Hearing-impaired criminal defendant may bring habeas petition for ineffective assistance of counsel

This guy was convicted of murder even though he claimed self-defense. He brings a habeas corpus petition, claiming ineffective assistance of counsel because his lawyer did not do anything about the fact that the defendant was hard of hearing and could not hear what was happening at trial. The Court of Appeals says the defendant may have a point.

The case is Pierotti v. Walsh, decided on August 24. The defendant is a sympathetic party here, as the Court of Appeals (Pooler, Livingston and Lohier) notes that he complained to the judge that he could not hear what as happening in his own case. The Court rules in his favor, but not on the actual question of whether his lawyer blew it in not requesting an accommodation for his disability. Instead, the Second Circuit says merely that the district court has authority to hear this case despite the lower court's finding that the murder conviction could be sustained on independent state-law grounds. (Habeas petitions challenge the federal constitutionality of criminal convictions).

The issue of whether someone's conviction can be challenged in a federal habeas petition in light of an "adequate state law grounds" objection is complicated, but for this case, the bottom line is that while the failure to follow certain state-law procedures in initially challenging the conviction may provide a basis to prevent the federal court from entertaining the habeas petition, there are exceptions to that rule, including if the procedural bar was required in the particular facts of each case.

In this case, New York law held that Pierotti did not have to raise his ineffective assistance claim on direct appeal from his conviction. So, his failure to do so here is not fatal to his federal habeas claim. This is so because some ineffective assistance claims cannot be raised on direct appeal because there is no trial court record to reply upon in support of such an appeal. You have to bring what we call a 440-action to create a new record in support of your criminal appellate challenge. That is what Pierotti did here, as "his claim depended on some facts appearing on the trial record, such as his trial counsel's failure to secure an accommodation for Pierotti's hearing impairment, but his claim ultimately turns on facts appearing outside the record, such as his trial counsel's alleged awareness of Pierotti's hearing impairment.

What it all means for this guy is that the federal trial court has authority to decide Pierotti's habeas claim that his trial lawyer dropped the ball for him at trial. It does not mean that he walks free. It means he has the opportunity to prove to the lower federal court judge that this alleged ineffective assistance deprived him of a fair trial.

Woman can sue police for DUI arrest gone bad

False arrest cases are hard to win against the police, because courts ask if the police had "arguable probable cause" to arrest, which is part of the qualified immunity equation, asking if the officer had an objectively reasonable basis to make the arrest, even if the guy was not guilty of anything. Despite that built-in protection for police officers, this plaintiff makes out a false arrest claim arising from a highway DUI stop.

The case is Sakoc v. Carlson, a summary order decided on August 24. Carlson pulled over Sakoc because of a defective headlight. Carlson then administered field sobriety tests when he suspected that Sakoc was impaired by alcohol. He also gave her a breath test, which she passed. Sakoc was then taken to the police station, where she passed the blood test for drugs and alcohol. The district court dismissed Sakoc's false arrest case on qualified immunity grounds, ruling that while the officer was mistaken in arresting her, it was objectively reasonable for him to make that mistake. The Court of Appeals (Leval, Droney and Engelmayer [D.J.]) disagrees, making this one of the few cases I've seen in the Second Circuit where a DUI arrest leads to a real false arrest case.

As it happens, the Court says, "Sakoc concedes again that her performance on the field sobriety tests was not perfect, and that she could rightly have been assigned two defects in her performance, also known as 'clues.' She argues, however, that at the time of the arrest no reasonably competent police officer would believe that two clues garnered from field sobriety tests, when considered along with the other evidence she presented, would establish probable cause for arrest." I would think this would be enough for her to lose the appeal. But she wins the appeal.

The Second Circuit reviews the video of the arrest, among other things, and finds that, looking at the evidence from Sakoc's standpoint, no reasonable officer could have found arguable probable cause to arrest Sakoc for a violation of" Vermont law "solely based the video and accompanying audio of the field sobriety tests." Here is how the Court sees it:

The two conceded “clues” were minimal, Sakoc’s performance appeared to be otherwise satisfactory, and all remaining evidence tending to support probable cause was disputed and therefore must be treated on defendant’s motion for summary judgment in the light most favorable to Sakoc. Furthermore, Sakoc proffered evidence that this was Carlson’s first DUI arrest and he was motivated to arrest her so as to satisfy the completion of his field training. While a police officer’s motivation does not invalidate objectively justifiable behavior, in this case, suspect motivations can affect a jury’s appraisal of Carlson’s testimony in support of probable cause. As the district court correctly concluded, Carlson’s other claimed bases for the arrest, including improper operation of the vehicle before the stop, an odor of alcohol, poor performance of the portions of the field sobriety tests that cannot be observed on the video or heard in the audio, slurred speech, and “bombing” the field sobriety tests, are all disputed material facts. Crediting Sakoc’s version of the disputed facts, and evaluating the video and transcript in the light most favorable to her, the jury could conclude that Carlson unreasonably exaggerated the minimal flaws in Sakoc’s performance on the field sobriety tests. A jury evaluating the credibility of this and all other testimony could determine that there was no probable cause for plaintiff’s arrest.

