Limited duration property improvements for disabled child may violate Fair Housing Act

The Second Circuit holds that a town in western New York may have violated the Fair Housing Act after it gave homeowners a chance to modify their property to accommodate their disabled child but required them to eliminate the improvements once the child stops living there.

The case is Austin v. Town of Farmington, decided on June 21. When plaintiffs moved to the town with their severely disabled son, they ran into zoning restrictions. The problem was the parents wanted to install a fence to keep the child within the yard, and an above-ground pool that would provide aquatic therapy. The town granted plaintiffs a variance and allowed them to put up the fence and pool. The catch was that the fence and pool must be removed from the property after the child stopped living at the property, or when plaintiffs sold the property. It cost the family over $30,000 to put in the fence, pool and deck. They then sued the town under the Fair Housing Act.

At first glance, I did not see the legal issue here, and there is not much case law governing disputes like this. The town granted plaintiffs the accommodation when they moved in. But while the town does not want the variance to run with the land -- allowing later occupants to enjoy the improvements -- plaintiffs want to avoid the cost of tearing down the improvements. They also want to capture the increase in value of the property caused by the modifications if they ever sell the property. The Second Circuit (Winter, Raggi and Droney) says a juror "might find that a restoration requirement in some circumstances so burdens a party wanting to modify a property to accommodate a disabled person that it amounts to a refusal of a reasonable accommodation."

As always in reasonable accommodation cases, the issue of "reasonableness" is complicated, with balancing factors that often require a full evidentiary record. When you draft a law that turns on "reasonableness," you are asking for a lawsuit. Here is how the Court of Appeals sums up the competing interests and balancing factors:

Applied to the context of land-use regulations, relevant factors may include the purposes of the restriction, the strength of the Town’s interest in the land-use regulation at issue, the need for uniformity, the effect of allowing later landowners without a disability to enjoy the lack of a restriction on pools, decks, and fences, while all their neighbors are subject to it, the likelihood that a permanent variance will cause other landowners subject to the regulation to seek similar variances, etc.

Balanced against those factors is the cost of removal –- again, whether out of pocket or in a reduced sale price. We say no more because there are undoubtedly a host of relevant factors looking in both directions to be considered. Moreover, we do not want to make gratuitous statements that may seem to address other of the multitude of land-use regulations, e.g. historic landmarking, etc.

Company can fire employees for refusing to sit for interviews arising from AG investigation

This employment dispute asks whether an employer had cause to fire two employees who did not comply with an order to explain themselves in the context of a government investigation into possible criminal conduct.

The case is Gilman v. Marsh & McLennan, decided on June 16. The State Attorney General was investigating whether insurance brokers were steering clients toward particular insurance carriers. Marsh & McLennan hired a law firm to conduct an internal investigation into all of this. Plaintiffs were to be interviewed in this internal investigation. The AG's office then shifted its investigation into an alleged bid-rigging scheme involving Marsh and several insurance carriers. After people at AIG pleaded guilty to bid-rigging and identified plaintiffs as co-conspirators, plaintiffs were directed to sit for interviews and threatened with termination if they failed to comply with that directive. Meanwhile, the State Attorney General told management that it would forego criminal prosecution of the company if it cooperated with the investigation. Plaintiffs refused to sit for interviews. One was fired; the other resigned and was denied certain post-retirement benefits "for cause."

The Court of Appeals (Jacobs, Kearse and Winter) says plaintiffs were fired for-cause because they disobeyed a lawful order  from management. The order was lawful because the employer was entitled to seek information from its employees about possible job-related criminal conduct. True, the employees may have had the personal right not to sit for these interviews. But management has rights, too.

The Court reasons:

Marsh’s demands placed Gilman and McNenney in the tough position of choosing between employment and incrimination (assuming of course the truth of the allegations). But though Gilman and McNenney “may have possessed the personal rights to [not sit for interviews], that does not immunize [them] from all collateral consequences that come from [those] act[s],” including leaving Marsh “with no practical option other than to remove [them].” “[T]here would be a complete breakdown in the regulation of many areas of business if employers did not carry most of the load of keeping their employees in line and have the sanction of discharge for refusal to answer what is essential to that end.” Marsh had to use the “sanction of discharge for refusal to answer,” id., because in the absence of an exculpatory explanation, Marsh needed to assume the worst: that the bid‐rigging allegations were true and that Marsh was vicariously liable for their criminal conduct.

