A Festivus mystery

This case drew my attention because one of the defendants is "Festivus for the Rest of Us, Inc." Unfortunately, the case does not deal with misanthropic endeavors or Christmas-time family arguments. It addresses deadlines for filing a notice of appeal in criminal cases. It also addresses whether certain criminal proceedings in which third parties claim an interest in forfeited property are civil or criminal.

The case is United States v. Bradley, issued on February 16. This is a wire fraud and tax evasion case.. The Second Circuit (Leval, Calabresi and Cabranes) holds the Court has no jurisdiction over the appeal because the notice of appeal is untimely. This holding grows out of the finding that a section of the US Code dealing with the third-party's interest in forfeited property is a civil provision, which carries a strict deadline for notices of appeal, 60 days when the US government is a party. While these cases proceed as criminal matters, the forfeiture section is conducted separately from the criminal prong, allowing third parties to stake their claim to forfeited property. The civil appellate rules therefore apply, as other Circuits have held.

Lurching further into the weeds, the Court of Appeals notes that appellants are appealing from a Rule 60 motion that issued on December 30, 2015. Yet the clock for the notice of appeal actually started to run on August 20, 2015, when the district court initially issued its opinion in the case. "The fact that the district court reserved the right to explain its August 20th decision until later, and gave that explanation on December 30, 2015, does nothing to prevent the clock from running." The August 20 order denied the Rule 60 motion. While the extended December 30 ruling explained the August 20 ruling, December 30 did not trigger the deadline, as that ruling did not change matters of substance or resolve an ambiguity from the earlier ruling. The December ruling merely reaffirmed the August ruling. The notice of appeal had to be filed 60 days from the August ruling.

So what about Festivus? It  appears in the caption but there is nothing about Festivus in the opinion. I poked around the docket sheets and find nothing. This is not a Festivus miracle but a Festivus mystery. As conceived by George Costanza's father, Festivus involved the airing of grievances. This case highlights a practice that would be appropriate for any Festivus gathering, at least one involving lawyers. Some judges will issue a brief ruling on a motion simply stating a motion was granted or denied before then issuing a written decision at a later date. So the parties know if they won or lost but they have no idea why. This is a frustrating practice for the lawyers, but it's particularly frustrating for the clients who want to know what happened. They may find out months later, when the judge issues a ruling that details the reasons. That is what took place here. The clients waited four months for the written decision. What this ruling from the Second Circuit means if the interested parties had to file a notice of appeal from the August 2015 ruling that contained no explanation for the adverse ruling. Yet, they (or their lawyers) might not think an appeal is worthwhile until they see the court's reasoning on the motion. But when that time comes, it is too late to take an appeal.

The lesson here in federal practice is to file the notice of appeal once that order rolls in. You can always withdraw the appeal later on if you decide you cannot get around the trial court's reasoning. Sometimes we anticipate what the trial court will say when it dismisses the case, but you don't know for sure, as the court may dismiss the case on grounds that no one argued, and it may do so on some point that you now realize you cannot get around. 

Second Circuit holds that sexual orientation discrimination violates Title VII

The Second Circuit Court of Appeals has ruled that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation. The en banc ruling overturns prior Second Circuit cases that held otherwise. The Second Circuit joins the Seventh Circuit in ruling that sexual orientation discrimination is a form of gender discrimination.

The case is Zarda v. Altitude Express, issued on February 26. I helped write the brief in the Second Circuit. Title VII does not mention sexual orientation as a protected class. But it does prohibit gender discrimination. For years, the federal courts declined to hold that discrimination against gays and lesbians violated Title VII. Congress also rejected efforts to amend Title VII to add sexual orientation as a protected class. But after the EEOC in 2015 decided that this form of discrimination does violate Title VII, the federal courts took a fresh look at this issue, and in 2017, the Seventh Circuit held in the Hively case that this form of discrimination violates Title VII. Hively was an en banc ruling. So is the Zarda ruling.

