Ferrari's Farraari

This due process case is interesting because the Court of Appeals vacated a plaintiff's verdict and entered judgment for the County of Suffolk. The case is also interesting because the plaintiff's last name is Ferrari, and the case stems from the County's seizure of his Ferrari after Mr. Ferrari drove wildly while under the influence.

The case is Ferrari v. County of Suffolk, decided on December 27. Suffolk County had a law that allowed the government to seize your car if you violated the drunk driving laws. After the County seized the car, there was a post-seizure hearing intended to comply with the Due Process Clause, which restricts when the government can seize your property. The district court granted the County's motion for summary judgment, ruling that plaintiff had established the County routinely fails to prove that it needs to retain the cars even though the County establishes at these post-seizure hearings that the vehicle was used as the instrumentality of a serious offense, as well as evidence that the driver had previously been convicted of car-related offenses. The County also usually proves at these hearings that the driver poses a danger to the public with his car. The district court also ruled that the County did not address alternative measures to ease the hardship on the driver. Following this ruling, a jury awarded Ferrari $95,000 in damages to compensate for the seizure of his car. (News reports at the time said the plaintiff bears no family relation to the Ferrari company).

The Court of Appeals (Livingston, Leval and Carney) reverses and says Ferrari did not deserve to win the case and that the County is entitled to judgment as a matter of law. The Due Process Clause is basically a fairness clause. It says very little about what the government must do to protect you from unwarranted seizures of property or liberty. The rules for this derive from case law, as judges adopt multi-part tests to weigh the interests of citizens and the competing interests of the government. This case raises a new issue for the Court of Appeals, which poses the question this way:

when, at a retention hearing, Suffolk County presents evidence that a driver such as Ferrari has a history of intoxicated or reckless driving (evidence that serves to make out a prima facia case that retention pendente lite is necessary to protect the County’s financial interest and its interest in protecting the public) may the County, consistent with the Due Process Clause, then shift the burden of going forward onto the owner‐driver to point to a specific alternative measure that he is willing and able to sustain that might satisfy the County’s interests, and to demonstrate that such alternative measures would be feasible for him?

The answer to this question is Yes. Suffolk County's procedure is legal. The County may, after putting on prima facie evidence that it needs to immediately seize the car, require the driver to prove other feasible ways to protect the government's interests. In weighing the competing interests, the Court says that (1) the driver ma have an important interest in retaining the use of his car right after the arrest, but (2) plaintiff's interest in forcing the County disprove the feasibility of alternative measures to seizing the car is weak. "A requirement that Suffolk bear the initial burden of proving the infeasibility of alternative measures as part of its prima facia case does not greatly add to the protection already afforded such owners pursuant to Suffolk’s existing procedures." Also, the County's practice of requiring the vehicle owners to articulate an alternative measure does not have a material effect on the owner's interests because he already knows from County prior to the hearing that the availability of alternative measures will be discussed at the hearing.

You get the point. Each side must be given a fair shake at these hearings. Under the Due Process Clause, it does not take much for the government to give you a fair shake. Most of the Due Process Clause cases that I have seen over the years do not put the government through the ringer in this regard. Some fairness, even if that fairness is not compelling, is all it takes.   

Employment retaliation 101

This case provides a good introduction into how employment discrimination cases are decided in the Second Circuit. The plaintiff alleges retaliation for speaking out on financial abuses, and brings this action under the Sarbanes-Oxley Act, which courts resolve under traditional employment retaliation standards.

The case is Yang v. Navigators Group, a summary order decided on December 22. The district court threw out Yang's case on summary judgment. The Court of Appeals (Leval, Sack and Raggi) revives the claim, and it heads to trial. Here is how the district court got it wrong:

1. The district court said Yang did not engage in protected activity when she communicated concerns about some investment risk models because she only offered her own deposition and affidavit testimony about her protected activity. But the Court of Appeals reminds us that this "self-serving" testimony is enough to create an issue of fact for trial. We do not need corroborating evidence if the plaintiff testifies from her personal knowledge that something happened. For more on this concept, see Danzer v. Norden Sys. Inc., 151 F.3d 50, 57 (2d Cir. 1998) and Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 80 (2d Cir. 2016). This is an important pointt in discrimination/retaliation cases, as plaintiffs often find they cannot find corroborating witnesses, most of whom will disappear once the lawsuit is filed because they do not want to suffer their own retaliation for assisting the plaintiff-traitor.