Supremes strike down DOL overtime regulation for auto dealerships

The Fair Labor Standards Act is the law that requires employers to pay you minimum wage and overtime if you work more than 40 hours a week. The overtime rule has a zillion exceptions, however. This case from the Supreme Court looks at one of them and holds that the U.S. Department of Labor lacked any legal authority to rewrite the rules governing overtime pay for service advisors  who work at car dealerships.

The case is Encino Motorcars v. Navarro, decided on June 20. This case is a little boring, so let's spruce it up. The second you step foot into the parking lot at an auto dealership, a salesman will come-a-running in the hopes that you buy a car that will grant him a commission so he can feed his family. This case does not involve overtime for the salesmen. After you buy the car and it starts to fall apart because someone cut corners at the factory in Detroit or Japan, you have to return to the dealership to get it fixed. If you have a warranty or there is a recall, you have taken the car to the right place. Otherwise, as George Costanza once said, noting the excessive charges for dealership repairs, you'd have to be out of your mind to bring your car to a dealer. But the repair people have to make a living, too. This case involves the repair people, specifically the service advisors.

In 1966, Congress said there is no overtime requirement for "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements or aircraft." The Department of Labor then issued regulations to enforce that law in 1970. That rule defined "salesman" to mean employees who are primarily engaged in making sales or obtaining orders or contracts for the sale of vehicles. The regulation also excluded service advisors -- who sell repair and maintenance services but not vehicles -- from the minimum wage requirements, which meant the dealerships could deny them overtime. In 2011, the DOL issued a new set of rules that said "salesman" only covers people who sell vehicles. In this case, service advisors sued to recover lost wages. The lower court said service advisors are no longer covered under the exemption, which means they can enjoy full FLSA protection and get their overtime. The employer appeals, claiming service advisors should still be exempt, consistent with the law passed in 1966; they argued the 2011 regulation is illegitimate.

A word or two about administrative law. When Congress passes a law, an executive agency like the Department of Labor, Department of Education, etc., has to issue regulations that help us to interpret and apply the law. This is what we call the bureaucracy. The regulations have to be consistent with the laws, to ensure that the agencies are not in essence writing up new laws. A good regulation fills in the blanks left by a vague law while remaining consistent with the law's aims. Since the regulators are not elected, they have to comply the Supreme Court's guidelines in the Chevron decision from 1984, which says the regulations have to be rational and consistent with Congressional intent.

The 2011 regulation in this case is not legitimate, the Supreme Court says, because it rewrote prior rules that the industry had relied on for years but did not provide any "reasoned explanation" for the change of course. This means the regulation is stricken and the case has to be decided under the law as written in 1966. More broadly, the Court is telling executive agencies to do a better job in explaining themselves when they rewrite rules that were in place for years and that the industry had relied upon.

Another exception to the exclusionary rule

As the Supreme Court winds down another term, the focus is on immigration, affirmative action and abortion. We tend to overlook the other cases that also impact our lives and could result in your being thrown in the slammer.

The case is Utah v. Streiff, decided on June 20. Under the exclusionary rule, if the police conduct an unlawful search and find something illegal, that illegal find cannot be used against you in court. We call it the "fruit of the poisonous tree." But there are exceptions to the exclusionary rule, and this case highlights one of them. Along the way, Justice Sotomayor dissents and tells us what Justice Thomas's majority decision means for the real world.

It all started when the police got a tip about a house that was the site of narcotics activity. The police followed one guy out of the house and approached him. That was Strieff. In the parking lot at the nearby convenience store, the police asked him for ID. The police relayed Strieff's information to a dispatcher, who found there was an outstanding warrant on a traffic violation. Strieff was arrested on that warrant, and in searching him incident to that arrest (normal police procedure), they found drug paraphernalia. Problem was, the initial stop of Strieff was illegal because there was no reasonable suspicion for it. The drug paraphernalia was the fruit of the poisonous stop. But that does not mean it cannot be used against him.

