Police directive to leave the building in a certain way does not violate Constitution

The police arrested plaintiff's designated driver and told him to leave his friend's apartment and to leave the neighborhood. They even told him to walk a different direction down the street. When he followed the police's directive, plaintiff was attacked by someone with a machete. Somewhere in the mess there has to be a lawsuit, right?

The case is Urbina v. City of New York, a summary order decided on November 29. Urbina has an experienced lawyer who comes up with a few interesting theories about police liability. Plaintiff says he was in "constructive custody" at the time he was attacked because the police told him to leave the apartment and proceed away in another direction. The Supreme Court recognizes that some people are in police custody even if they are not in handcuffs if they are not free to leave a particular location. The Court of Appeals (Cabranes, Parker and Pooler) is not buying it. Plaintiff's lawsuit concedes that after the police told him to leave the apartment, he intended to enter a store to buy some food and then head home (or even return to the apartment). This means, the Court says, that plaintiff was in fact free to leave. There was no seizure under the Fourth Amendment.

Plaintiff also sues the police under the "Right to Travel" theory. The Constitution recognizes such a theory, but it is quite narrow, thanks to Williams v. Town of Greenburgh, 535 F.3d 71 (2d Cir. 2008) (a case I argued), which says the right protects movement between places and has no bearing on access to a particular place. While plaintiff says the police directive that he leave the apartment and to travel east instead of west restricted his movement in violation of the Constitution, that does not cut it, the Court says, because "minor restrictions on travel do not amount to the denial of a fundamental right" under the Constitution.

Sexual harassment against inmate may violate the Constitution

You can't just smack the inmates around. The Constitution forbids it. The inmate in this case filed a lawsuit in the Southern District of New York, which dismissed the case because the judge said he alleged isolated but "despicable" incidents of sexual harassment by a prison guard. The Court of Appeals reverses.

The case is Shannon v. Venetozzi, a summary order decided on November 15. This is what the plaintiff alleged happened to him:

Shannon alleged that on at least four occasions, before he was allowed to use the bathroom during prison visits from his wife, Officer Jermaine McTurner required him to undergo “aggressive and very provocative” pat-frisk searches, during which the officer “hit [Shannon’s] genitalia hard,” “rammed his hands into [Shannon’s] testicles very hard,” “fondl[ed Shannon’s] genitals,” and “rubbed his buttocks.” Shannon also alleged that Officer McTurner told him that “if you don’t want to be searched and sexually assaulted, stop coming to prison,” and that, when Shannon complained that Officer McTurner was violating prison policy and procedure by searching him in the middle of visits with his wife, Officer McTurner stated, “I don’t give a fuck about no P&P. This is my visiting room and I run it the way that I want.”

The district court said this was despicable, but isolated, so it did not violate the Eighth Amendment prohibition against cruel and unusual punishment. The court relied in Boddie v. Schneider, 105 F.3d 857 (2d Cir. 1997) for this proposition. But, the Court of Appeals (Katzmann, Wesley and Carney) says, more recent precedent guides this case, Crawford v. Cuomo, 796 F.3d 252 (2d Cir, 2015), which says "A corrections officer’s intentional contact with an inmate’s genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer’s sexual desire or humiliate the inmate, violates the Eighth Amendment.” In addition, under Crawford, “In determining whether an Eighth Amendment violation has occurred, the principal inquiry is whether the contact is incidental to legitimate official duties, such as a justifiable pat frisk or strip search, or by contrast whether it is undertaken to arouse or gratify the officer or humiliate the inmate.”

Since even less severe but repetitive conduct may be egregious enough to violate the Constitution, and "conduct that might not have been seen to rise to the severity of an Eighth Amendment violation 18 years ago may now violate community standards of decency," plaintiff -- who handled this appeal pro se -- states a claim. The case heads back to the trial court for discovery.