Did you see the part about the police officer's credibility? Normally, the officers' subjective intent plays no role in whether someone was falsely arrested. In this case, Sakoc gets around that rule by arguing that the officer's rush to arrest her was not based on any legal violation but his desire to notch another arrest. You don't see reasoning like that very often.

Police officer gets a trial on her municipal corruption whistleblower claim

The Court of Appeals finds that a police officer in Connecticut can bring her First Amendment retaliation case to the jury arising from the termination of her employment after she blew the whistle on fraudulent payroll practices that allowed officers to pad their pensions.

The case is Ricciuti v. Gyzenis, decided on August 24. Few public employees actually win their First Amendment retaliation cases in the Court of Appeals, which has to follow the Supreme Court's Garcetti opinion, which says that workplace speech is not protected under the First Amendment if it arises from the employee's normal job duties. Since an employee's most relevant whistleblowing often relates directly to his job responsibilities, even the best whistleblowing may not be protected under the First Amendment. Since Garcetti was decided in 2006, few public employees have been able to convince the Court of Appeals they they engaged in free speech in exposing work-related wrongdoing.

Ricciuti bucks that trend. She was a patrol officer who became concerned that the department had outdated equipment that the department could not afford to replace. At the same time, officers were taking too much overtime. On their own time, Riccuiti and another officer prepared an "overtime matrix" that highlighted the excessive overtime problem and what it was costing the taxpayers. It was not Ricciuti's job to prepare this matrix, which she shared with local political leaders. She was terminated from her position soon afterwards.

The issue is whether the defendants are entitled to qualified immunity, which gets public defendants off the hook if their illegal actions were not in violation of clearly-established law. In other words, if the state of the case law was fuzzy at the time, the defendants win the case since they cannot be expected to know the state of the law the way a law professor or some other legal expert would. The problem for defendants is that they are appealing the denial of their motion for summary judgment, which means the Court of Appeals (Leval, Pooler and Wesley) have to accept Ricciuti's side of the story as true for purposes of determining whether the defendants violated clearly-established law. This is where the defendants' appeal fails. The Court of Appeals says:

No reasonable officer faced with Ricciuti's version of the facts could have concluded that Ricciuti's speech was made "pursuant to" her official duties as a patrol officer under the meaning of Garcetti merely because her speech owes its existence to her job. ... The law on this issue was clearly established at the time Ricciuti was fired.

A side note to this case is that the Court of Appeals acknowledges that the Court itself has not resolved whether the qualified immunity analysis asks whether the defendants' actions were "objectively reasonable" even if they violated clearly established law. For Section 1983 practitioners, this is an interesting issue, since the Second Circuit has noted that the Supreme Court has never adopted the "objective reasonableness" prong of the qualified immunity analysis, and that prong has led to the dismissal of many cases. The Second Circuit in this case determines that it can decide the case even without ironing out that issue.

Two government concessions lead to inmate appellate victory

It occurs to me that inmates win almost as many appeals in the Second Circuit as employment discrimination plaintiffs. In this case, a guy locked up in the Big House sues the state for religious discrimination. He wins the appeal.

The case is Smith v. Perlman, a summary order decided on August 3. He sues under two provisions: the Equal Protection Clause and the Religious Land Use and Institutionalized Persons Act, known as RLUIPA. The state allows religious inmates to celebrate certain religious holidays with family and friends. These are "family event days." Under the rules, each religious group gets one family event day. But Native Americans get nine family event days. Hence, the lawsuit.

The constitutional and RLUIPA claims each challenge the unequal family event day policy. The district court dismissed the equal protection claim without addressing the RLUIPA claim, which analyzes religious discrimination claims under a different and more plaintiff-friendly legal standard. (RLUIPA was a congressional response to the Supreme Court's pro-government religious discrimination claims under the Equal Protection Clause). The state concedes that the district court did not address the RLUIPA claim, so that claim heads back to the Northern District of New York to take up that issue in the first instance.