2. The district court also said that plaintiff cannot prove she was fired because of her outspoken objections. She was fired two weeks after plaintiff opened her mouth. That is normally close enough to draw a retaliatory inference, but the district court said there was an intervening factor that cut off the causal connection: she gave a disorganized and incoherent presentation to defendant's senior executive team. Intervening factors can in fact kill off a retaliatory inference, and defense lawyers are always looking for this kind of evidence, but the parties here dispute what happened at that meeting. The jury has to resolve this evidentiary conflict, not the district court. As an aside, the district court relied on another district court case in support of its holding that the intervening cause entitled management to summary judgment. But that district court ruling has since been overturned by the Second Circuit, Sharkey v. JP Morgan Chase, 2016 WL 4820997 (2d Cir. Sept. 12, 2016).

3. Plaintiff also wins this appeal because defendant offered conflicting reasons for her termination. Those conflicting reasons suggest defendant was dissembling to shield a retaliatory motive. While defendant cites generalized performance concerns to justify plaintiff's termination, she was never told of these concerns during her employment. Rather, plaintiff says she was only told she was fired because she did not fit into defendant's "culture" and lacked a "hands on" approach to her position. This is an interesting holding. Usually, the "inconsistent explanations" theory of retaliatory or discriminatory intent involves different reasons offered by defendant once the case proceeds to litigation. In this case, we look at what management told plaintiff prior to her termination and compare it with defendant's explanations post-lawsuit.

A slew of sexist comments not enough for discrimination lawsuit

This female New York City police officer sued over gender discrimination. The issue is whether she presented evidence of intentional gender discrimination. The Court of Appeals says No.

The case is Camarda v. City of New York, a summary order decided on December 14. It looks like plaintiff was treated unfairly. Her evidence that this happened because of her gender is that (1) Sgt. Festa said that Sgt. Milone "was looking to hurt plaintiff and would give her assignments that would making the necessary arrests required by her job" and (2) Sgt. Festa was transferred for refusing to "participate in getting [plaintiff] with unnecessary discipline." You can work with evidence like this in building a case of gender discrimination, but the Second Circuit (Calabresi, Raggi and Lynch) says it's not enough. While this evidence suggests plaintiff was treated unfairly, we cannot assume it was motivated by gender because "defendants subjected male officers to some of the same disciplinary actions for some of the same actions for which Camarda was cited." That's a clunky way of saying plaintiff was treated no differently than then men.

We have a lot of sexist comments in this case, but none are enough to support the inference of gender discrimination. Plaintiff presents evidence that Sgt. Mai told her "you are a girl and you can't type." This can also support a claim of gender discrimination. But not in this case. Plaintiff does not dispute that her actions -- "contesting a superior's retype order after preparing a flawed summons" -- justified discipline. While this was an "insensitive" comment, it does not establish discriminatory motive.

There were other sexist comments in the record. Sgt. O'Leary "pointed at [her], said 'no low cut shirts' and ... was looking [at her]." This does not support plaintiff's case, either. The evidence shows that O'Leary's disciplinary action was based not only on plaintiff's dress but on her failure to have her memo book with her, in violation of department policy. Men were disciplined over this also.

Another gender-related comment: members of the department said they did not want plaintiff around because she is a female. The problem with this evidence is that it's hearsay and therefore inadmissible.

What do we learn from this case? A slew of stupid comments will not necessarily create a viable Title VII case. We have hearsay evidence to worry about. We also have sexist comments that refer to to the plaintiff's actual performance deficiencies, negating the import of the sexist comments. We have men who were disciplined over the same misconduct as plaintiff. This case could have been decided differently, I surmise.  
 

Circuit rejects constitutional claims arising from school district expulsion orders

Courts do not like it when dangerous or even potentially dangerous people want to enter a public school building. The facts of this case suggest to me that the Second Circuit was not about to give this guy any leeway.

The case is Jones v. Bay Shore Union School Free School District, a summary order decided on December 20. In the late 1980s, Jones coached the girls' softball team when the district had reason to believe he had sexually assaulted four students, prompting his resignation. In 1998, after plaintiff tried to reengage with the district as an NAACP representative, school officials barred him from the property. In 2008, when Jones' daughter was attending school in the district, the school allowed him to enter the school to participate in her education. A few years later, the district told Jones he could address the Board of Education in writing instead of doing so in person. A few years later, in 2012, the district said he could address the Board in person if he gave advance notice.

Jones sues the district, arguing that he was barred from school property in retaliation for his First Amendment activity: advocating on behalf of minority students. The Court of Appeals agrees with the district court: Jones has no case. True, Jones had engaged in First Amendment activity when he wanted to be the NAACP representative. But the district had legitimate concerns about student safety. While the school superintendent had initially been receptive to Jones' attempt to be the NAACP representative back in 2008, he changed his mind when he learned about the sexual misconduct allegations.