Writing for the majority, Chief Judge Katzmann says the following: (1) sexual orientation discrimination is discrimination "because of sex" "because one cannot fully define a person's sexual orientation without identifying his or her sex" and "sexual orientation is doubly delineated by sex because it is a function of both a person's sex and the sex of those to whom he or she is attracted." (2) discriminating against an employee because he is gay necessarily takes into account that employee's sex, because sexual orientation is a "proxy" for sex. In other words, "a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination." (3) Gender stereotyping also factors into the analysis. Title VII already prohibits stereotyping. In this instance, discrimination on the basis of gender is rooted in stereotypes about how men and women should live their lives. Stereotypical male behavior has the man attracted to women. Gays and lesbians undercut that stereotype. (4) This form of discrimination also constitutes associational discrimination. The Second Circuit has already deemed it illegal to fire a man because he is engaged to a black woman. The reasoning is that the man is punished for his interracial association. The same logic applies to gays who are fired because they associate with men.

Judge Katzmann is an authority of statutory construction, having written scholarly books on the subject. His 69-page ruling parses Title VII and its objectives. The conclusion of the majority ruling rejects the argument that Title VII cannot reach this far because Congress has rejected efforts over the years to add sexual orientation as a protected class. But, as Judge Katzmann notes, reading tea leaves into congressional inaction is tricky because bills die in Congress for many reasons. It is also not enough for defendants to argue that Congress did not have sexual orientation discrimination in mind in 1964 when the Act was passed. As the majority notes, courts have interpreted Title VII to cover subsets of gender discrimination even though Congress did not endeavor to outlaw that behavior, including sexual harassment, which the Supreme Court held violates Title VII in 1986, more than 20 years after Title VII was enacted.

Justice Cabranes issues a concurring opinion (along with some of the other judges). His is brief, writing:

This is a straightforward case of statutory construction. Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of . . . sex.” Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII. That should be the end of the analysis.

The en banc decision was resolved in a 10-3 vote. Judge Lynch writes the principle dissent, devoting 74 pages of legal analysis to the debate. Judge Lynch opens the ruling by wishing that Congress had already resolved this issue, but he goes on to say the courts have no role in extending Title VII's protections to include sexual orientation. He writes:

Speaking solely as a citizen, I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.

I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half century ago — until I actually woke up and realized that I must have been still asleep and dreaming. Because we all know that Congress did no such thing.

For now, the Second and Seventh Circuits interpret Title VII this way. The Eleventh Circuit recently held that Title VII not prohibit sexual orientation discrimination. The other circuits held years ago that Title VII does not reach this far, but they have not had the opportunity to reexamine their precedents in light of the new analyses that have been making the rounds on this issue, primarily by the EEOC. Whether the Supreme Court will take up this issue, for now, is speculation.

NYC gun law does not violate Second Amendment

Mass shootings always bring the Second Amendment to the forefront. But contrary to popular opinion, Second Amendment rights are not absolute. We see how that all works out in a recent Second Circuit decision that upholds a New York City gun regulation against a Second Amendment challenge.

The case is New York State Rifle & Pistol Association v. City of New York, issued on February 23. The City issues "premises licenses" for gun owners. These licenses prevent you from removing the gun from the address on your license (usually your home) except that you can transport the gun to authorized shooting ranges, unloaded, in a locked container, with the ammunition to be carried separately. (There is also a separate concealed carry regulation for people who can prove they need the guns outside the home).

Constitutional law is famous for its multi-part constitutional doctrines that courts use to analyze  legislation and regulations. After the Supreme Court issued its Heller ruling in 2008, deciding for the first time that the Second Amendment confers an individual right own a gun in certain circumstances, courts review gun regulations under "intermediate scrutiny," which gives the government some leeway on regulating guns in light of the competing interests between the government and gun owners. Some gun rules are also analyzed under strict scrutiny (which often strikes down the regulation) when the restrictions "operate as a substantial burden on the ability of law-abiding citizens to possess and use a firearm for self-defense (or for other lawful purposes). The Second Circuit reviews the NYC rules under intermediate scrutiny because the rule does not substantially burden plaintiff's ability to obtain a firearm for the home, and an adequate alternative remains for him to acquire a gun for self-defense. The rule only restricts his ability to take the gun out of the house.

