable. The Court of Appeals says the County is correct as to the plaintiffs' federal law claims, but not the state law claims.

The Second Circuit (Cabranes, Pooler and Chin) says Florence does in fact repudiate the Second Circuit's 1999 ruling in Shane v. Ellison, which had placed strict limits on whether county jails could strip-search incoming inmates. Plaintiffs in this case have a first-class legal team that offered a variety of arguments to the effect that Florence does not affect Shain, but the Court of Appeals rejects those arguments, holding instead that Florence broadly allows jail officials to conduct these strip-searches, and that exceptions to that rule are narrow and inapplicable in this case.

But Florence does not affect plaintiffs' state law claims challenging the strip searches. Florence interpreted the U.S. Constitution, not the New York State Constitution. As the Second Circuit writes, "We fail to see how a Supreme Court decision interpreting any federal constitutional provision could ever control the meaning of an analogous state constitutional provision, at least absent extraordinary circumstances not present here." Rather, the Court says, state courts often interpreted state constitutional provisions more broadly than comparable federal constitutional provisions. As the district court noted in this case, "How New York courts will decide a case factually analogous to the one at bar under [the state Constitution] remains to be seen. That they might not adopt the Florence rationale is certainly well within the realm of possibility." This means that the current Nassau County strip search case will proceed.

This is why lawyers drink

The general rule is that clients have the final say over whether to settle a case. But lawyers are presumed to act on behalf of the client. So if the lawyer signs off on a settlement and the client says she did not authorize that settlement, the client bears the burden of proving that the settlement was not authorized. In this case, the action settled but the client then disavowed it. The courts will not let him do so.

The case is Wang v. IBM, a summary order decided on February 24. Wang sued IBM for disability discrimination, claiming he was fired in violation of the Americans with Disabilities Act. He is hearing-impaired but can communicate through American Sign Language. Although Wang's claim survived summary judgment, his lawyer said it had a less than 10 percent chance of prevailing at trial. So everyone went to mediation to try to settle the case.

At mediation, Wang's lawyer said to Wang through ASL that the parties reached a settlement in the amount of $207,000. A memorandum of understanding was drawn up at the end of mediation, intended to lock everyone into the agreement. When the formal settlement agreement was drafted, Wang objected to the $207,000 and said he thought the case had actually settled for $200 million. He noted that the ASL gesture for the words "thousand" and "million" have a lot in common and are easily confused. He also said he had instructed his lawyer not to settle the case for less than $200 million. So Wang refused to sign the agreement and asked the trial court to repudiate it. The trial court said no, and the Court of Appeals affirms, which means the case settles for $207,000 and Wang does not get $200 million.

On appeal, Wang says the district court should have held an evidentiary hearing on whether his lawyer had authority to settle the case for only $207,000. But the Court of Appeals (Winter, Hall and Droney) agrees with the district court that it was implausible that Wang would believe that IBM would settle for that amount, particularly since Wang was highly educated, his lawyer said the case had a slim chance at trial, and the $200 million demand was wholly out of proportion to his salary. Moreover, "Wang does not identify what, if any, evidence he would present at an evidentiary hearing to show that his attorney was directed to settle for $200 million or more."

$1.350 million discrimination verdict thrown out the window over trial errors

The jury in this racial discrimination case found that the Village of Freeport violated Section 1981 and Title VII in appointing an Hispanic police officer (Bermudez) as Police Chief instead of the plaintiff (Barrella), a white male. That $1.350 million verdict is gone because the trial court allowed the plaintiffs to put on lay witnesses who told the jury they thought the police chief appointment was racially-motivated. Since that kind of opinion testimony is prohibited under the rules of evidence, the Village gets a new trial.

The case is Village of Freeport v. Barrella, decided on February 16. I wrote about the first part of the ruling at this link, which ruled that "Hispanic" is a race under Title VII and Section 1981. That interesting discussion segued into the more traditional appellate analysis about whether the Village received a fair trial. The Court of Appeals (Cabranes, Leval and Lohier) says the Village did not get a fair trial, so the Eastern District of New York must empanel another jury to decide if plaintiff was denied the Police Chief position in violation of the civil rights laws.