The Second Circuit (Winter, Jacobs and Cabranes) does not provide much analysis, but this looks like a Mount Healthy case, where the government can repel First Amendment claims by showing it would have denied the plaintiff an entitlement even if the plaintiff had not engaged in First Amendment activity. I sometimes see this as a judgment call by the courts. How do you figure out the hypothetical question of whether the government would have reached its adverse decision even without the free speech? In this instance, the Second Circuit solves that puzzle quickly.

Jones also sues under the Due Process Clause over the procedures he must follow to attend school board meetings. The Second Circuit doesn't see it. While Jones has to provide advance notice before attending the meetings, that is a de minimus burden in light of the district's interest in protecting students from someone who was discharged from teaching for suspected sexual misconduct with students.

Discrimination verdict is upheld as 2d Cir. rejects jury instruction challenge

This case will be of interest only to lawyers who try cases in federal court. The Second Circuit applies a few interesting rules that can make or break the appeal for those of us unlucky enough to lose at trial.

The case is McFadden v. County of Monroe, a summary order decided on December 6. Losing at trial is awful, no matter what side you're on. Think about what it takes for a case to go to trial. The case proceeds to discovery for six months to a year, followed by motion practice, when each side tries to convince the judge either that you have a great case (plaintiff's argument) or there is no case at all and a jury trial would be a waste of time (defendant's argument). If the case cannot settle (most cases settle prior to trial) it means the parties have dug into their positions such that any settlement offer or demand is regarded as an insult and the other side can go to hell. In this context, hell is trial, where eight strangers sit in judgment of your clients. After a week of testimony and trial madness, the jury reaches a verdict. The losing side picks itself off the floor and looks for a way to bring an appeal.

Most jury verdicts are essentially unreviewable on appeal unless the lawyer can argue that the trial court did something wrong that denied you a fair trial. One way to do that is to challenge the jury instructions on appeal. A bad jury instruction can go a long way toward a meritorious appeal. But even those arguments can lose. That's what happened here.

This is an employment discrimination case. The jury ruled against the plaintiff, who relied on the Cat's Paw theory of liability. Cat's Paw is a judge-made doctrine that says if the decisionmaker is a nice guy who happened to rely on the recommendation of a racist or sexist supervisor in terminating your employment, you can win the case because the racist or sexist supervisor tainted the process. Judges like Cat's Paw cases because it allows them to drop a footnote telling us about the Aesop's Fable from which the Cat's Paw language derives. It has something to do with a monkey, chestnuts, a fire and a cat.

Plaintiff argues that he was denied a fair trial because the trial court did not charge the jury on Cat's Paw. He also argues that the court should have told the jury that a retaliation plaintiff can win his case with proof of "a convincing mosaic of circumstantial evidence that would support the inference that retaliatory animus was at work."

Let's look at the mosaic argument. This language comes straight from a Seventh Circuit case, Smith v. Bray, 681 F.3d 888 (7th Cir. 2012). The "mosaic" theory of discrimination proof has turned up in Second Circuit cases, as well. It's another way of saying the plaintiff can win the case with bits and pieces of circumstantial evidence that together make out a mosaic of discrimination. But the mosaic language is useful only for resolving summary judgment motions, where the trial judge decides if the plaintiff has enough evidence to win the case. "Mosaic" is not a legal standard. For that reason, the Seventh Circuit said in the Smith case that any judge who mentions "mosaic" in the jury charge will probably be reversed on appeal. Since the trial court in McFadden's case did tell the jury he can win the case on circumstantial evidence, the jury charge was OK.

Equally interesting, at least for the trial lawyers, is why the Second Circuit (Katzmann, Winter and Calabresi) rejects the Cat's Paw argument. Yes, Cat's Paw language can go into the jury charge. But it was not reversible error for the trial court to omit that language from the jury charge. Since McFadden did not object to the jury charge during the trial, he can only win the appeal if the omission was "plain error," which is another way of saying the trial judge totally blew it. The trial court did not blow it in this case because the Second Circuit had neither accepted nor rejected the Cat's Paw approach when the trial took place. Since plain error only exists when the the trial court's ruling was contrary to law at the time of the ruling, McFadden cannot win the appeal on this basis. Which means the verdict stands.

Seemingly senseless arrest hands the plaintiff a lawsuit

This case tells us very little about what happened to this man who was seemingly arrested for no reason whatsoever. But on the face of his complaint, it's sufficiently inexplicable that he can proceed with his lawsuit.

