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.

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.

Brownstone party arrests yield actionable false arrest claims

This false arrest claim saw the plaintiffs arrested for trespass when they went to an empty house in New York City for a party. The Second Circuit reverses summary judgment and finds that a jury may rule in plaintiffs' favor on their false arrest claim because the police did not conclusively establish that they had probable cause to think the house was abandoned.

The case is Mitchell v. City of New York, decided on October 28. The police were familiar with the brownstone, and in connection with a prior police call, they went inside and it looked empty. But a few weeks later, upon seeing people on the property, the police went inside and saw about 30 people inside with a bar, disco lights, a big TV, some couches and an electrical thingamajig hooking up the house's electrical supply from an outside location. When no one at the party answered when the police asked who owned the house, everyone got arrested. The question here is whether the police had probable cause to think the house was abandoned such that they were able to arrest everyone for trespass.

The Second Circuit (Winter, Pooler and Sack) says "it appears that no member of the NYPD made serious efforts to verify the legal status of the brownstone, i.e., the existence of a person or entity with a claim of occupancy of ownership, the property's status under the FTAP, or the lack of any claim or other status." FTAP is a City program that allows the police to take custody over empty properties when people complain about riff-raff using them. The officers did not investigate the ownership status of the property and only assumed it was abandoned. In fact, there was a "for-sale"sign on the property, suggesting that someone claimed ownership of the brownstone. The only basis for the officers to believe the property fell within the FTAP program was word-of-mouth. As for the extension cords, the Court says, that could have been explained by someone's desire to protect the circuits in the brownstone. Moreover, the officers only called the realtor selling the property once to see if it was abandoned; after leaving a voice message, no one followed up with the realtor. While everyone at the party was silent when the police asked who owned the property, that "does not necessarily establish that the officers had a reasonable factual basis for thinking that the brownstone was abandoned."

The facts of this case suggest it was a close call, and it took the Court of Appeals 18 months to decide this appeal, which is a mighty long time. What strikes me about this case is that, at first glance, the house properly did look to be abandoned, but the police did not try hard enough to establish that it was in fact abandoned. The Second Circuit cites a New York Court of Appeals ruling, Colon v. City of N.Y., 455 N.E.2d 1248, 1250 (1983), which says “the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause.” This is a correct statement of the law, but those who handle these cases on a regular basis will tell you that a common legal principle that turns up in in false arrest rulings is that the police are not required to undertake a full investigation before determining they have probable cause to arrest someone. That principle does not apply in this case, which is remanded to the district court to resolve the qualified immunity issue.

Court strikes arbitration clause in Collective Bargaining Agreement

Collective bargaining agreements sometime contain language that says that any legal disputes between workers and management have to be handled in arbitration, not court. Assuming the employees even know the CBA says this, they probably give it little thought until they decide to file a discrimination lawsuit against the employer. When they make that decision, their lawyer will tell them that the CBA's arbitration agreement says they cannot go to court and have to proceed in arbitration. For various reasons, most plaintiffs' lawyers prefer court to arbitration, and defendants prefer arbitration, or they would not fight so hard to keep these claims out of court. But the arbitration language has to be done right, or else the employer has to defend the case in court. This arbitration clause was not good enough, and the plaintiffs win the appeal.

The case is Lawrence v. Sol G. Atlas Realty Co., decided on October 28. The courtroom guarantees certain procedures and protections that arbitration cannot provide. That's why arbitration agreements have to be exquisitely drafted, to ensure the employees know exactly what they're getting into when they ratify the CBA. The Supreme Court has therefore said that in order for a mandatory arbitration agreement in a CBA to prevent the employee to litigating her statutory claims in court (like Title VII or the ADEA), "the inclusion of such claims must be unmistakable, so that the wording is  not susceptible to a contrary reading." To put it in layman's terms, the arbitration provisions of the CBA must be as clear as the river stream on a winter's day and written so that normal people can understand it.

This CBA did not satisfy that standard. This is what it says:

There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability of an individual in accordance with applicable law, national origin, sex, sexual orientation, union membership, or any characteristic protected by law. Any disputes under this provision shall be subject to the grievance and arbitration procedure (Article V).