On the equal protection claim, the government won the summary judgment motion because the state said "the Native American religious group was singular in its need for family participation in multiple religious holidays, while other religious do not strictly require family participation as part of religious observance and thus would not be limited in such observance by the reduction to a family event day." But here, too, the government concedes on appeal that the state is now allowed to make religious judgments like this in setting policy. That's two concessions from the state in the same appeal. That's like seeing two triple plays in the same baseball game.

Another possible error in the district court's analysis is addressed in this ruling. The trial court said plaintiff did not show he was treated unequally by the policy or that the policy was motivated by intentional discrimination. The Court of Appeals (Livingston, Carney and Stanceu [D.J.]) is not sure about this.

We are not so certain that where, as here, the state expressly classifies inmates on the basis of religion in the prison context, a plaintiff challenging the state’s express classification on Equal Protection grounds must show either (1) that she was treated differently than members of a similarly situated group, or (2) that the state’s express classification was the result of intentional discrimination. Further, it appears that we have previously considered religious Equal Protection challenges (to both express religious classifications and policies generally applicable to all religious groups) in the prison context without requiring plaintiffs to show that they were treated differently than members of a similarly situated group, or that the state’s policy was the result of intentional discrimination.

Rather than untangle these issues, the Court of Appeals sends them back to the district court for further review.

Warrantless GPS tracking did not violate Fourth Amendment

In this case, the police found a dead body that was shot execution-style. The police knew this woman sold drugs with a dealer who was armed and dangerous. The question: how do we find this guy? They found him through his cell phone "pings" with assistance from Sprint. Since the police did this without a warrant, that procedures implicated the Fourth Amendment. The Court of Appeals says the police did not violate the Constitution.

The case is United States v. Caraballo, decided on August 1. Normally, the police have to get a warrant in order to search your person or your belongings. But the Supreme Court says a warrant is not needed if the police can prove "exigent circumstances," that is, an emergency that makes it impracticable to obtain a warrant. The officers did not think they had time to get a warrant to track the defendant through his cell phone, as they knew the victim was afraid of him and he was probably still running around with a gun and the residue from the shooting would dissipate if they waited too long to get the warrant. So they asked Sprint for his cell phone GPS information, and Sprint obliged. Through this expedited process, the police found the defendant and arrested him for murder.

The Court of Appeals (Calabresi, Lohier and Lynch) find that the police acted properly and did  not need a warrant under the exigent circumstances doctrine, which applies under these circumstances:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause . . . to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.

There was exigency here. This was a brutal killing and the officers had good reason to think defendant was armed. They also reasonably believed he was the primary suspect, as the victim had previously told the police she feared he might kill her if he knew she was speaking with the police. The officers also had reasons to think defendant would commit violent acts against law enforcement and confidential informants, as he told the victim he would kill her if she spoke to the police. And there was no time to get a warrant; while they waited for Sprint to respond to the warrant, defendant would kill someone. On top of that, the intrusion into defendant's privacy was relatively slight, and his expectation of privacy into his cell phone information was dubious, as the Supreme Court had not yet held that the warrantless access into cell phone information implicates the Fourth Amendment.

For federal rules junkies only

Ever since the Supreme Court handed down the Citizens United decision in 2010, challenging the constitutionality of campaign finance laws is the latest craze. When the Supreme Court made it easier to strike down campaign contribution restrictions on free speech grounds, business people, and the New York Conservative Party sued the City of New York over its campaign finance laws. Although the federal courts upheld the City laws, a 2014 Supreme Court ruling inspired them to try to reopen that case. The courts will not let them do so.

The case is Tapper v. Hearn, decided on August 10. This case raises an interesting question. Let's say lost a lawsuit because the law is not on your side. Then, at some point in the future, the Supreme Court issues a ruling that might have allowed you to win that case. Can you reopen the case based on that new Supreme Court ruling?

In this case, the SDNY and 2d Circuit held a few years ago that the First Amendment did not prohibit the City from enforcing campaign finance laws that, among other things, limited campaign finance contributions from companies that did business with the City. The 2d Circuit ruling in that case was handed down in 2011. In 2014, the Supreme Court issued another in its recent string of cases that applied Citizens United principles to certain campaign finance laws. Plaintiffs in this case think that case, McCutcheon v. FEC, would compel a different result in their case that they lost in 2011. So they asked the district court to reopen the case under Rule 60(b)(5).