Intermediate scrutiny applies because firearms practice is not itself a core Second Amendment right (as compared to gun ownership to protect your family in the home) and the City does not ban firearms ranges in that jurisdiction. There is at least one authorized range in each of the five boroughs. Under this level of judicial scrutiny, the NYC rules are legal because they seek to protect public safety and prevent crime, and the rules are tailored toward that end. There is evidence that taking the gun out of the city poses a potential public safety risk, as it reduces the likelihood of violence in stressful situations, like road rage, family disputes and crowd situations. In contrast to the evidence NYC has put forward in defending its rules, the plaintiffs have offered "scant evidence demonstrating any burden placed on their protected rights, and nothing which describes a substantial burden on those rights."

Citizens United loses in the Second Circuit

Citizens United -- yes, that Citizens United -- sued the State of New York over its requirement that registered charities must disclose the names of their donors. CU brought this case under the First Amendment, arguing that this rule will chill the speech of donors who want to associate with the organization. The Court of Appeals rejects the challenge and says the regulation is constitutional.

The case is Citizens United v. Schneiderman, decided on February 15. CU raised an interesting argument: that the regulation is like the one struck down by the Supreme Court in NAACP v. Patterson, 357 U.S. 449 (1958), which held the State of Alabama could not force the civil rights organization to disclose its membership list. The NAACP won that case on freedom of association grounds since it espouses dissent beliefs and its members feared violent retaliation from white supremacists. CU uses that case in arguing that it, too, is a controversial organization and its donors fear any public association with it. For this reason, CU argues, the New York regulations must be reviewed under "strict scrutiny," which is the kiss of death in the world of constitutional law.

The Court of Appeals (Pooler, Leval and Newman) sides with New York. Strict scrutiny only applies when the regulations are content-based, that is, they single out organizations because of their speech or inherently discriminate among speakers. The Circuit cites the famous Citizens United campaign finance case from the Supreme Court in making that point. Instead, since this is a content-neutral regulation, the court will review it under "intermediate scrutiny," which requires only that the government show a substantial relationship between the disclosure requirement and a sufficiently important governmental interest.

The New York regulation satisfies intermediate judicial scrutiny. The government has an interest in ensuring that organizations that receive special tax treatment do not abuse that privilege and to ensure that these groups do not use their donations "for purposes other than those they represent to their donors and the public." While law enforcement officials have been known to abuse their power, the Court says, "and there is always a risk that an office charged with care of confidential information will spring a leak . . . , totalitarian tendencies do not lurk behind every instance of a state's collection of information about those within its jurisdiction. Any form of disclosure-based regulation -- indeed, any regulation at all -- comes with some risk of abuse."

Justice Thomas decries Supreme Court's refusal to hear 2d Amendment case

The Second Amendment is front and center these days, as each mass shooting ignites further debate about the rights of gun owners and how society can stop the carnage. Yet, we forget that the Supreme Court only 10 years ago ruled for the first time that the Second Amendment protects individual right to gun ownership. Over the lone objection of Clarence Thomas, the Supreme Court this week decided not to take up another gun case. 

The case is Silvester v. Becerra. Justice Thomas' dissent from the denial of certiorari came down on February 20. The case originates in California, which requires gun buyers to wait 10 days before they can bring the gun home. The trial court said this waiting period violates the Second Amendment because it was not reasonably tailored to promote an important government interest. We call that "intermediate scrutiny," an evidentiary model that helps courts to evaluate the constitutionality of legislative provisions. The trial court said in part that the cooling off period does not cut it because it assumes the gun purchaser has no guns at home and therefore cannot commit an impulsive act with a gun already in his possession. But the Ninth Circuit reversed and struck down the 10-day waiting period because the California law prevents gun violence by creating a cooling-off period. The Ninth Circuit also said that while the research did not isolate the effect of waiting periods on subsequent purchasers, those students "confirm the common sense understanding" that cooling-off periods deter violence and self-harm, and understanding that "is no less true" for subsequent purchasers.

The Supreme Court declines to hear the case. That is no surprise. The Court receives about 7,000 requests per year, and it only takes on about 80-90 cases. But the Court has not been taking Second Amendment cases. We hear much about the Second Amendment these days, but the Court decided the seminal Heller case in 2008, ruling for the first time that the Second Amendment confers an individual gun right.