The case is Jurkowitsch v. Choudhury, a summary order issued on December 8. The district court denied the police officer's motion to dismiss. Since the officer raised a qualified immunity issue, he can appeal right away, one of the few occasions you can take up an immediate appeal (normally, we have to wait for the case to be resolved all the way through for the Court of Appeals to have authority to hear the appeal). Here are the allegations:

At around 9:40 a.m. that Friday morning, Jurkowitsch entered the branch office of the bank where he has deposited his paycheck weekly for the past six years. The branch’s exterior and interior doors were unlocked, the lights were on in the lobby, customers were using the ATM, and there were employees present in the branch. Upon entering, Jurkowitsch sat down in the bank’s lobby to await assistance with depositing his check. After he had been waiting in the lobby for a brief period, six officers from the New York City Police Department arrived and, without asking Jurkowitsch to leave the bank and without asking him any questions at all, arrested him. Officer Choudhury and the other police officers took Jurkowitsch into custody, and after being held for several hours, he was eventually charged with Criminal Trespass in the Third Degree, N.Y. Penal Law § 140.10(a). The charge was later dismissed.

God knows why plaintiff was arrested. He does not have to put all the facts into the complaint. On a motion to dismiss, we go by what the plaintiff alleges. If the police have a real defense, that will have to wait for the completion of discovery and a summary judgment motion. Now, some people plead themselves out of federal court, because the complaint does not satisfy the pleading standards or the plaintiff admits to something that allows the district court to rule against him. Not here. The Court of Appeals (Livingston, Chin and Carney) puts it this way:

the facts alleged in the complaint are not sufficient to establish that Officer Choudhury had probable cause or arguable probable cause to arrest Jurkowitsch. Officer Choudhury primarily relies on the complaint’s allegation that Capital One’s report of a crime at the bank led to Jurkowitsch’s arrest. The complaint, however, alleges only that a Capital One employee called 911 several minutes after Jurkowitsch sat down in the bank to wait for help depositing his paycheck, and that the officers acted based upon Capital One’s false report of a trespass and possible burglary. The complaint lacks any description of the 911 caller’s statements or of circumstances that might have indicated the caller’s veracity or basis for knowledge.

No due process right for inmates to wear what they want at funerals

You probably have not given this any thought, but inmates are allowed to go to funerals when their loved ones die. When that happens, what do they wear? What can they wear?

The case is Baez v. Pinker, a summary order decided on December 8. Baez went to his father's funeral but was forced to wear state-issue release clothing. In other words, he wore what the jail told him to wear, not what he wanted to wear. Baez sues under the Due Process Clause, arguing that he has a constitutional right to wear the clothing of his choice for funerals.

I would imagine the public would be outraged that a case like this can proceed all the way to the Court of Appeals, but it is not as frivolous as you think. Due process prevents the government from restricting a liberty or property interest without good reason. Liberty and property interests are found in state law or regulations that absolutely entitle you to be able to do something such that the government has no discretion to decide otherwise. State regulations do say that prison officials "may permit" an inmate to attend the funeral of an immediate family member. So there is some discretion there, which cuts against Baez's case. But another state rule says that when inmates are granted permission to attend the funerals, he "shall appear in civilian clothes." Shall means must, not may. Does not this create a liberty interest?

There is no liberty interest, the Court of Appeals (Calabresi, Raggi and Lynch) says. This is because another directive says that when inmates attend funerals, they "shall be given the option to wear either the State-issue green clothing or the State-issue release clothing." The state-issue release clothing satisfies the "civilian clothes' requirement under the regulations. All things considered, the policies allow inmates to wear civilian clothing in the form of state-issue release clothing (khaki trousers and a white shirt), which is what Baez wore to his father's funeral. The regulations do not allow inmates to wear what they want.  

When can you sue when the government screws you over?

The everyday man knows something about the law, but not much. It's not his fault. Lawyers know the law the way mechanics know car engines. We suspect the law was broken from time to time, but the everyday man does not know for sure. All he knows is that he got screwed. By the government or by his employer,  but he got screwed. There is a constitutional doctrine for these cases. We call it "class of one" equal protection cases.

The case is Beard v. Town of Monroe, a summary order decided on December 6. The Town came down hard against Beard but did not do the same with his two neighbors. Beard uses his land to operate numerous business, including excavation, trucking and hauling, salvage, demolition and plowing. He's got hydraulic excavators, three plow trucks, some trailers, a dump truck and other stuff. After a neighbor complained about Beard's property, the Town enforced the zoning code against him. But two other property owners were left alone. One guy, Twombly, uses his property to grow trees and sell compost and mulch. Another guy, Smith, uses his land for logging, selling topsoil and raises cows, chickens and other animals. He also has an excavation business. The point is that these three men each run different businesses on their land. The Town went after Beard but not the others.