That rule allows you to reopen a federal judgment under certain circumstances, such as when an injunction or some final judgment for prospective relief needs to be modified for equitable reasons. The Court of Appeals (Walker, Calabresi and Hall) frames the issue this way: "While we have made clear that orders or judgments that provide for ongoing injunctive relief fall squarely within [Rule 60(b)(5)], we have not yet had the occasion to review the denial of a Rule 60(b)(5) motion in which, as here, the movants seek reconsideration of an order dismissing their request for injunctive relief."

Other Circuits have taken up this issue and ruled that Rule 60(b)(5) does not reach that far, and the Court of Appeals agrees with those rulings and says the plaintiffs here cannot reopen the case under this rule.

The Court of Appeals does not discuss what the plaintiffs' remedies might be if in fact the Supreme Court's McCutcheon ruling might alter the 2d Circuit's analysis that upheld the constitutionality of the City campaign finance law. My guess is that if plaintiffs want to take advantage of the McCutcheon ruling, they have to file a new lawsuit and start from scratch.

Court of Appeals lays out the rules for ADA access claims in State prisons

This case is a thorough discussion of what it takes to win an Americans with Disabilities Act case against a public institution that denied you meaningful access to its services. In the end, the Court of Appeals rules in favor of a prison inmate who was denied the use of his motorized wheelchair.

The case is Wright v. New York State Department of Corrections and Community Supervision, decided on July 29. Wright is disabled. When he entered prison, they took away his motorized wheelchair and gave him a manual one, assigning inmates to help him get around the building. This is pursuant to the State's blanket policy against motorized wheelchairs by inmates. But Wright says this denies him meaningful access to prison programs and services, as he can only move around the manual wheelchair for short periods of time (it causes physical pain) and he is entirely dependent on the unreliable and ineffective mobility assistance program.

The law says these public facilities have to provide meaningful access to its services. The district court should not have granted the State summary judgment because the record does not conclusively show that Wright had that kind of access with the manual wheelchair, and he has been unable to use the law library, attend certain medical appointments and even reach the bathroom fast enough to avoid soiling himself. Since the mobility access program is ineffective and plaintiff has to rely upon the assistance of other inmates, he cannot engage in any spontaneous activity because an aide may not be around when he needs one. Applying the summary judgment principles in a faithful way, rejecting the State's argument that Wright does not have enough paper evidence to support his claim. the Second Circuit (Winter, Hall and Droney) notes that one reason why some of plaintiff's incidents were not sufficiently documented for the record is that plaintiff did not complain about them to avoid alienating the fellow inmates upon whom he relies for assistance. The State can save that argument for trial, because that's where this case is headed.

But wait, there's more. The Circuit says the State's blanket policy against motorized wheelchairs for inmates violates the ADA because the policy ignores the requirement that governmental institutions apply an individualized inquiry into the disabled plaintiff's circumstance in determining whether to deny his request for an accommodation. Under the burden-shifting scheme governing these cases, Wright satisfies the minimal burden of showing his accommodation -- allowing him the use of a motorized device -- is reasonable. To win the case, the State has to show the accommodation would constitute an undue hardship. It cannot do so. "We hold that DOCC's blanket ban on motorized wheelchairs violates the ADA and 'the Rehabilitation Act' because it precludes DOCCS from having to make an individualized assessment of a disabled inmate's particular needs." The Court holds for the first time that this individualized inquiry applies in the prison context. This means that general safety and administrative concerns are not enough for the State to win the case. The prison has to focus on the plaintiff's individual needs and circumstances. As plaintiff has presented evidence that the risks and costs of his motorized wheelchair are relatively low (he pays for the wheelchair, for example) and wheelchair is safe, the State's defense "may be overstated."

Donning and Doffing claim under FLSA returns to the district court

Plaintiffs worked for the New York City in the Parks Department as Assistant Urban Park Rangers. They sued the City for overtime violations because they were not getting paid for donning and doffing, a legal term for putting on and taking off their work uniforms before and after work. The Court of Appeals says plaintiffs may have a case.

The case is Perez v. City of New York, decided on August 2. "During a shift, AUPRs are required to wear uniforms comprising both professional clothing and equipment. The professional clothing includes 'olive drab' pants and jacket, 'Smokey the Bearʹ style hats, and various Parks Department insignias, while the equipment includes a bulletproof vest and a utility belt holding handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, a summons book, and a tape recorder." It takes 5 to 30 minutes a day for the urban cowboys to  change into and out of the clothing. Should they get paid for this?