In his lone dissent from the Court's decision not to hear the case, Justice Thomas accuses the Court of ignoring the Second Amendment and instead favoring claims involving free speech, abortion and Fourth Amendment searches and seizures. All the while, the lower courts are struggling to apply Heller without Supreme Court guidance. It seems clear that Thomas thinks the California law is faulty and that the Ninth Circuit did not sufficiently defer to the trial court's factual findings. But his harshest words are for the other Justices, including the conservatives who usually vote with Thomas. He also criticizes the lower federal courts, which "are failing to protect the Second Amendment to the same extent that they protect other constitutional rights."

If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari.I suspect that four Members of this Court would vote to review a 10-day waiting period for abortions, notwithstanding a State’s purported interest in creating a “cooling off ” period. I also suspect that four Members of this Court would vote to review a 10-day waiting period on the publication of racist speech, notwithstanding a State’s purported interest in giving the speaker time to calm down. Similarly, four Members of this Court would vote to review even a 10 minute delay of a traffic stop. The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.

Violence at municipal board meeting does not give plaintiff a false arrest claim

Civic engagement is a good thing, until someone gets slapped in the face. Then it's a bad thing. In this case, plaintiff got arrested for hitting someone at a town meeting. Following his acquittal, he brought a false arrest lawsuit. The Court of Appeals won't have it.

The case is Marom v. Town of Greenburgh, a summary order decided on January 23. Let's savor the facts of this case together:

The complaint arose from an altercation that occurred following a town zoning board meeting involving Marom’s application for an amended zoning variance. A number of Marom’s neighbors, including Deborah Salerno, objected to Marom’s application. Following the meeting, Marom struck Salerno in the face and was subsequently arrested by Officers Herighty and Knoesel for third degree assault. Marom’s wife, who witnessed the incident, informed at least one officer on the scene prior to Marom’s arrest that Salerno had kicked Marom before he struck her. Salerno described the pain caused by the slap to officers as “excruciating.” Herighty, Knoesel, and a sergeant together made the decision to arrest Marom. The third degree assault charge was reduced to second degree harassment the day after Marom’s arrest; he proceeded to a bench trial and was acquitted of that charge.

Third degree assault in New York involves physical injury, defined as impairment of physical condition or substantial pain. Petty slaps, in contrast, don't count and instead constitute harassment and not assault. Even a red mark or a black eye is not enough for an assault charge. The problem for plaintiff is that the victim

complained to police of pain to her face and neck, and she described the pain as “excruciating.” It is also undisputed that there were marks on Salerno’s face that were observed by the arresting officers. In light of Salerno’s characterization of the pain to the officers as “excruciating,”—a description that officers could reasonably interpret as constituting “substantial pain,” N.Y. Penal Law § 10.00(9),—“it was objectively reasonable for the officer[s] to believe that probable cause existed” with respect to the physical injury requirement, “or officers of reasonable competence could disagree on whether the probable cause test was met.” 

While plaintiff says his wife told the police that the victim kicked him before plaintiff hit her, that does not mean the police lacked probable cause. True, self defense is the kind if justification defense that can get you off the hook, but, as the Second Circuit (Winter, Lynch and Droney) says with understatement, "It is not clear from witness statements that Marom’s response to Salerno’s kick
to his shin—slapping her in the face—was necessary to defend himself or another. Marom’s slap could reasonably be viewed by the arresting officers as an unnecessary—and therefore unprivileged—act of retaliation." Since the police are not required to investigate exculpatory defenses prior to making an arrest, plaintiff's case does not survive summary judgment.

This same plaintiff recently lost another constitutional claim against a different municipality. He was a landlord who hosted an open house. The code enforcement officers showed up and issued him a citation for plumbing violations.The Court of Appeals in that case concluded that "Because Marom exposed his house and sauna to the public when he held the open house, the Defendants did not violate Marom’s Fourth Amendment rights by conducting an inspection and viewing the sauna during the event."