School district gadfly wins free speech retaliation appeal

This public school teacher was suspended and faced disciplinary charges only one month after he filed an Article 78 petition alleging the Board of Education had violated the Open Meetings Law. He sued under the First Amendment, but the district court threw out the case prior to trial. The Court of Appeals reinstates it, issuing one of the more interesting summary order rulings I've seen this year.

The case is Zehner v. Jordan-Elbridge Board of Education, a summary order decided on November 18. This is a non-precedential ruling, but it provides good insight into how these cases work. While teachers have some First Amendment rights and cannot suffer retaliation for exercising those rights, school districts and other public employers have a variety of defenses that can kill off your case.

There seems to be no issue whether the Article 78 petition is First Amendment speech. Defendants must have conceded that issue and went for its other other defenses: (1) there is no connection between the free speech and Plaintiff's suspension. The Court of Appeals (Walker, Chin and Hall) notes that "not even a month after instituting an Article 78 proceeding, in which Zehner alleged the Board violated New York's Open Meetings Law -- an allegation ultimately decided against the Board -- Zehner was suspended and faced discipline charges. That month-long gap is short enough to draw the inference that the Board had retaliated against Zehner.

While the causation issue is run-o'-the mill, the Mount Healthy issue is not. Mount Healthy is a constitutional doctrine that says that even if the defendant retaliated against the plaintiff in violation of the First Amendment, the defendant still wins the case if it proves that it would have targeted the plaintiff anyway, even without the free speech. Applying this principle in its elementary form, let's say Johnny Fungo works for a government office. Johnny sucks at his job and got caught faking his time sheets. At the same time, Mr. Fungo blew the whistle on rampant fraud at his agency. Management can't take it anymore and fired Johnny two weeks after the whisteblowing. While the termination was motivated in part by the free speech, let's face it, he would have been fired anyway because of the recent time sheet shenanigans. That's how Mount Healthy works.

In this case, the jury must decide whether the school district can invoke Mount Healthy. On the summary judgment motion, the district's witnesses attested that Zehner was going to be disciplined even without the speech, but the Court of Appeals says this is speculative: "it is insufficient to show that the Board might have or could have suspended or disciplined Zehner on some legitimate grounds." The Court cites Smith v. County of Suffolk, 776 F.3d 114 (2d Cir. 2015), for this proposition. While the Board introduced counseling memos to show that it was worried about plaintiff's workplace issues, they "merely show that the Board was concerned over rather minor and trivial issues involving Zehner," such as missing camera equipment, poor written communication skills and failure to follow school district procedures for various issues. These do not seem like trivial issues, but, the Court of Appeals says, "only two memos mention possible further investigation and disciplinary action based on inappropriate comments to students." The Court goes on to reason:

Considering that the Board did not bring complaints against Zehner until approximately seven months after the issuance of these two memos and after Zehner had prevailed on his first Article 78 action, and viewing the evidence in the light most favorable to Zehner, it is difficult to find a reasonable, non-retaliatory connection between Zehner's alleged misconduct and the actions the Board took against him. On the present record, viewed as we must view it, it cannot be said that the Board has established by a preponderance of the evidence that it would have suspended Zehner and filed disciplinary charges against him even in the absence of his protected First Amendment conduct. It is inappropriate, therefore, to grant defendants summary judgment on these grounds. Instead, it should be left to a jury to determine whether the Board's justifications for its actions were merely pretext for retaliation in response to Zehner's protected conduct.

Zehner prevails on other issues in this appeal. He was kicked out of Board of Education meetings, allegedly because of his disruptive behavior at meetings. It appears he spoke loudly at meetings and spoke over his allotted time. But the Court of Appeals says this was not so disruptive as to warrant his expulsion from meetings. 

On top of that, plaintiff prevails on a claim under NY Education Law 3028-d, which is quite obscure for most of us. It says you cannot retaliate against a school district employee for reporting on financial practices that violate laws or regulations. While the district court said this claim must fail because plaintiff did not cite a specific law or regulation that the Board had violated, the Second Circuit says he was not required to do so. All plaintiff  needed to show was that he held a reasonable belief that the Board had engaged in illegal financial practices. As the Circuit cites a State Supreme Court ruling for this point, it's fair to say the Second Circuit has never previously resolved a claim under Education Law 3028-d.