The 5-3 majority notes the exclusionary rule doesn't count in certain instances: (1) if the evidence would have been found through an independent source other than the guy who was stopped, (2) if the evidence would have been found even without the unconstitutional stop (the inevitable discovery rule) and (3) the attenuation rule, which says that "evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that 'the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained."

Strieff gets nailed on the attenuation exception. The Court holds for the first time that the attenuation doctrine applies when the illegal stop results in the police discovery of a valid warrant against the defendant, and the arrest from that warrant reveals something illegal. As Justice Thomas puts it, the issue is whether "the discovery of a valid arrest warrant is a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff's person." The answer is yes. And another exception to the exclusionary rule is on the books.

Justice Sotomayor dissents, noting that outstanding warrants are common, particularly for traffic offenses, and that rulings like this have real-life consequences for people, including humiliating arrests that can include intrusive body searches and more incarceration:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer's violation of your Fourth Amendment rights. Do not be soothed by the opinion's technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

. . .

Writing only for myself, and drawing on my professional experiences, I would add that unlawful "stops" have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers' use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Most remarkable for me is the dissent's reference to recent literature about the high rates for incarceration for minority groups. Justice Sotomayor writes:

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone's dignity can be violated in this manner. See M. Gottschalk, Caught 119-138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95-136 (2010). For generations, black and brown parents have given their children "the talk"— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are "isolated." They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner's Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

Counsel's error in summation at rape trial not enough to win habeas petition

If you handle criminal cases, you know there is a good chance that your client will attack the quality of your representation if the jury finds him guilty. The inmate may file a habeas corpus petition in federal court and claim "ineffective assistance of counsel." These petitions usually fail. But sometimes the petition is a close call. This case is one of them.

The case is Gillespe v. Uhler, a summary order decided on June 21. This was a rape trial. The victim said she was raped at around 11:46 p.m. In summation, defendant's lawyer said the time stamp on the surveillance video at the bagel store (where it happened) was 11:44 p.m. In fact, the time stamp said it was 11:46 p.m. Those two minutes would have made all the difference between guilt and innocence. Also, counsel said the victim had vaginal lacerations even though the prosecution's medical expert said on cross-examination that there were no such lacerations. That statement in summation supported the prosecution's theory of the case.

So did defense counsel provide ineffective assistance of counsel? Kind of. The State appellate court did affirm the conviction. Federal courts have to defer to State court rulings, even on constitutional claims like ineffective assistance of counsel. You win the habeas petition only if the State appellate court had unreasonably applied settled constitutional standards. The State courts can get it wrong on constitutional matters so long as they don't really blow it.

The State court did not really blow it here. While the government admits that defense counsel made mistakes in summation, it argues that the State appellate court was within its discretion to uphold the conviction anyway. There was testimony that the surveillance footage when defendant left the bagel store said 11:46 p.m. While the manager of the bagel store said the time stamp may have been off by two minutes, the jury did not have credit the accuracy of the time stamp, so it was able to find that defendant left the store at 11:44 p.m. after all. So the lawyer's statement in summation did not necessarily prejudice the defendant's case. As for the vaginal laceration statement in summation, the prosecution's medical expert said there were no vaginal lacerations. Since the jury was instruction that summations are not evidence, the State appellate court did not irrationally affirm the guilty verdict.

Good loving gone bad

The New Haven Fire Department was last in the news a few years ago when white firefighters won their case in the U.S. Supreme Court because the department threw out their test scores. That was the case involving Sonia Sotomayor, forcing her to explain why she ruled against the plaintiffs in what was actually a very complicated case under the civil rights laws. This New Haven firefighters case involves a bad romantic relationship that cost this guy his job.

The case is Crenshaw v. City of New Haven, a summary order decided on June 21. Crenshaw dated a woman named Townsend while he was studying to become a fireman. He was on the certified list for a position. When the relationship ended, Williams said bad stuff 'bout Crenshaw, like he had threatened to kill fire commissioners because he had been previously denied a position with the department. While the City made plaintiff a conditional offer of employment, he failed the background check after Townsend bad-mouthed Crenshaw to the hiring people in order to prevent Crenshaw from getting the job. The City also discovered that plaintiff was not forthcoming about prior drug use and his outstanding debts.