"The FLSA does not require payment for time spent on 'activities which are preliminary to or postliminary to' an employeeʹs principal activities." The dispute is as follows: "The plaintiffs characterize those tasks as integral and indispensable to (and thus part of) their principal activities as AUPRs [which means they get paid for it], while the defendants describe them as preliminary or 'postliminary' to all principal activities [which means they don't get paid for it]." Here is the legal standard:

An activity is therefore ʺintegral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.ʺ

ʺThe more the [pre‐ or post‐shift] activity is undertaken for the employerʹs benefit, the more indispensable it is to the primary goal of the employeeʹs work, and the less choice the employee has in the matter, the more likely such work will be found to be compensable.ʺ Relatedly, an employerʹs requirement that pre‐ or post‐shift activities take place at the workplace may indicate that the activities  are integral and indispensable to an employeeʹs duties.

The Court of Appeals (Sack, Chin and Lohier) says plaintiffs may win the case because the donning and doffing in this case constitute "activities 'undertaken for the employerʹs benefit,' with no choice on the employeeʹs behalf." They also have to don and doff at work and not at home before or after their shifts. More fundamentally, "the uniforms appear to be vital to 'the primary goal[s] of [the plaintiffsʹ] work' during a shift." In particular,

An AUPRʹs utility belt holds items used to perform law‐enforcement duties. A summons book is, of course, necessary for the issuance of summonses. A baton, mace, and handcuffs, in turn, may be critical in effecting an arrest. And a radio and flashlight may prove crucial in tracking suspects and coordinating with other municipal employees. We are inclined to classify these items as tools of an AUPRʹs trade, arguably analogous to a butcherʹs knife, a radiological technicianʹs x‐ray machine, or a K‐9 officerʹs dog.

In addition, "professional clothing appears to be comparably essential to an AUPRʹs work. Uniforms generally serve to identify employees to others, and for many jobs (waiting tables, for example) that function may be a mere convenience. In the case of law‐enforcement personnel, however, identification to the public is more fundamentally intertwined with the objectives of employment."

While the City says that donning and doffing is not compensable under the "de mininus" exception, the Court of Appeals leaves that to the district court to sort out on remand.

Circuit outlines pleading standards for Title IX student discipline cases

The Court of Appeals has ruled that a male Columbia University student may sue the institution for sex discrimination arising from its finding that he had engaged in unwanted sexual contact with a female classmate. This decision says for the first time that the minimal prima facie pleading standards governing employment disputes under Title VII also apply to educational discrimination cases under Title IX.

The case is Doe v. Columbia University, decided on July 29. The media has focused attention in recent years on the fairness of academic investigations into sexual misconduct on campus, so this ruling will provide guidance into how to sue the colleges. After John  and Jane Doe had sex in a dormitory bathroom, she accused him of unwanted sexual assault. John said it was consensual. The complaint alleges the investigation was biased because the investigator was hostile in questioning him (she was deferential to the female student), did not tell him he could submit a written narrative, did not ask him about witnesses or follow up with them, took notes that did not accurately summarize what John told the investigator and, in the end, falsely depicted John of having inflicted nonconsensual sex on Jane by having coercively pressured her for weeks to have sex. At the same time, campus and outside media had criticized Columbia for not taking female complaints about sexual aggression seriously.

Since the lawsuit was dismissed under Rule 12, the Court of Appeals (Leval, Droney and Koeltl [D.J.]) borrows from the recent Title VII ruling that allows plaintiffs to plead minimal facts in support of the prima facie case. That ruling was Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). "Thus, a complaint under Title IX, alleging that the plaintiff was subjected to discrimination on account of sex in the imposition of university discipline, is sufficient with respect to the element of discriminatory intent, like a complaint under Title VII, if it pleads specific facts that support a minimal plausible inference of such discrimination." Since a prima facie case is all you need to plead a discrimination lawsuit, this holding will allow more cases to proceed to discovery.

The Complaint is reinstated on this new pleading rule because the investigator and University panel that ruled against John Doe did not seek out potential witnesses in his favor and otherwise violated its procedures intended to protect accused students. Since John further alleges that he was innocent, that permits the inference, for now, that he did not engage in any misconduct and that the University disciplined him without any basis. As for the motive -- gender discrimination -- the Second Circuit says John Doe has plausibly plead that also, as "the Complaint alleges that during the period preceding the disciplinary hearing, there was substantial criticism of the University ... accusing the University of not taking seriously complaints of female students alleging sexual assault by male students." It is plausible, the Court says, that Columbia was motivated "to favor the accusing female over the accused male, so as to protect themselves and the University form accusations that they failed to protect female students from sexual assault."