School can restrict religious postings in the classroom

This teacher posted religious postings in her classroom. The school district told her to remove the postings. The plaintiff sues the district under the First Amendment. She loses in the district court, and the Court of Appeals affirms the dismissal.

The case is Silver v. Cheektowaga Central School District, a summary order decided on November 8. Teachers have speech rights under the Constitution, but those rights are limited. You can say whatever you want on the streets, but schools have authority to control speech within the four walls of the classroom. That control includes certain political speech, but it also covers religious speech. This where two clauses in the First Amendment intersect. The free speech clauses says you can say whatever you want. The Establishment Clause says the government cannot promote religion. In the public school context, districts have authority to regulate what the students hear.

As the Court of Appeals (Katzmann, Wesley and Carney) notes, "schools may direct teachers to refrain from expression of religious viewpoints in the classroom and like settings," and "schools have a constitutional duty to make certain that subsidized teachers do not inculcate religion." The Court further notes that "when government endeavors to police itself and its employees in an effort to avoid transgressing Establishment Clause limits, it must be accorded some leeway."

Don't accept suspicious packages from the post office

This case hits home because it took place in my hometown, a few blocks from where I was living at the time. A businessman accepted a package on behalf of someone else and was then detained by the police because the package was suspicious. The package had marijuana in it, and the intended recipient of the package was a fake name. The Grand Jury declined to indict the businessman, who sues for false arrest.

The case is Kerr v. Morrison, a summary order decided on November 4. The police detained Kerr because other suspicious packages from California to New Paltz had already led to someone's drug-related arrest. The address on the package that Kerr had accepted (two offices and an apartment) had previously received two questionable packages for someone who did not exist. The return address was also fictitious and the package was excessively taped, a tell-tale sign of a drug parcel. Also, the mailing label on the package bore a number sequential to that on a prior suspicious package even though they were sent from different post offices under different names and on different dates. So something funny was going on.

Under the circumstances, the police had the legal right to detain Kerr when he agreed to accept the package. We call this a Terry stop, named after a 1968 Supreme Court decision that tells us when the police may detain you for questioning upon reasonable suspicion that criminal activity is afoot. While Kerr said nothing connected him to the package, the Second Circuit (Leval, Raggi and Sack) says the evidence suggests otherwise, and "his contention that he was accepting the package for an upstairs tenant rather than himself does not vitiate the reasonable suspicion for officers to stop him while they investigated further." Since a police doggy later found drugs in the package, moreover, the police had probable cause to arrest plaintiff for his alleged role in a drug transaction.

A side issue here: the police handcuffed Kerr after they stopped him. Kerr says this cuffing violated the Fourth Amendment because there was no probable cause to arrest him for drugs. The Court does not have to resolve this issue because the law was not clearly established at the time that "the law was not sufficiently clear to alert every reasonable official that Kerr's handcuffing incident to a Terry stop was unconstitutional in this case" and "the use of handcuffs during an investigative stop was not then -- and is not now -- per se unconstitutional." Since the law was not clearly established, the officers are entitled to qualified immunity.

 

The dreaded reorganization

Here is the timeline for the plaintiff's Family and Medical Leave Act claim: Plaintiff was Deputy Executive Director of Special Education for a Bronx organization that served Bronx schools. On June 18, 2010, she requested FMLA leave for health reasons. On June 24, plaintiff was fired. Plaintiff's FMLA leave was approved on June 26 through her termination date.

The case is Douyon v. New York City Department of Education, a summary order decided on November 7. It sounds like FMLA retaliation, but the Court of Appeals (Livingston, Calabresi and Rakoff [D.J.]) says it was not. Plaintiff makes out a prima facie case, but she cannot show the employer's reason for terminating her employment was pretextual. The reason was the company reorganized. Five positions were eliminated on the same day. While the Central Office hired two people at this time, they got their new jobs before plaintiff had even requested FMLA leave. Plaintiff produced no evidence that defendant would have hired instead of the others.