The Court of Appeals (Pooler, Sack and Lynch) says Crenshaw has no case. To the uninitiated, plaintiff got the shaft. His best claim is under the due process clause, but these cases are very difficult to win, as any plaintiffs' civil rights lawyer will tell you. Plaintiff did not have a concrete right to the position, only a unilateral expectation for the position, so there is no property interest. That's been the legal standard since at least 1972. While you can bring a "loss of reputation" claim under the due process claim (these are known as "stigma plus" claims), the federal courts have made it so difficult to win these cases that you probably should not even show up for oral argument. Crenshaw loses the stigma-plus claim because the City made no stigmatizing claims about him in denying him the position, and nothing bad was said about him in public to cause any stigma. While Townsend sent an anonymous letter to the City about Crenshaw, the City did not repeat these false statements or make them public. So while Crenshaw got a raw deal, the Constitution sometimes provides no relief for a raw deal.

This case includes a footnote with a good practice tip. The lawyer's brief said that plaintiff incorporated all the arguments that he made in his district court memorandum of law. This may have been done in an exercise of caution, but the Court of Appeals doesn't like this because any good arguments should be in the appellate brief. The appellate court does not want to be rummaging through the file looking for the lower court brief. Any arguments that were in the district court brief but not in the appellate brief are waived, the Court says.

Can the trial court order the discharged jury back to the courtroom?

This Supreme Court case asks the question: what does a trial judge do when the case is over and the jury is on its way out the courthouse and the judge realizes something is wrong with the verdict? Do you call the jury back for additional deliberations? Is the jury allowed to head out the door, never to be seen or heard from again? If so, does the judge declare a mistrial and order a new trial?

The case is Dietz v. Bouldon, decided by the Supreme Court on June 9. This was a personal injury case that went to trial in Montana. The defendant admitted liability and said he was responsible for the $10,136 in medical expenses. The jury had to decide of the defendant had to pay out any other damages. But the jury returned a verdict of $0.00 for the plaintiff. The judge then thanked the jury for its services and told them they were discharged. Moments later, however, the judge realized the jury had blown it. It could not award no money if the defendant had stipulated to pay the $10,136 in medical costs. So the jurors were intercepted as they were leaving the building and ordered to continue deliberating, which they did, awarding plaintiff $15,000 in damages. The defendant appeals, arguing that the jury cannot bring the jury back after they are discharged.

The Federal Rules of Civil Procedure have provisions for nearly every conceivable procedural event that can happen in a lawsuit. But it says nothing about what to do when the jury is discharged and someone realizes they are not finished with their service because something went wrong with the verdict. So the Supreme Court has to apply old fashioned horse-sense in this case. It decides by 6-2 vote that the judge in this case properly exercised his discretion in bringing the jury back. Nothing in the rules prevented the judge from doing this, and the courts have inherent authority to ensure that justice is done. In order to bring the jury back after discharge, the court has to ensure that none of the parties are prejudiced by this maneuver, that is, that the jury was not exposed to any information in the courthouse hallways (such as passing conversations about the case or text messages or the losing party screaming about the unfair verdict in the hallway) that might further affect its view of the case. If the judge is satisfied that the jurors did not see or hear anything about the case and the jurors are brought back to the courtroom quickly. Writing for the majority, Justice Sotomayor says:

In this case, the Supreme Court says the trial judge did not abuse his discretion in returning the jury to the trial. "Only one juror may have left the courthouse, apparently to retrieve a hotel receipt. The jurors did not speak to any person about the case after discharge. There is no indication in the record that this run-of-the-mill civil case—where the parties agreed that the defendant was liable and disputed damages only—generated any kind of emotional reaction or electronic exchanges or searches that could have tainted the jury. There was no apparent potential for prejudice by recalling the jury here."

No clear case for inmate who was retaliated against for Huffington Post article

A federal inmate wrote an article for Huffington Post under his own byline. The article accused prison management of retaliating against him for his free speech. After that article appeared, he was sent to a detention center for violating rules that prohibit inmates from publishing articles under a byline. He brings a federal lawsuit, but the case is dismissed.

The case is McGowan v. United States of America, decided on June 7. What makes this case interesting is that the rules that prohibit inmates from publishing under a byline were declared unconstitutional by a federal court in Colorado six years earlier. When that happened, the Bureau of Prisons sent out a memo telling the prisons not to enforce the byline rule. Yet, it was enforced against McGowan.