The "class of one" theory of equal protection arises from a Supreme Court case, Village of Willobrook v. Olech, 528 U.S. 562 (2000). It allows people to sue under the Equal Protection Clause when they get screwed by the government. That's not proper legal language, but you get the idea. It's a residual way to sue when you are aggrieved by the government and no other constitutional theories apply. But the courts have worked toward narrowing the scope of "class of one" over the years, almost as if they realized that a broad theory of liability would open the courthouse doors to every grievance imaginable. (If you are victimized by an arbitrary or capricious governmental action, you can always sue in state court under CPLR Article 78). Nowadays, courts are looking for "an extremely high degree of similarly between [plaintiffs] and the persons to whom they compare themselves."

Beard loses the case because Twombly and Smith are not "similarly situated" to him. In other words, the Second Circuit (Walker, Chin and Carney) says their situations are too different from Beard's. They use their property for different purposes than Beard. Since the court finds a logical way to distinguish Beard from his neighbors, he has no "class of one" case.

Newspaper trespasser cannot sue the police -- or the paper

The plaintiff sued the local newspaper for trespass after they had him arrested for showing up against their wishes. He also sued the police. Let's face it, there are some people -- you just don't want them around. The district court dismissed the case and the Court of Appeals affirms.

The case is Russell v. The Journal News, a summary order decided on December 5. The Second Circuit tells us very little about what happened here other than that the the Journal News told the police that he was "causing alarm" to its employees. The paper sent a letter to plaintiff's attorney that he was prohibited from entering the property. On the day of his arrest, the paper told the police that plaintiff was back. The police saw plaintiff seated on a bench the police thought was Journal News property, and plaintiff got busted.

The criminal charge against plaintiff was dismissed because the accusatory instrument was insufficient on its face. The prosecution then failed to file new charges, and that was the end of the criminal case. As the late Judge Brieant used to tell us, this gives the plaintiff a ticket to the courthouse. But it does not mean the plaintiff can win the case. There are too many defenses available to the police that courts can choose from once the plaintiff brings his lawsuit.

Plaintiff did not just sue the newspaper. He sued the police for malicious prosecution. But as the Court of Appeals (Walker, Hall and Chin) reminds us, facial insufficient dismissals are not dismissals on the merits. Without a dismissal on the merits, there is no malicious prosecution claim. That's a drag, because if the police don't have the wherewithal to write out the charges properly, you ought to be able to sue for something, right? But you can't.

Turning to the case against the newspaper, we run into another defense the police can invoke in litigation: qualified immunity. The general public knows nothing about this immunity, which gives the police the benefit of the doubt in close cases. We call it "arguable probable cause," which is as good as the probable cause defense that kills off so many false arrest cases. The Second Circuit phrases the issue very carefully: the police saw plaintiff on what they thought was a Journal News bench. Who knows who really owned the bench. But it is close enough. Case dismissed.

Interesting language buried in the opinion. The Court of Appeals notes that probable cause cannot exist if the police make the arrest "entirely on baseless or unreasonable conjectures and assumptions." This language derives from Mitchell v. City of New York, 2016 WL 631801 (2d Cir. Oct. 28, 2016). The plaintiff in this case cannot use that language, because there was no conjecture here. But expect to see that language pop up in other cases. It opens the door for creative plaintiffs' lawyers to chip away at the probable cause defense.

2d Circuit clarifies excessive force instruction in Section 1983 cases (Dancy v. McGinley Part III)

The Second Circuit last week issued a lengthy ruling that upheld a false arrest and excessive force judgment in favor of a 17 year-old plaintiff who was awarded $196,500 in damages. Here I discuss the second plaintiff's claim, which lost at trial. The Court of Appeals ordered a retrial for this plaintiff.

The case is Dancy v. McGinley, decided on December 7. While Elting won his false arrest/excessive force claims, the jury rejected Dancy's excessive force claim. The Second Circuit (Chin, Livingston and Carney) says the trial court did not give the proper jury instruction on Dancy's excessive force claim.

Officer Williams testified that, at the time of Dancy's arrest, he deliberately bent Dancy over a police car but that he did not cause Dancy to suffer his injuries, which included a broken jaw. He also said he never intended to harm Dancy. The trial court instructed the jury that it had to find that Williams "acted intentionally or recklessly" rather than "merely negligently" in his interaction with Dancy. The court suggested that if Williams' actions were "merely negligent," Dancy could not win the case. The jury ruled against Dancy.