Article V is the mechanism of arbitration, which says the employee must first file a grievance with management, and that if the grievance cannot be settled, it goes to the Office of the Contract Administrator. It goes on to say that “[t]he procedure herein with respect to matters over which a Contract Arbitrator has jurisdiction shall be the sole and exclusive method for the determination of all such issues."

Since this arbitration clause is too general and does not say that claims that might be brought under Title VII, Section 1981 or the ADEA must be arbitrated, its language was not "clear and unmistakable" to deprive employees of their right to file a lawsuit. While the "No Discrimination" provision prohibits discrimination and compels arbitration of "any disputes under that provision," that only creates a contractual right of employees to be free from unlawful discrimination that is subject to arbitration. But "a contractual dispute is not the same thing as a statutory claim, even if the issues involved are coextensive." Indeed, the Second Circuit (Jacobs, Livingston and Rakoff [D.J.]) says, "the No Discrimination provision may plausibly be interpreted to require arbitration of contractual disputes only." But it says nothing about "claims" or "causes of action" and cites no statutes. 

Title VII: the cover up is worse than the crime

It often happens that employees who complain about workplace discrimination don't actually have a viable discrimination claim, but the employer's vindictive response to the internal discrimination complaint hands the plaintiff a retaliation case on a silver platter. That is what happened here.

The case is Vogel v. CA, Inc., a summary order issued on October 25. Vogel worked for a computer software company. At some point, he was recruited by Kozak to join the company's India Service Provider Team, eventually answering to Perlman. In early 2010, Vogel complained that he was being treated differently because of his race. Afterward, Perlman treated him badly and Vogel was fired because he did not meet his sales quotas. Here is what the Second Circuit (Lohier, Livingston and Rakoff [D.J.]) does with the case:

1. Vogel has no underlying discrimination claim even though supervisors uttered racial comments. While Kozak said that "Indians would rather work with Indians," Kozak said this shortly before he recruited Vogel to work on the India Service Provider Team, undercutting any inference of discriminatory intent. And it was Perlman and not Kozak who allegedly treated Vogel like garbage until the date Vogel was fired. While Perlman said that "Vogel does not work well and play well with the guys in India," that proves nothing because the record shows that Vogel had a tense working relationship with his team members in India. Summary judgment is affirmed on the discrimination claim.

2. The retaliation claim is a horse of a different colour. This is what I mean when I say the cover up is worse than the crime. Think of Watergate. Nixon's people broke into the Democratic headquarters. That was bad. But it was the cover-up -- where Nixon obstructed the criminal investigation into the break-in -- that led to Nixon's resignation, spending the final years of his life in New Jersey. What happened to Vogel was no Watergate, but there will be a trial in this case, and that's bad for the defendant. The issue is whether Vogel can prove an adverse employment action, which exists if the employer's response to his good-faith discrimination complaint would dissuade a reasonable employee from complaining about discrimination in the future. Perlman singled out Vogel for hostile treatment, harassing him on conference calls, making jokes about him in front of colleagues, removing him from meetings, yelled at him, called him names, told him his actual performance was irrelevant and repeatedly said he did not want Vogel on his team. Vogel was fired 11 months after complaining about discrimination. The Court of Appeals says this is enough for a retaliation claim, as Vogel testified that Perlman kicked him around shortly after he complained about the discrimination.

This is interesting reasoning, as many claims that management hounded the plaintiff following a discrimination claim fail on the adverse action element of the prima facie case. But if you put an employee through the wringer, that can be enough to dissuade a reasonable employee from complaining.

Court of Appeals affirms City's sign law restriction

Political signs remain the easiest and cheapest way to promote your views. We know that during election season, when lawn and roadside signs pop up like dandelions. But while this is pure First Amendment speech, the government does have some authority to regulate them, particularly if the regulations are content-neutral. That principle dooms a lawsuit filed by a woman who posted an illuminated peace sign in her 17th floor condominium window in New York City.