State law malicious prosecution against private citizen claim goes to trial

I often write about federal false arrest and malicious prosecution claims, many of which are dismissed on motions for summary judgment because the legal standards give the police the benefit of the doubt on threshold issues like probable cause. But in this case, the Court of Appeals revives a state law malicious prosecution claim brought against a private citizen. This case highlights the distinctions between federal false arrest claims and state law malicious prosecution claims.

The case is Shen v. City of New York, a summary order issued on February 9. As Shen and his wife left the federal courthouse one day, a photographer, Shapiro, was there covering Shen's court appearance. Shen made punching and kicking gestures but did not make contact with Shapiro, although Shen's arm became entangled in Shapiro's camera strap. An altercation ensued, but the parties dispute who started it. Shen and Shapiro were injured in the altercation. Shapiro then called the police and said that Shen had assaulted him. Shen was arrested and the charges were later dropped.

Chen claimed the police used excessive force against him during the arrest, but the Court of Appeals (Wesley, Parker and Droney) doesn't see it that way. "The undisputed facts thus show that the officers responded to an incident of reported violence by handcuffing Shen, the suspected aggressor, using two sets of handcuffs to accommodate his shoulder injury and in a way that did not result in any further injury to Shen, for (as relevant here) only the brief period of time that it took to place Shen in an ambulance to be transported immediately to a hospital for treatment of his injuries. In these circumstances, the district court correctly concluded that no reasonable juror could find that the officers’ conduct was objectively unreasonable. Shen’s excessive force claim therefore fails as a matter of law."

Moving on the federal malicious prosecution claim, Shen can't sue the police because they were able to rely on Shapiro's account of the fight instead of Shen's account. Section 1983 caselaw allows the police to credit the account of the putative crime victim unless the police have reason to believe they have no credibility. The Court notes that "we have found probable cause where a police officer was presented with different stories from an alleged victim and the arrestee." So the police are off the hook.

But Shapiro is not off the hook on the state law malicious prosecution claim. "In the context of a malicious prosecution claim under New York state law, a plaintiff can defeat a showing of probable cause “by evidence establishing that the police witnesses have not made a complete and full statement of facts . . . to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence[,] or otherwise acted in bad faith.” This exception to the finding of probable cause applies when a private citizen provides false information to the police. Here, since two disinterested witnesses claim that Shapiro and not Shen was the aggressor, and since Shen himself claims he was innocent, "these facts place the veracity of Shapiro's account into substantial question, and prevent summary judgment as to whether there was probable cause for the malicious prosecution claim against Shapiro."

Public access channel in NYC is a public forum under the First Amendment

The Court of Appeals holds that a public access non-profit elevision channel in New York City is a public forum for purposes of the First Amendment, which means it can be sued for suspending individuals involved in public access TV programming from using the corporation's facilities.

The case is Halleck v. Manhattan Community Access Corp., decided on February 9. The public forum doctrine is among the most complicated issues in constitutional law. If an entity is a public forum, the First Amendment places great restrictions on how the entity can regulate speech, especially political speech. We normally associate public forums with public entities, like the lawn in front of City Hall or a public square. But in this case, the defendant is a non-profit TV entity that is not quite a governmental organization.

A public service commission regulation in New York requires a cable TV system with a capacity for 36 or more channels to designate at least one full-time channel for public access use. Manhattan Community Access got the cable franchise in New York City.  Plaintiffs were suspended from the public access channel because of disapproval of the content of a TV program that Halleck had submitted to defendant's programming department. At first glance, you would think plaintiffs could not sue the community access channel because it is a private entity, and the constitution does not regulate private entities. But the Court of Appeals (Newman and Lohier, with Jacobs in dissent) says the channel is a state actor for First Amendment purposes, and therefore may be sued.

The majority parses a lengthy Supreme Court ruling, Denver Areas Educ. Telecomm. Consortium v. FCC, 518 U.S. 727 (1996). That case produced six separate opinions. The Second Circuit adopts the reasoning from Justices Kennedy and Ginsburg, who said "A public access channel is a public forum" as "they provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas." They added that "public access channels are public fora created by local or state governments in the cable franchise."