Here is the lay of the land in Fourth Amendment cases alleging excessive force. Plaintiffs "must prove the officer intended to commit acts that constituted a seizure in the first instance." But intent is not relevant "as to the officer's underlying motivation for his actions during the seizure. ... An officer's good intentions are immaterial and will not justify an objectively reasonable use of force." In other words, "objectively unreasonable actions during the course of a seizure, even if based on a mistake, are unconstitutional." Once a seizure is initiated, the officer's objectively unreasonable conduct may violate the Fourth Amendment, even if he did not intend to injure the plaintiff. While Fourth Amendment cases require intentional actions by police officers, "in the excessive force context, the intent in question can only be the intent to perform some action, not that a particular result be achieved." In reaching these legal conclusions, Judge Chin draws in part from cases from around the Circuits.

What this means for Dancy is that the district court should not have charged the jury that "if the defendant's acts were merely negligent ... the jury must find that the plaintiff has established his claim." The jury could have believed from this instruction that an officer must have intended the results of his actions or consciously disregarded their consequences. Dancy could have won this case simply by proving that Williams applied some degree of force and did so deliberately. The jury was not able to conclude that Williams intentionally used force, but that he was not liable if he did not intend that the force cause Dancy's injuries. 

Under the district court's instruction, the jury could have concluded that there was no violation because Williams did not intend to use enough force to break Dancy's jaw. But given Williams's admission that he intentionally used some amount of force on Dancy, it is irrelevant whether he intentionally applied force sufficient to break Dancy's jaw or otherwise intended to injure Dancy.

2d Circuit upholds $196,500 damages award in false arrest/excessive force case (Dancy v. McGinley Part II)

This is Part II of my discussion of Dancy v. McGinley, a recent decision from the Second Circuit that upheld a false arrest judgment in favor of the plaintiff, whose case was sufficiently clear-cut that the trial court ruled in his favor mid-trial, taking the case away from the jury entirely. Part I of my discussion is at this link. In the interests of full disclosure and to dispel any suspicion that this post was written by the Russians, I co-litigated this case with Christopher Watkins, Esq.

Elting did not just allege that Police Officer McGinley had falsely arrested him. He also said that McGinley had caused him to suffer physical injuries. So we have an excessive force claim, as well. When the trial court ruled as a matter of law that McGinley had falsely arrested Elting, she ruled that any injuries sustained by Elting as a result of the arrest were unjustified as a matter of law. Here is Elting's evidence of the physical injuries:

Elting testified that, after McGinley stopped them and said that he suspected Dancy of criminal activity, Elting took out his phone to call his mother -- a local corrections officer. McGinley told him to put his "fucking phone away." McGinley then grabbed Elting by his left arm and spun him around to the ground. Elting landed on his shoulder and his face hit the ground. McGinley twisted Elting's left arm behind his back, and pressed his knee into Elting's back. At the time, McGinley weighed between 205 and 220 pounds while Elting weighed 140 pounds. Other officers arrived and began punching Elting in the back while he was on the ground. Dancy testified that he saw McGinley punch Elting in the ribs while Elting was held to the ground. Another officer punched Elting in the face, causing his head to hit the pavement. He was then handcuffed and lifted up, at which point he saw another officer pointing a gun toward him.

At the police station, Elting was interrogated about the robbery and detained for about eighteen hours. After his mother bailed him out, Elting went to the emergency room. "He was in pain and had bruises and abrasions on his head, face, and torso. There was swelling on the right side of his head and left side of his face. The hospital conducted a CAT scan and chest x-ray, which revealed no fractures. The emergency room medical records confirm the bruising to the right side of head, face, and torso, with the recommendation to allow for natural healing and to take Advil to relieve pain. Its physical assessment documented the following: left eye pain, head pain, bruising on cheeks, elbow, back, swelling of his head and temporal area, tender upper and lower back, and abrasions to his nose and hand." Soon afterwards, "Elting began complaining of pain while urinating, and his mother took him to see his regular physician. Elting reported the same injuries as well as long-lasting migraine headaches and soreness. He reported back pain over his right kidney. His physical injuries healed after two to three weeks."


Elting missed a week of school as a result of the incident, and he sought counseling. The experience "changed [his] outlook on a lot of things," and that he lost "trust [in] the police" and his mother's coworkers in law enforcement. "At the time of trial, he continued to seek counseling as a result of the incident because he 'always expect[s] the worst to happen,'" and he became a withdrawn young man who underwent a personality change, according to Elting's mother.

The jury awarded Elting $115,000 for the false arrest and $100,000 for the excessive force. The trial court reduced the excessive force damages to $81,500. The Court of Appeals (Chin, Livingston and Carney) upholds the $81,500/$115,000 damages award. The general rule is that we defer to the jury's views on damages unless the award "shocks the conscience." We also defer to the trial court's damages assessment in reducing the award. Appellate courts will look to comparable cases in determining whether the damages are too high.