What we have is a case of bad timing for plaintiff. Few discrimination cases survive evidence that management had downsized or reorganized. I have seen cases where lawyers argue that management got rid of other people in order to get rid of the plaintiff in order to make it look like a reorganization. Courts will not buy that argument. It sounds too fanciful, and they do not think a reasonable jury will buy it, either.

Plaintiff also sues for sexual harassment. The Court does not tell us about the harassment, but harassment is not enough to win a harassment suit. You have to show the employer failed to deal with it, which means you have to show the plaintiff complained about it. The Second Circuit finds that plaintiff "admitted that she failed to take advantage of [the defendant's] procedures." Her excuse was that she feared retaliation. But the courts have been rejecting that excuse for years. "A credible fear of retaliation must be based on more than then the employee's subjective belief," the Court of Appeals notes.

Teacher's social media comments get him fired

People say things on social media that they would not say anywhere else. In this case, a public school teacher was on Words with Friends with someone he didn't know personally. A firearms collector, the teacher made some delusional and conspiratorial comments about space aliens, government control over the weather, government mind control, the Sandy Hook "hoax" and the coming civil war in America. He also said he wanted to kill people. Deeming him incompetent because of mental illness, the school district fired him after he went to a psychiatric hospital. He sues the district under the First Amendment.

The case is Heller v. Bedford Central School District, a summary order decided on November 4. While political candidates can say what they want, public employees cannot. Teachers can speak on matters of public concern, and Heller's comments technically fall within that protection because they addressed current events. But the analysis does not stop there. Most of the time, the courts decide if the school district satisfies the Pickering test, which says that public employees can be fired for addressing matters of public concern if officials reasonably think the speech would disrupt governmental operations. In this case, however, the Second Circuit (Jacobs, Livingston and Rakoff [D.J.]) factors in the "true threat" doctrine in deciding whether the Pickering defense attaches.

Without deciding whether the "true threat" principle applies here, the Second Circuit says "the record is clear that 'an ordinary, reasonable recipient who is familiar with the context of the communication' could well have viewed Heller's communications as 'a threat of injury.'"

Heller sought a trial in this case, arguing that his comments were "off-the-cuff social media banter" that included humor. But the Court of Appeals thinks Heller's comments were made in earnest, "and his conduct raised prudent concern about the risk of a school shooting."

I s'ppose cases like this will become more prevalent in the future. Social media is the Wild West of free speech, and the 2016 Presidential campaign saw a major party candidate joke about having his opponent assassinated. But anything goes in politics. Anything does not always go when you work for the government. 

Ballot-selfies are illegal in New York

It is illegal in New York for anyone to "show his ballot after it is prepared for voting, to any person so as to reveal the contents." That law was passed 126 years ago. Today, it would prevent you from posting a "ballot selfie" on Facebook. Some courts around the country are striking down this law under the First Amendment. A judge in New York City declines to do, and the law remains on the books.

The case is Silberberg v. Board of Elections, issued on November 3. The Facebook generation likes to post photos of themselves with their completed ballots to show the world why they are so enlightened. But new practices are still governed by old laws. Why was this law passed? Judge Castel says the law protects ballot secrecy and protects against bribery:

The statute did not merely offer the voter the option of voting in secrecy, but mandated it, and for good reason. As Justice Blackmun [has] noted ... the nation had been plagued with voter bribery prompted by ballots that political parties “often printed with flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance.” The problem was not resolved by standardized ballots because “the vote buyer could simply place a ballot in the hands of the bribed voter and watch until he placed it in the polling box.”

The plaintiffs seek a preliminary injunction, which would allow the court to rule in their favor at an early stage of the case if the plaintiffs can prove a strong likelihood they will win the case and irreparable harm if they do not win the case now. Judge Castel rejects that effort, reasoning as follows:

This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive. Selfies and smartphone cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well-intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera. This would not be in the public interest, a hurdle that all preliminary injunctions must cross.