The Second Circuit concludes that "because facilities or locations deemed to be public forums are usually operated by governments, determining that a particular facility or location is a public forum usually suffices to render the challenged action taken there to be state action subject to First Amendment limitations."  But for plaintiffs to proceed in this case (it was dismissed for failure to state a claim), they must show the individuals behind the censorship decision "have a sufficient connection to governmental authority to be deemed state actors." They do. The Manhattan Borough President designated Manhattan Community Access Corp. to run the public access channels, so the employees of that corporation are not "interlopers in a public forum" but instead "are exercising precisely the authority to administer such a forum conferred on them by a senior municipal official."

The complex nature of this case is reflected in the concurring opinion by Judge Lohier and Judge Jacob's dissent, as well as the flurry of district court rulings that have reached conflicting results. But for now, the law is settled in the Second Circuit on this issue. The case is remanded for discovery.

Telemarketing text-spam case gets the heave-ho

The Telephone Consumer Protection Act prevents telemarketers from sending unwanted texts to your cell phone without consent. If the Act is violated, you can actually bring a lawsuit over this. This case is dismissed because the plaintiff gave his consent.

The case is Latner v. Mount Sinai Health System, decided on January 9. In 2003, plaintiff went to a Mt. Sinai facility for a health checkup. He signed a form that gave the hospital consent to use his health information "for payment, treatment and hospital operations purposes." Eight years later, long after plaintiff most likely forgot that he had even signed the form, the hospital hired a third party to send out flu shot reminder texts. He then got a text message reminding him that it was time for a flu shot. In the face of this outrageous breach of plaintiff's privacy, he brought this putative class action.

As revised in 2012, the telemarketing rules said the texting party needs prior written consent for this kind of telemarketing. The consent rule does not apply to "wireless cell numbers if the call 'delivers a health care message made by, or on behalf of a covered entity or its business associate.'" The district court dismissed the case, and the Court of Appeals (Cabranes, Livingston and Goldberg [C.I.T.]) affirms.

Plaintiff loses the case because he provided his cell phone number to the Mt. Sinai facility in 2003, agreeing that the hospital could share his information for "treatment" purposes. "Considering the circumstances, we hold that Latner provided his prior express consent to receiving a single text message about a 'health-related benefit' that might have been of interest to him."

Job duties in rehabilitation program may be covered under FLSA

The pro se plaintiff defeats one of the largest law firms in the world in this Fair Labor Standards Act case in which a man who was ordered to participate in a drug rehabilitation program was not sufficiently compensated.

The case is Vaughn v. Phoenix House New York, a summary order issued on January 16. The large law firm is Cravath, Swaine and Moore. In rehab, plaintiff was required to perform certain "job functions" and told that he would go to jail if the program kicked him out for not doing his work. The trial court dismissed the case, holding that plaintiff was not an employee because received "the principal benefit of his participation in the rehabilitation program, which he had entered to resolve the criminal charges against him rather than for the purpose of receiving monetary compensation."

The district court got it wrong, the Court of Appeals (Katzmann, Walker and Calabresi) says, because it did not address an important precedent, Glatt v. Fox Searchlight Pictures, 811 F.3d 528 (2d Cir. 2016), which considers when unpaid interns are "employees" who deserve compensation. In that case, the Court said "the proper question is whether the intern or the employer is the primary beneficiary of the relationship” and set out a non-exhaustive set of factors for courts to weigh as they consider “the ‘economic reality’ of the relationship.” While that analysis was "confined to internships" and does not necessarily "apply to training programs in other contexts," "the nature of that relationship may have some resemblance to the vocational training aspects of certain rehabilitation programs, a context in which other courts have looked to the purpose of the work performed because “the presence of a rehabilitative element does not preclude an employment relationship.” Williams v. Strickland, 87 F.3d 1064, 1067 (9th Cir. 1996). No one cited Glatt in the district court. I understand why a pro se plaintiff would overlook Glatt, but a huge law firm? They should read this blog.

Interesting how the Second Circuit relies on an old Ninth Circuit case for this issue, all the while confining this decision to summary-order-world, which strips the case of serious precedential value. Still, it's a win for Vaughn, at least for now. The case is sent back to the district court to reexamine the case through the Glatt factors.