What went wrong at trial? We have to consider Fed. R. Evid. 701, which permits non-experts to testify in the form of an opinion only if it helps the jury to clearly understand the witness's testimony or in determining a disputed fact issue. But we cannot have these witnesses "tell the jury what result to reach." These witnesses are only allowed to help the jury draw its own conclusions. In 2000, the Court of Appeals said that

In employment discrimination actions, “Rule 701(b) bars lay opinion testimony that amounts to a naked speculation concerning the motivation for a defendant’s adverse employment decision.” Although witnesses may testify regarding “their own observations of the defendant’s interactions with the plaintiff or with other employees,” they may not opine as to the motives, racial or otherwise, underlying those interactions.

At this trial, one witness testified that "there might have been a component of race involved" in the decision to promote Bermudez over Barrella. But that was only this witness's "own personal opinion" based on other personnel decisions in the Village despite no personal knowledge of the qualifications of anyone involved in those personnel decisions. Another witness told the jury that Mayor Hardwick took race into account in making personnel decisions, but he "reached this conclusion without any personal knowledge of Hardwick's actual reasons."

In short, the District Court permitted Gros and Maguire to testify that Hardwick had recommended individuals for promotion based on their race, despite those witnesses’ admissions that they had no personal knowledge of Hardwick’s selection process and only the vaguest idea of the relevant candidates’ qualifications. Such testimony was not helpful to the jury in the sense required by Rule701(b), and the District Court’s decision to allow the jury to consider it was an “abuse of discretion.”

This was not harmless error, the Court of Appeals says, because it was a close case, and this bad testimony could have made the difference. The case was close because, while plaintiff had a better resume than Bermudez, the mayor may have had good non-discriminatory reasons for picking Bermudez over Barella. And federal law did not require the mayor to chose the most qualified person anyway. While the mayor said publicly that Bermudez was the Village's "first Hispanic" or "first Latino" police chief, the Court of Appeals says that "an employer's stated desire for diversity in the workplace does not, without more, establish discriminatory intent with respect to any particular employment decision." In addition,the civil rights laws do not "categorically forbid[] politicians from considering an appointment's political implications" or even to gain political favor from those appointments. Rather, "the urge of politicians to take credit for hiring or promoting members of hitherto underrepresented communities has often 'been a powerful means of achieving the social and political integration of excluded groups." (The Second Circuit actually cites a dissenting opinion from the late Justice Scalia for that proposition). In short, the Court says,

an otherwise lawful employment decision—one that was made for race‐neutral reasons or as part of a lawful affirmative‐action plan—does not become unlawful merely because the decision‐maker believed that some voters might evaluate that decision at least partly through the lens of identity politics.

The 2d Circuit asks, "What does it mean to be Hispanic?"

I will leave it to the Court of Appeals to frame the issue in this case: "This case asks us to resolve a vexed and recurring question: what does it mean to be Hispanic? Specifically, it presents the question of whether 'Hispanic' describes a race for purposes of § 1981 and Title VII."

The case is Village of Freeport v. Barrella, decided on February 16. In this employment discrimination case, the plaintiff, a white male, was denied a promotion to the Police Chief position, which instead went to an Hispanic male. Plaintiff said he was denied the position because he was white and that the Mayor's choice was a less-qualified Hispanic. He sues under Title VII and Section 1981, both of which prohibit employment discrimination. The case went to trial and the plaintiff won. The Village appeals, arguing that there is no case because these statutes -- which prohibit racial discrimination -- do not contemplate this kind of discrimination and that the definition of "race" does not include Hispanic ancestry or the lack thereof. This argument allows the Village to claim that plaintiff and Bermudez (who got the position) are both white under the statute. The Court of Appeals (Cabranes, Leval and Lohier) disagrees.

After reviewing the linguistic history of  how people from Mexico, Puerto Rico and other countries define themselves (i.e., Hispanic, Latino, etc.), the Court looks at Section 1981, and says this:

Despite societal confusion regarding Hispanic identity, the existence of a Hispanic “race” has long been settled with respect to § 1981. Although that statute never uses the word “race,” the Supreme Court has construed it as forbidding “racial” discrimination in public or private employment.The Court has further defined “racial discrimination,” for purposes of § 1981, as including discrimination based on “ancestry or ethnic characteristics.”

. . .