Elting's damages award falls in line with comparable cases, the Second Circuit holds, even if no two cases are alike. Judge Chin notes in particular that Elting suffered "substantial" damages from the false arrest, particularly because of his age -- 17 years old -- and Second Circuit authority that recognizes that "an event such as he experienced here has a deeper and lasting impact on a seventeen-year old than an adult." The Court notes that Elting has lost trust in law enforcement even though his mother is a law enforcement officer. This prompts the Court to draw from Justice Sotomayor's dissenting opinion in a recent Fourth Amendment decision: ""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." 

Court of Appeals upholds false arrest judgment (Dancy v. McGinley Part I)

The Court of Appeals has upheld the judgment in favor of an excessive force/false arrest plaintiff who prevailed at trial after the district court granted the plaintiff's motion for Rule 50 relief. The second plaintiff, who lost at trial, wins a retrial with new jury instructions on his excessive force claim. This case raises a variety of issues, to be discussed in a series of blog posts.

The case is Dancy v. McGinley, decided on December. (I handled this appeal along with lead counsel, Christopher Watkins, Esq.). We start with plaintiff Elting, who walking down the street one night in Poughkeepsie with co-plaintiff Dancy, when a police officer, McGinley approached them after hearing about an attempted robbery elsewhere in the city. Dancy was the suspect, not Elting. Elting and Dancy are black. As McGinley approached the plaintiffs, they looked over their shoulder his police car. After McGinley exited his car, Elting called his mother on his cell phone, ignoring McGinley's directive to put it away (the officer thought the phone posed a safety threat and might be used to interfere with the investigation). McGinley then placed his hand on Elting and said Elting then tried to run. They both ended up on the ground, and Elting suffered physical injuries. Elting was charged with Obstructing Governmental Administration.

At trial, the district court issued two rulings. First, the court said Elting was entitled to judgment as a matter of law because McGinley had no basis to even stop and detain Elting. This means this issue did not even reach the jury and Elting won his claim challenging the Terry stop. The court also said McGinley lacked probable cause to charge Elting with Obstructing. McGinley challenges these rulings.

Most police cases brought under Section 1983 are resolved by the jury (if the court does not dismiss them on summary judgment). It is the rare case where a Section 1983 plaintiff wins the case on a mid-trial Rule 50 motion. The Second Circuit (Chin, Livingston and Carney) says the district court got it right on both rulings.

1. First, the Second Circuit says McGinley had no basis to even detain Elting in the first instance. McGinley justified the detention because (1) Elting was walking down the street with someone who in some ways looked like the suspect; (2) the attempted robbery took place a few blocks away; and (3) Elting and Dancy looked over their shoulders when McGinley's police car approached. None of these arguments satisfy even the lenient standards governing Terry stops under the Fourth Amendment. Judge Chin notes in part that "the mere presence near someone who somewhat matches a vague description is not a reasonable basis for suspicion," and it was not enough to say the attempted robbery took place a few blocks away, particularly since Poughkeepsie has a sizable black population and a Google maps printout shows this was the busy part of town, where you would expect blacks to walk down the street at random. There is also nothing suspicious about looking over your shoulder to look at an approaching police car.

2. Nor did McGinley have probable cause to arrest Elting for Obstructing Governmental Administration, the Second Circuit held, as Elting's use of his cell phone does not mean he was obstructing any investigation, and he was under no legal obligation to speak with McGinley or cooperate with him in the first instance. Second, "Elting's actions could not have constituted obstruction of governmental because McGinley's Terry stop and frisk were unauthorized."

What strikes me about this opinion is how the Second Circuit repudiates McGinley's justifications for the Terry stop and the arrest. You do not see this often. Even more notable is the "Black Lives Matter" moment we see along the way. Judge Chin quotes from Justice Sotomayor's recent dissenting opinion in a recent Fourth Amendment case in stating:

Because subjective intentions are irrelevant to this analysis, we do not assess what was motivating this police officer when he decided to stop Elting. But we do know that, objectively speaking, he lacked reasonable suspicion, and so violated the Fourth Amendment by detaining Elting without an adequate basis. As a result of this suspicionless stop, an African-American teenager was arrested, jailed, and subjected to "the humiliations of [an] unconstitutional search[]." Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting). Circumstances like these remind us that specificity in articulating the basis for a stop is necessary "in part because according the police unfettered discretion to stop and frisk could lead to harassment of minority groups and 'severely exacerbate police-community tensions.'"

Elting's case went to the jury on damages. The jury awarded him over $200,000.00 in damages. The district court reduced that award somewhat, to be discussed in the next blog post. 