Any deprivation of First Amendment rights has potential to create irreparable harm, so the court focuses on whether plaintiffs can win this case. The judge notes that "The plaintiffs allege that section 17-130(10) violates this constitutional guarantee by restricting New York voters’ rights to communicate by sharing photographs of marked ballots through the internet and social media." This would make sense to most people, for whom political speech is pure First Amendment speech. But the court holds that polling places are generally not "public fora" or pure speech zones, so the government has greater leeway in enforcing the law. Here, the court says, "states have a recognized interest in preserving the integrity of the election process. ... Section 17-130(10) was enacted in order to prevent vote buying, voter intimidation, and to preserve the secrecy of the ballot." The heart of the reasoning follows:

Indeed, the ubiquity and ease of smartphone technology plausibly increases the risk of one form of voter intimidation. Without the statute, employers, unions, and religious groups could encourage their members to upload images of their marked ballots to a single location to prove their commitment to the designated candidate. Those who declined to post a selfie could be swiftly outed and subjected to retaliation. This not-so-subtle form of voter intimidation is squarely within the zone of the statute’s intended reach.

Not only that, but ruling in plaintiffs' favor would cause serious logistical problems on Election Day. Poll workers have already been trained to enforce the prohibition against ballot-selfies, and a last-minute ruling would throw a monkey-wrench into the process. "Absent the best of reasons, not remotely presented here, elections officers should not have to disseminate a new, difficult-to-implement policy to 30,000 poll workers in the week before a presidential election. Requiring Defendants to make substantial changes to election policies at the eleventh hour is simply unreasonable, particularly given the fact that the plaintiffs could have brought their challenge several months or years ago."
 

2d Circuit certifies City punitive damages issue to State Court of Appeals

When the New York City Council passed its own civil rights law, it wanted broader protections against employment discrimination than provided by Title VII. The question in this case is whether the City law's punitive damages standard is co-terminus with Title VII, or whether plaintiffs under the City law may recover them even without proof that the employer acted in reckless or wanton disregard of the civil rights laws.

The case is Chauca v. Abraham, decided on November 1. I argued the appeal. Anne Donnelly Bush tried the case in the Eastern District of New York, convincing a jury that the defendant terminated plaintiff's employment because of her pregnancy. At trial, the judge declined to charge the jury on punitive damages on the City law claim, reasoning that, even if the employer discriminated against plaintiff, there was no evidence that the employer acted in reckless disregard of plaintiff's civil rights. In other words, the district judge applied the federal standard. Chauca argues that the federal standard does not apply to City law claims.

Chauca prevailed at trial because she was not allowed to return to work after she had a baby. Her less senior co-workers were able to keep their jobs. Plaintiff's boss testified that he did not return her to work because she had filed an EEOC charge against her employer. The jury gave Chauca $60,500 in damages.

The Court of Appeals (Katzmann, Sack and Hall) cannot decide the punitive damages issue just yet. The Court says that no binding state court ruling has definitively resolved what legal standard governs punitive damages claims under the City law.  Chauca argued that the City law presumes that discrimination victims are entitled to a punitive damages jury charge even without evidence that the discrimination was wanton and reckless. She grounds that argument in statutory construction and the City Council's directive that courts liberally apply the City law. Defendant notes in response that the Second Circuit in 2001 held that punitive damages claims are governed by the Title VII standard. But the Court of Appeals wonders whether that case, Farias, remains good law after the City Council said in 2005 that courts were not liberally applying the City law.

What does the Second Circuit do when it has an unresolved issue of state law? It can certify that issue to the state Court of Appeals, which presumably knows more about state law than federal judges do. That is what the Second Circuit does here. The issue is sent to the state's highest court to issue a definitive ruling. When that happens, the case returns to the Second Circuit to resolve the appeal once and for all, benefiting from the state Court of Appeals' statutory interpretation.