In short, despite defendants’ repeated attempts to confuse an already complicated, vexed issue, it has long been settled in this circuit that Hispanics comprise a distinct race for purposes of § 1981.

The same analysis applies to Title VII. "In contrast to our longstanding clarity with respect to § 1981, we have not yet resolved whether Hispanics constitute a race for purposes of Title VII." In particular, are Hispanics covered under the race or national origin provisions under Title VII? "If we were to treat Hispanicity as a national origin, but not as a race, for purposes of Title VII, plaintiffs in cases involving pro‐ or anti‐Hispanic discrimination might in some circumstances need to present two different factual arguments in order to invoke the distinct remedies of that statute along with those of § 1981." The Court concludes that "discrimination based on ethnicity, including Hispanicity or lack thereof, constitutes racial discrimination under Title VII." The Court reasons it out this way:

We reach this conclusion for two reasons. First, we analyze claims of racial discrimination identically under Title VII and § 1981 in other respects, and we see no reason why we should not do the same with respect to how we define race with for purposes of those statutes. Second, we have repeatedly assumed that claims of ethnicity‐based discrimination, including discrimination based on Hispanicity, are cognizable as claims of racial discrimination under Title VII, albeit without holding so explicitly. In Malave v. Potter (2003), for instance, we implicitly acknowledged the viability of a Title VII race‐discrimination claim based on Hispanic ethnicity. Similarly, in Krulik v. Board of Education (1986), we assumed the viability of a Title VII claim for intentional racial discrimination based on the plaintiff’s status as “white, Jewish, and/or not Hispanic.” The Supreme Court has similarly assumed that Title VII’s definition of race encompasses ethnicity.

There is more to this decision, to be discussed in a later blog post. This case went to trial, and the jury found for plaintiff, awarding him more than $1 million in damages. That is probably why the Village fought so hard to have this reversed on appeal on technical grounds about the proper scope of Title VII and Section 1981. But the Court of Appeals, through the above analysis, in the end vacates the verdict and sends the case back for a retrial because of serious trial errors that deprived the Village a fair trial.

Humiliating an employee may constitute retaliatory behavior

What is retaliation? That is the question. If you complain about discrimination, and management takes offense to that and takes action against you, when is that response illegal retaliation under the civil rights laws, and when is it too trivial for the courts to care about?

The case is Kirkweg v. New York City Department of Education, a summary order decided on February 16. Kirkweg brought this action pro se, but I argued the appeal. She had brought and settled a prior discrimination case against the Department of Education. After that case settled, Kirkweg -- a school principal -- had approved a pay increase for one of her subordinates. City educational officials then revoked that approval. Kirkweg says the pay raise was revoked in retaliation for her prior lawsuit. That revocation embarrassed and humiliated Kirkweg in the eyes of her subordinates, particularly since other school principals did not have their promised pay increases revoked. Does that pay increase revocation violate Title VII's prohibition against retaliation? The Court of Appeals (Raggi, Winter and Droney) says it might, and the case is reinstated (the district court granted the City's motion to dismiss the Complaint for failure to state a claim, in part, because the pay raise revocation did not cost Kirkweg any money).

The standard under Title VII in determining if the plaintiff suffered retaliation is whether the defendant's response to the plaintiff's protected activity (i.e., filing a lawsuit, complaining about discrimination) would deter a reasonable employee from complaining again about discrimination. The Court of Appeals says a single act by management that humiliates or undermines the plaintiff's authority may be enough to make out a retaliation claim. Here is the analysis:

Acts that humiliate or undermine an employee’s authority with subordinates can constitute adverse action supporting a claim for retaliation whether or not accompanied by any pecuniary injury. See Howley v. Town of Stratford, 217 F.3d 141, 154−55 (2d Cir. 2000). The crucial inquiry is whether the act could dissuade a reasonable employee from making a discrimination claim against the employer. See Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 68−70 (2006). While a pattern of humiliating or undermining activity may more readily yield a positive answer, it cannot be said that a single act—including the single act here—is insufficient as a matter of law to support that inference. Thus, to the extent this was the basis for dismissal, we are obliged to vacate and remand.

He threw the gun out the window

This is a fairly straightforward search and seizure case where the Second Circuit says the police were able to nail a guy for having an unlicensed gun at the wrong place at the wrong time.