It all sounds like a great case: McGowan (who was convicted for environmental arson with the Earth Liberation Front) and  is charged with violating a rule that was previously declared unconstitutional under the First Amendment. But a great case does not mean you have a case. Here again, we run into a qualified immunity problem. Government officials are immune from lawsuits unless they violate clearly-established constitutional rights. Clearly-established means the Court of Appeals or Supreme Court has said in a similar case that what happened to the plaintiff is illegal. If the state of the case law was too fuzzy, the government defendant cannot be sued, on the theory that he would not have been on notice that he was violating the Constitution.

The Court of Appeals (Katzmann, Sack and Lohier) says there is no clearly established law that says an inmate cannot be punished for publishing a by-lined article. Yes, there are cases that generally say that inmates cannot be retaliated against for engaging in free speech inside the jail, but that it not quite this case, which involves free speech outside the jail, which might conceivably "permit[] such inmates to become 'big wheels' in the prison community, or could incite violence, or could intimidate prison staff members," at least according to the government. Ultimately, the fact that no appellate court has decided a case like this means that McGowan cannot show the law was clearly-established.

Excessive force claim comes back to life

This is the second installment in this false arrest/excessive force case that yielded a large verdict that the district court and Second Circuit took away. This time around, I talk about the excessive force claim.

The case is Figueroa v. Mazza, decided on June 3. After plaintiff was placed in the police car following his bad arrest in connection with lewd child photographs, an unidentified officer punched him in the face. Prior to that, plaintiff said, the officers had manhandled him during the arrest. The jury awarded plaintiff money for the excessive manhandling, but the trial court dismissed the claim that the officers had failed to protect him when someone punched him in the face. The Court of Appeals agrees that there is no excessive force claim on the manhandling allegations, but that plaintiff deserves a trial on the failure to intervene on the face-punch claim.

For the Court of Appeals, the manhandling claim is not complicated. Here is the reasoning (Samuel is Figueroa):

Here, defendants did nothing more than “grip[ ]” Samuel’s shoulders, and “push[ ]” him out of his mother’s apartment to the waiting police car. The officers had need to push Samuel along because he lightly resisted by stiffening his legs, and their pushing caused him no injury. There is no suggestion in the record that this application of light force was actuated by malice or a desire to cause harm. Accordingly, every factor enumerated in Johnson weighs against Samuel, who complains basically of the kind of de minimis physical contact common to virtually every custodial arrest.

In other words, some police force is OK under the circumstances. The jury may have thought otherwise, but the jury does not have the final say. We do not tell jurors this when they preside over the case, but everything they do is carefully scrutinized after they enter their verdict.

But the failure to intervene claim on the face-punch claim is revived and will go to trial. The trial judge thought the face punching happened too quickly for the officers to intervene. The Court of Appeals says the trial judge did not view the evidence in the light most favorable to plaintiff's claim, instead basing its findings on plaintiff's quick hand gestures at trial (less than 20 seconds) that replicated what had happened to him. Except that plaintiff never claimed that he was reenacting the duration of the attack. In addition, another witness said the assault went on for at least one minute, maybe two minutes. The Court then invokes an interesting evidentiary rule that I have always wondered about: "A party that admits on the witness stand a fact damaging to his case is ordinarily free to contradict that fact through the testimony of other witnesses and argue that their testimony should be believed over his own. Such an argument might cut no ice with the finder of fact, but the matter lies squarely in the jury’s province."

One other point: the Court rejects any argument that failure to intervene claims require a bright-line rule on how long the assault must take place. The trial court said that assaults that take place less than 20 seconds cannot predicate failure to intervene claims, but that event happens too quickly for the police to help the victim. But the Court of Appeals does not always like bright-line rules, reasoning:

Failure‐to‐intervene claims can arise out of a limitless variety of factual circumstances. In each case, the question whether a defendant had a realistic chance to intercede will turn on such factors as the number of officers present, their relative placement, the environment in which they acted, the nature of the assault, and a dozen other considerations. Among these considerations, of course, the assault’s duration will always be relevant and will frequently assume great importance. But this does not permit distillation of a hard‐and‐fast temporal cutoff of the kind relied on by the District Court. Instead, courts must evaluate each case on its own facts, keeping in mind that circumstances other than an assault’s duration might bear significantly on an officer’s ability to stop it from happening. The essential inquiry is whether, under the circumstances actually presented, an officer’s failure to intervene permits a reasonable conclusion that he became a “tacit collaborator” in the unlawful conduct of another.