The case is Vosse v. City of New York, a summary order decided on October 14. Under the City's rules, illuminated signs cannot be posted more than 40 feet off the ground. The issue is whether the restrictions constitute a legitimate "time, place or manner" speech restriction. Under T-P-M restrictions, the government can regulate speech in a content-neutral way (without regard to the message conveyed by the sign) if the regulation is narrowly-tailored and leaves the speaker ample room to communicate that message in other ways. The T-P-M standard gives the government much leeway to regulate speech, in my experience.

Plaintiff says the restriction is not narrowly tailored to serve a significant government interest. Finding otherwise, the Second Circuit (Lynch, Droney and Reiss [D.J.]) says the City has a legitimate interest in maintaining an aesthetically pleasing landscape and preserving neighborhood character. The primary argument on appeal is that the City's rules are not narrowly tailored because the rules exempt other signs, like flags, banners and pennants, which therefore get favorable treatment. The Court accuses the plaintiff of making a content-based discrimination argument, that is, that, the rules favor some signs over others based on the content of the sign. But the issue of content discrimination is not actually before the Second Circuit on appeal. Instead, the rules are narrowly tailored, the Court says, because "a statute or ordinance need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns.. The Court further explains:

If Vosse is correct that the ordinance exempts civic organizations from the general non-illumination requirement, that would show that the city could regulate more speech to further its aesthetic goals, but not that the ordinance was so underinclusive as to violate the First Amendment. The district court therefore correctly decided that the relevant provisions of the Zoning Resolution are narrowly tailored to serve a significant governmental interest.

Plaintiff also says the City's rules deny her ample alternative means to promote her message, because the Supreme Court in 1994 said that residential signs are sacrosanct. That argument doesn't work, the Circuit says, because plaintiff can post her sign without lights. While plaintiff says an non-illuminated sign would be hard for passers-by to see, that argument fails, the Court says, because "the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired."

I wondered why the issue of content-based discrimination is not before the Second Circuit in this appeal. The answer is that the Court of Appeals resolved that issue in an earlier appeal, affirming the district court's holding that plaintiff has no standing to challenge the rules on that basis. Here is the district court's reasoning from 2013 on that issue:

if the Court found the exemption in Section 32-62 unconstitutional, the Court could remedy the violation in only one of two ways. First, the Court could simply strike the exemption as a whole, meaning that the law would penalize everyone for displaying flags, banners, or pennants at certain heights. Second, the Court could strike only the limitations on the types of lots that benefit from the exemption — "any zoning lot used primarily for community facility uses of a civic, philanthropic, educational or religious nature." Z.R. § 32-62. Choosing this option would grant everyone the benefit of the exemption relating to flags, banners, and pennants. Regardless of the Court's choice, the plaintiff here would receive no relief with respect to the monetary injury that she claims to have suffered. The first potential remedy — simply removing the exemption for the kind of lots that currently are exempt — would not negate the plaintiff's statutory violation, so she would still have to pay the fine assessed. Alternatively, expanding the exemption for the display of flags, banners, and pennants to all lots would similarly not negate the plaintiff's violation since she did not display a flag, banner, or pennant. Instead, she posted an illuminated sign. Plaintiff has never contended that her sign is a flag, banner, or pennant, and no evidence in the record suggests that the plaintiff's sign was a flag, banner, or pennant. Therefore, plaintiff lacks standing on redressability grounds.

2013 U.S. Dist. LEXIS 169098, at *6-7 (S.D.N.Y. Nov. 6, 2013).

Is this reasoning correct? Courts strike down sign laws all the time as content-based, requiring the government to return to the drawing board to get it right through an amended law that does not discriminate based on content. Striking down a law as unconstitutional under the First Amendment does not mean anyone can post whatever sign they want, unless the municipality wants it that way by declining to amend the law. As for the financial penalty, striking down the law would negate the penalty as a content-based punishment. As for the argument that plaintiff did not post a banner or pennant, courts have held that they are comparable to noncommercial signs (like peace signs) because they all convey a message. If anything, doesn't a peace sign enjoy greater First Amendment rights than a Yankees banner?

Court rejects amended complaint challenging 2011 Occupy Wall Street arrests

The protesters tried to cross the Brooklyn Bridge as part of the 2011 Occupy Wall Street protest. This resulted in mass arrests for disorderly conduct. The case has already been the Court of Appeals, which held in 2015 that certain police officers were entitled to qualified immunity because they had probable cause to make the arrests. The case returns to the Second Circuit as plaintiffs try to name additional police defendants to the case. The Court of Appeals rejects that effort.