The case is United States v. Bert, decided on February 9. The police got a call that five men were trespassing in a building in New York City. When the police found the men, their brief investigation suggested the guys did not belong in the building. At some point, Bert was not free to leave as the police went about their job. When Bert faced a window, the police told him to turn around and put up his hands. At that point, the police saw that Bert had a gun. Bert then threw the gun out of the 10th floor window. Bert was eventually arrested, and later on he made incriminating statements that made it clear the gun was his.Bert then moved to suppress the statements as the fruit of an unlawful seizure under the Fourth Amendment.

The Court of Appeals (Hall, Pooler and Jacobs) asks in this case if the police had the right to detain Bert such that they were able to find out about the gun. The Court says the seizure was legal. We call this a "Terry stop," where the police can detain you even without probable cause if they have reason to believe criminal activity is afoot. Here is the state of the law:

A police officer may detain an individual for questioning if the officer has “a reasonable suspicion that the individual is, has been, or is about to be engaged in criminal activity.” The officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion on a citizen’s liberty interest.” “While the officer may not rely on an inchoate and unparticularized suspicion or hunch, he is entitled to draw on his own experience and specialized training to make inferences from and deductions about the cumulative information available to him that might well elude an untrained person.”

Under the totality of the circumstances, the police had the right to detain Bert over the trespass inside the building. When the police got there, they were directed to the floor where Bert was situated. Bert told the officers he did not live in the building. This allowed the officers to briefly detain him to investigate his claim that Bert was visiting a friend in an adjacent apartment. On these facts, the officers were able to detain Bert, which means that his incriminating statements were admissible at trial.

Another courtroom closure habeas case

I have a soft spot for "closed courtroom" cases. In these cases, after a guilty verdict, the criminal defendant argues that he was denied a fair trial because the courtroom was closed for a period of time during trial. This may seem like the ultimate technicality, but it actually applies the Sixth Amendment's right to a public trial.

The case is Mickens v. Larkin, a summary order decided on February 5. This guy was convicted of various weapons and drug charges. But during trial when an undercover officer testified, the judge closed the courtroom. That's the basis for this habeas corpus petition.

Under Supreme Court authority, "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." The trial court temporarily shut the courtroom out of concern for the officer's safety, and the safety of his family. The question is whether the state appellate courts in upholding the conviction unreasonably misapplied Supreme Court authority in holding that the courtroom closure did not warrant reversal of the conviction.

Hope you read that carefully. The question is not whether the Appellate Division simply got it wrong. For defendant to win his federal habeas petition, the Appellate Division must have unreasonably gotten it wrong. Wrong is not enough. Very wrong is the legal standard. In this case, the Appellate Division did not unreasonably apply Supreme Court authority. Here's a flavor of the Second Circuit's (Calabresi, Lynch and Lohier) reasoning:

[Defendant] argues that the closure ordered by the state trial court, which permitted certain family members to remain in the courtroom and stated that other members of the public might be permitted to attend upon request, was broader than necessary to protect those interests. He does not identify any Supreme Court case so holding, however, and does not explain how his preferred alternative – posting an officer at the door of the courtroom and having the court make an individualized ruling for anyone seeking to enter – is superior to the measures in fact adopted by the trial court.

The courtroom-closure rule has to be one of the most obscure bases to overturn a criminal conviction. But again, it stems from the Sixth Amendment. It does not mean the defendant can run free; it means you have a re-trial. If you think this rule still goes too far, blame the constitutional framers. They were soft on crime. 

Another exciting case under the Collateral Order Doctrine

This case arose when a lawyer working for the State Attorney General's office brought a lawsuit over her termination, which she claimed violated the Americans with Disabilities Act. Her former employer argued that her case did not belong in federal court under an obscure law that says certain policymakers can only litigate their claims in the EEOC. The case then gets more and more technical and some readers will probably lose interest along the way, but it stands for an important point: some appeals are premature and have to wait until the case is over.

The case is Fischer v. New York State Department of Law, decided on February 5. Plaintiff worked in the Office of Appeals and Opinions writing briefs and taking on other legal analysis duties. She was fired after the defendant appeared to revoke a reasonable accommodation under the ADA because of her disability. Plaintiff then sued in federal court, and the state argued that the district court had no jurisdiction because state law says that policymakers can only have their discrimination claims adjudicated in administrative agencies like the EEOC. Concluding that plaintiff was not a policymaker, the district court disagreed and the state appealed that ruling.