Appellate Division upholds retaliation findings in SDHR case, but with low damages

We all know about the EEOC, the federal agency that investigates and tries to resolve employment discrimination cases. Less well-known is the State Division of Human Rights, the EEOC's counterpart in New York State. Some people file with the SDHR instead of the EEOC. If the SDHR issues and "probable cause" finding, the case can proceed to an evidentiary hearing before an administrative law judge. The losing party can then appeal to state court. That's what happened here, with interesting results.

The case is In the Matter of Delkap Management, Inc. v. New York State Division of Human Rights, issued by the Appellate Division Second Department on April 5. The plaintiff moved into a housing complex in 1988. She has rheumatoid arthritis. In 2010, her daughter moved in, bringing a dog with her, in violation of the "no dog" policy. Plaintiff sought a reasonable accommodation that would allow her to keep the dog. Her doctor also sent the property management people a letter asking that she keep the dog as well as her parking space near her apartment due to her disability. Defendant instead directed her to remove the dog and fined her for breaking the rules. After plaintiff filed a SDHR complaint, management told plaintiff she would be evicted if she did not get rid of the dog and it revoked her parking privileges. An SDHR judge ruled in plaintiff's favor on her disability discrimination and harassment claims and fined the housing management company.

The Second Department resolves this appeal as follows:

1. The discrimination claim is thrown out even though the SDHR ALJ ruled in plaintiff's favor. While she "demonstrated that she was disabled and was a shareholder in the Coop" and "submitted evidence that the dog helped her with her symptoms by easing her stress and causing her to be more active," she "failed to present medical or psychological evidence sufficient to demonstrate that the dog was actually necessary in order for her to enjoy the apartment." Why is this? Because plaintiff "had resided in the apartment for more than 20 years without the dog. Moreover, the complainant was diagnosed with her disability several years prior to the dog being brought to the apartment by the complainant’s daughter when she moved in with the complainant. The dog was present in the apartment for only two weeks before the complainant asked the Board for a reasonable accommodation." If you are familiar with how federal appellate courts review trial court verdicts, this reasoning seems out of place. It looks like the Second Department is independently reviewing the evidence, which the appellate courts in New York are allowed to do.

2. The retaliation verdict stands, however. Plaintiff proved that she participated in the protected activity of filing an SDHR discrimination complaint, and there was a causal connection between the protected activity and the petitioners’ retaliatory conduct, which included taking away the complainant’s designated parking space for a nine-day period, refusing to accept her maintenance checks, filing eviction proceedings against her, falsely informing her that the SDHR had ruled in the petitioners’ favor, and directing her to immediately remove her dog from her apartment." You read that right. After plaintiff filed her SDHR charge, defendant falsely told her that the SDHR had ruled against her even though it had not done so. Plaintiff also proved she suffered adverse actions, which had caused her to suffer the following:

The complainant established that the adverse action taken by the petitioners caused her
to be confined to her home for the nine days that the designated parking space was taken from her because of the distance between her home and the alternative, designated space assigned to her, that she had to defend against eviction proceedings, and that she was directed to immediately remove the dog which caused her to move out of her apartment with her dog. In response to the complainant’s prima facie showing of retaliation, the petitioners failed to present legitimate, independent, and nondiscriminatory reasons to support their actions.

This reasoning is more like what we see in the federal appellate courts in reviewing a favorable jury verdict.

3. But consider what happened with the damages. The SDHR awarded plaintiff $5,000 in mental anguish and $10,000 in punitive damages, plus a $5,000 penalty against defendant, to be paid to the State. Since only the retaliation claim survives appeal, that award has to be modified. In itself, the original award is modest, but par for the course in the SDHR, which does not allow plaintiffs to break the bank. Here is now the Second Department summarizes the pain and suffering on the retaliation claim:

Here, the petitioners retaliated against the complainant by revoking her parking privileges in connection with her designated parking space after she filed an action with the SDHR. The petitioners also moved to evict the complainant and caused her to move out of her home by informing her, erroneously, that the SDHR had ruled against her and that she had to immediately remove her dog from her apartment. The complainant testified that, as a result of the petitioners’ retaliatory conduct toward her, she experienced mental anguish during the period of time that she was trapped in her apartment due to the loss of her designated parking space, when she had to go to housing court for the eviction proceedings, and when she moved out of her apartment due to the petitioners’ false directives that SDHR had ruled against her and the dog had to be immediately removed. The complainant also showed that the stress caused by the mental anguish exacerbated her physical condition and, on March 24, 2011, she was admitted to the hospital complaining of nausea and experiencing palpitations.

This looks like serious pain and suffering, no? The Appellate Division says it is worth no more than $2,500. The Appellate Division also thinks the punitive damages award cannot exceed $2,500. The same amount applies to the civil penalty that defendant pays to the state. The total monetary result is $7,500. A jury would have awarded much more money than this.