The case is Garcia v. City of New York, a summary order decided on October 13. In the first appeal, the Court of Appeals said the officers were immune from suit because a lawful order was given for the protesters not to cross the bridge. Not all the protesters heard this directive. The protesters further claimed the officers encouraged them to cross the bridge, and then arrested them anyway. The Court held that it was not for the officers to speculate about the state of mind of the protesters. It was enough for the officers to reasonably believe the protesters had committed disorderly conduct, even if there was a misunderstanding about what the police did and said.

This time around, the plaintiffs say that other officers, Purtell and Esposito, can be held liable because they "did not deploy appropriate police tactics to prevent marchers from following the line of officers down the roadway portion of the Bridge," and that Esposito directly participated in the false arrests, and that the Police Commissioner did not properly supervise him.

Plaintiffs’ main contentions are (1) that Chief Esposito was on the scene and knew that many of the marchers did not hear the instructions to disperse, yet made the decision to arrest anyway, (2) that actions of Esposito and other officers conveyed implicit permission to march on the roadway, (3) that Esposito, the City, and the NYPD had other methods to prevent Plaintiffs from proceeding on the bridge and chose not to use them, and (4) that the City and NYPD had policy of escorting unpermitted protests but then arresting the participants without notice. But none of these allegations defeats probable cause for the arrests.

These allegations are not enough to amend the Complaint to name these officers. The Court of Appeals (Lynch, Droney and Reiss [D.J.]) says that plaintiffs did not plausibly plead that Esposito deliberately ignored facts that justified the marchers' takeover of the roadway.  As the Court of Appeals has previously explained, "the scene was chaotic, the retreat of police officers on the Bridge was not an unambiguous invitation to follow, and many marchers continued to funnel onto the sidewalk path." While plaintiffs now say that Esposito was aware of the protesters' state of mind, i.e., that they did not intend to violate the law, the Second Circuit reaffirms the principle that the state of mind of the demonstrators is irrelevant to the question of probable cause, even if it might be a defense to the underlying criminal charge.

How to plead an ADA discrimination claim

This case teaches us a thing or two about pleading standards and jurisdiction. Boring, I know, but important.

The case is Soules v. Town of Oxford, a summary order decided on October 6. Plaintiff is a young police officer who claims to have PTSD from service in the Army. He also has a bad knee. Plaintiff sued his employer after he was placed on paid administrative leave following his employer's directive that he undergo a mental fitness examination. Additionally alleging his employer solicited false complaints from citizens about his job performance plaintiff claims the State discriminated against him because of his disability and also subjected him to intentional infliction of emotional distress (IIED), a state law claim.

The district court said the complaint does not state an ADA claim because plaintiff did not allege his his disability substantially affected any major life activities, a necessary element for any ADA claim. The Court of Appeals (Newman, Winter and Cabranes) affirms on that point. I would think that PTSD would impair any number of life activities, but assumptions are not evidence, and in the post-Iqbal world of particularized and plausible pleading standards, you'd better throw everything you've got into the Complaint.

The district court also said plaintiff does not have an IIED claim. As any law student knows, these are difficult claims to win. Only the most outrageous actions may predicate an IIED claim. Otherwise, the courts fear, everyone would be suing everyone else for offensive conduct. The district court did say that it had no subject matter jurisdiction over the state law IIED claim because it had already dismissed the federal claims. The trial court proceeded to analyze the IIED claim on the merits, ruling that the employer's actions, including belittling and physically intimidating plaintiff and placing him on administrative leave, are not sufficiently extreme and outrageous enough for liability. The district court then dismissed the IIED claim.

This case would make for a good bar exam question: what did the district court do wrong on the IIED claim? What went wrong is that once the district court decided it had no subject matter jurisdiction over the state law claim, it had no authority to dismiss it on the merits. It had to dismiss the IIED claim without prejudice, allowing plaintiff to bring that claim in state court. The district court's analysis of the IIED claim is meaningless and has no legal effect.