Here is what you need to know. First, rulings like this are not immediately appealable. In the federal system, cases do not get appealed until the case is over, with few exceptions recognized under the Collateral Order Doctrine. Under that Doctrine, adverse rulings can be appealed right away if the order conclusively determines the disputed question, resolves an important issue completely separate from the merits of the case and be effectively unreviewable on appeal from a final judgment. This doctrine is so narrow you wouldn't believe it if it slapped you in the face. The most well-known application of this doctrine is that qualified immunity rulings can be appealed right away, because under that immunity, the defendant is immune from suit and the law wants the courts to decide immunity questions right away.

The case does not fall under the Collateral Order Doctrine. While the state argues that this case cannot be filed in federal court, the Court of Appeals (Kearse, Livingston and Pooler) says that "the collateral order doctrine has been held not applicable to permit immediate appeal of decisions denying motions to dismiss on the ground that plaintiffs' claims should be adjudicated in a different forum." In  the end, "the order rejecting [defendants'] contention -- that Fischer's claim can be pursued only by commencement of an administrative proceeding -- can be effectively reviewed on appeal from a final judgment."

The Second Circuit ruling does not get into the nitty-gritty of plaintiff's case and how exactly her former employer violated her rights. You will probably have to review the motion papers or the district court ruling for that. I also see that the Attorney General's office is defending this case. I wonder if plaintiff's former close colleagues are working on the case against her. The Second Circuit ruling is actually a motion decision that explores in detail the defendants' arguments for immediate appeal. The AG's office really does not want this case to proceed to trial. But proceed it will, under the settled rule that nearly all federal trial court rulings are not immediately appealable.

A man's home is his castle

A man's home is his castle, and, with a few exceptions, the police cannot cross the threshold to make an arrest without a warrant. That is what the Court of Appeals is telling us in a ruling that vacates a conviction for unlawful possession of a firearm.

The case is United States v. Allen, decided on January 29. This case was argued in December 2013, which means it took the Court of Appeals more than two years to decide this case. The police came to Allen's home because someone finked him out for assault. When the police spoke with Allen, they were outside the house, on the sidewalk. Allen was inside the house, talking to the police. Otherwise, they were face to face. The police told Allen he was under arrest for assault, and could he come with them to the police station? Allen said OK, but he needed to get his shoes from inside the house and speak to his daughter. He allowed the police to follow him into the house. Inside, the police saw drug paraphernalia and other unlawful things and they went and got a search warrant. While executing that warrant, the police found an unlawful gun and drug paraphernalia.

As the Second Circuit (Lynch, Lohier and Sack) remind us, the Fourth Amendment is particular in what the government cannot do. You are free from unreasonable searches in the home. Supreme Court and Second Circuit cases really say that your home is sacrosanct. The Court concludes that "where law enforcement officers have summoned a suspect to the door of his home, and he remains inside the home's confines, they may not effect a warrantless 'across the threshold' arrest in the absent of exigent circumstances." Put another way,

when officers approach the door of a residence, announce their presence, and place the occupant under arrest when he or she, remaining inside the premises, opens the door in response to the police request, the arrest occurs inside the home, and therefore requires a warrant.

This may seem like a technical ruling, but it is rooted in constitutional law, which sometimes lets the guilty go free because the search or arrest went too far. Other Circuits have decided this issue differently, "concluding that law enforcement officers may" make arrests like this "without physically entering the home." "These cases hold that the 'officers may not physically enter the home ...' partially because 'it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home." The Second Circuit charts its own path, in part because of prior Second Circuit precedent and also because the Supreme Court in Payton v. New York and other cases has emphasized that "the Fourth Amendment applies with its greatest force in the home." Moreover, "While it is true that physical intrusion is the 'chief evil' the Fourth Amendment is designed to protect against, we reject the government’s contention that this fact requires that Payton’s warrant requirement be limited to cases in which the arresting officers themselves cross the threshold of the home before effecting an arrest. The protections of the home extend beyond instances of actual trespass."