False arrest verdict thrown out the window

This police misconduct case raises a smorgasbord of legal issues. Particularly intriguing is that the Court of Appeals agrees that the jury had no basis to rule in plaintiff's favor, which means the verdict is gone for good even though plaintiff was a sympathetic victim. But the law does not always care about sympathetic victims if the defendants are able to show they deserved to win anyway.

The case is Figueroa v. Mazza, decided on June 3. The facts are complex, but here's a thumbnail. Someone called Duane Reade's photography processing department begging that the pharmacy throw away and not develop certain pictures that someone dropped off. A Duane Reade employee looked at the pictures, which depicted a young naked boy in distress, with close-ups of his private parts. That employee called the police, who thought these photos might be evidence of a kidnapping or sex trafficking. Turns out, the initial phone call to destroy the pictures was made by someone, Saenz, whose complaints about child abuse had in fact been ignored by the police. Saenz took the date-stamped pictures of the unharmed boy as evidence in case her son's father had abused him later on. Figueroa had filed the complaint against the police on Saenz's behalf. Despite this evidence suggesting that no one had committed any crime, the police still investigated the case as a potential kidnapping, interviewing Saenz's mother, who said the child in the picture was her grandson and that Saenz had joined a cult with Figueroa, who had injured Saenz's daughter while exorcising demons from her. The police eventually found Figueroa, but he would not cooperate with the investigation into the alleged kidnapping, maintaining his innocence. The police arrested him and he claims an officer face-punched him in the police car for no good reason. In the end, nothing bad had happened to the child, and the charge against Figueroa -- endangering the welfare of a child -- was dropped.

At trial, the jury found in Figueroa's favor on his false arrest and excessive force claims against various defendants. Total amount of the verdict: $574,000. That verdict is gone. And that brings me to a favorite theme of mine: some injustices will simply go unremedied. The police enjoy certain legal protections that the rest of us do not. Even if they make incorrect choices and take someone into custody improperly, that does not mean the victim will win money in court. As the courts see it, the police cannot do their jobs if they are going to worry that every error made in 20/20 hindsight becomes a lawsuit. We call this qualified immunity. When you consider that the legal standard for false arrest -- probable cause -- itself gives the police much leeway (probable cause carries a much lower burden of proof than reasonable doubt), that leeway is expanded through qualified immunity, which lets the police off the hook if they acted reasonably at the time, even if later events proved them wrong. We call it "arguable probable cause."

What this means in this case is that the police had reason to think plaintiff had not done anything wrong. But their investigation also gave them reason to think they had a real child abuse case on their hands, in substantial part because of the nude child photograph. The Court of Appeals (Cabranes, Walker and Kearse in dissent) says, "All in all, the photos of the child were so disturbing, and the circumstances so bizarre, that it cannot be said that no reasonable officer could have rejected Saenz’s explanation notwithstanding its arguable consistency with the known facts."

Out goes the verdict. The district court, which granted the officers' post-trial motions to vacate the verdict, must have felt lousy about all of this, opening his ruling with the following language:

Rejecting the verdict of a dedicated, intelligent, and assiduous cross section of the community—as this jury was—can only be justified on the strongest grounds. Here, the evidence stands stalwartly against a verdict in plaintiff's favor with respect to all his claims for false arrest, excessive force, and assault.

Plaintiff had an appealing background. He laid claim to a series of advanced degrees, among them in law and theology. He claimed to have lectured widely on theological and moral problems throughout the world. He testified to having earned the esteem of a coterie of wealthy individuals dedicated to philanthropy who, for decades, supported his efforts to disperse funds to persons he deemed "needy." That such a man was publicly humiliated by an arrest that occurred in his mother's home, leading to a public view of himself surrounded by more than a dozen police officers, might have offended the jury.

Supreme Court rules for plaintiff in constructive discharge case

The Supreme Court finds by a huge margin that the statute of limitations for constructive discharge claims under Title VII starts to run when the plaintiff leaves the workplace and not when the act that triggers the constructive discharge takes place.

The case is Green v. Brennan, decided on May 23. Here are the facts: Green worked for the Post Office in Englewood, Colorado. He claimed he was denied a promotion because of his race. Two of his supervisors then accused Green of intentionally delaying the mail, a federal offense. The Inspector General's office investigated the allegation. Green and the Post Office signed an agreement on December 16, 2009 that said the PO would not pursue criminal charges against Green if he left his post in Englewood. The agreement also gave Green a choice: retire or report to duty to some backwoods region with a population of 451 in Wyoming, at a much lower salary. Green submitted his resignation on February 9, 2010, effective on March 31, 2010. He brought the EEO complaint 41 days after submitting his resignation on February 9, which was 96 days after signing the December 16 agreement.

If the date Green signed the agreement is the operative date for filing the charge, then the charge is time-barred. If the clock starts running on the date he submitted his resignation,then he has a case. The Court says he has a case. The statute of limitations in constructive discharge cases starts to run when the plaintiff resigns. Here's the reasoning:

Under the standard rule for limitations periods, the limitations period should begin to run for a constructive-discharge claim only after a plaintiff resigns. At that point—and not before—he can file a suit for constructive discharge. So only at that point—and not before—does he have a “complete and present” cause of action. And only after he has a complete and present cause of action does a limitations period ordinarily begin to run.

In this respect, a claim that an employer constructively discharged an employee is no different from a claim thatan employer actually discharged an employee. An ordinary wrongful discharge claim also has two basic elements: discrimination and discharge. The claim accrues when the employee is fired. At that point—and not before—he has a “complete and present cause of action.” So at that point—and not before—the limitations period begins to run.

With claims of either constructive discharge or actualdischarge, the standard rule thus yields the same result: a limitations period should not begin to run until after the discharge itself. In light of this rule, we interpret the term“matter alleged to be discriminatory” ...  to refer to all of the elements that make up a constructive-discharge claim—including an employee’s resignation.

Supreme Court issues ruling on reverse-attorneys' fees under Title VII

In employment discrimination cases, the employer pays the plaintiff's attorneys fees if the plaintiff wins the case and gets a judgment. But that is a one-way ticket. If the employer wins the case, the plaintiff does not pay its fees unless the case is totally frivolous and groundless. The Supreme Court said that in the Christiansburg-Garment case in 1978. The Court now says that a favorable ruling on the merits is not necessary for the employer to recover reverse-fees in a Title VII case.

The case is CRST Van Expedited v. EEOC, decided on May 19. The EEOC brought this action against a trucking company, claiming it had discriminated against more than 150 women. The facts and procedural history are convoluted, but the bottom line is that a federal judge rejected the lawsuit because, in violation of its legal responsibility, the EEOC had not adequately investigated the claim. The company won over $4 million in reverse attorneys fees.

The Supreme Court says this attorneys' fees award was proper. You don't need an actual judgment on the merits of the case to trigger the reverse-fees provision. The Eighth Circuit had ruled otherwise, but that court is reversed by the Supreme Court, which says that while a ruling in the employer's favor on the merits might be what some employers actually want (in order to defend their good name), a victory of any kind in the employer's favor -- even on procedural grounds -- is also a victory. The Court reminds us that it held in Christiansburg-Garment that the reverse-fee doctrine aims to deter all frivolous lawsuits. In light of that principle, for purposes of determining if the employer can recover fees from the plaintiff, what difference does it make it the dismissal is based on the merits (i.e., the plaintiff never had a chance in hell) or some procedural basis?

Justice Thomas issues a brief concurrence. As is often the case, he sees things quite differently than the rest of the Court. He writes to state that Title VII does not actually say that defendants only get reverse fees if the plaintiff's case is frivolous. While the Court in Christiansburg-Garment said the employer only gets fees in "special circumstances," Title VII does not say that. That is a judge-made rule. Justice Thomas thinks Christiansburg-Garment is a "dubious" precedent and will not extend it any further. He does not say this, but Justice Thomas would presumably say that employers can recover fees if it wins any Title VII case, and if the Court doesn't like it, Congress can re-write the statute to confirm to the principles set forth in Christiansburg-Garment.