Metaphysical doubt not enough to avoid summary judgment in high speed chase ase

I have never witnessed as high-speed police chase, but I litigated a police misconduct case arising from a high-speed chase 20 years ago, when the police attacked the driver when the chase came to and end. What I learned is that the courts do not regard these drivers as sympathetic figures. They are deemed dangerous individuals who put everyone else at risk. Unfortunately for the bystanders, there is also no case when the police have to chase down the guy who initiates the chase.

The case is Mfon v. County of Dutchess, a summary order issued on January 25. Plaintiff says he suffered injuries when he was struck by a driver who was fleeing police officers. Under New York law, the driver of an authorized emergency vehicle is exempted from certain traffic laws during an emergency operation. The driver is not exempt, however, from the consequences of his reckless disregard for the safety of others. The New York Court of Appeals has said that "a police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others.” Saarinen v. Kerr, 84 N.Y.2d 494, 501 (1994).

The district court said, and the Court of Appeals (Katzmann, Kearse and Pooler) agrees that the police did not act recklessly as a matter of law, which means the jury will never hear the case.

Jonathan Besze fled from one or more police officers for approximately nine miles over a ten-minute period, for an average speed of 54 miles per hour. The chase took place after midnight, in clear weather, and on dry roads. During the chase, Besze illegally passed other vehicles, ran five red lights, and, on one occasion, drove the wrong way around a traffic circle. A passenger in Besze’s car submitted an affidavit stating that he feared for his life. The drivers encountered between 12 and 20 other cars on the road. The police officers testified, and no witness disagreed, that the drivers encountered no pedestrians. The chase ended when Besze struck Mfon’s car, causing him to sustain a cerebral concussion and traumatic brain injury.

This evidence supports the dismissal of Mfon's case, even though Mfon was an innocent bystander. Plaintiff does give it the college try. He argues that traffic conditions on the chase route were busier than recounted above. He references a traffic camera video of the intersection where the collision occurred and a video of a driver retracing the chase route two years later. This will not cut it. At best, this evidence only creates “some metaphysical doubt” about traffic conditions on the night of the chase and is insufficient to survive summary judgment. The Second Circuit cites Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), for the metaphysical doubt principle. What it really means is the creative arguments that sound great in the law office do not always make it in court because they consist of speculation, not substance. Mfon also says the chase was unusually long and that the officers failed to keep a supervisor fully apprised of the facts of chase, but these factors do not raise a triable issue of fact on recklessness where the chase took place late at night over dry, quiet streets and at moderate speeds.

Some injustices will simply go unremedied

This really bears repeating. The police are allowed to make an arrest based on the victim's say-so, even if the person under arrest turns out to be innocent. Unless the police have reason to doubt the victim's first-hand account, the police have probable cause to credit that account.

The case is McIntosh v. City of New York, a summary order decided on January 25. We had a judge in the United States Courthouse in White Plains who used to say that when the police arrested someone but then dropped the charges, the police were giving him a ticket to the courthouse. That was only partially true. You could file the suit and frame the complaint in a way that makes it look like the police lacked probable cause, but an acquittal or dismissal without a criminal trial does not mean you can successfully sue the police.

In this case, the plaintiff got into a fight with her boyfriend, who called the police and showed them her injuries from the fight. The charges against McIntosh were later dropped. McIntosh then sued the police for false arrest. The Court of Appeals (Katzmann, Pooler and Kearse) affirms the grant of summary judgment against the plaintiff. Not only were the arresting officers dispatched to the scene after the boyfriend alleged that plaintiff had attacked him, but the police saw the boyfriend's  scratches and bite marks. This was enough to arrest plaintiff for assault and harassment.

In trying to avoid summary judgment, plaintiff argued that the police should have known better than to believe the boyfriend's version of events and that they should have credited plaintiff's account instead. This argument has been rejected in prior cases. "Absent circumstances that raise doubts about the victim's veracity, the veracity of citizen complaints who are the victims of the very crime they report to the police is assumed." That language is from Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir. 1997).

Interesting footnote turns up in this case. Plaintiff argues the police fabricated evidence against her, a substantive due process violation. But manufactured evidence by itself does not give you a case, especially if the arrest is otherwise supported by probable cause. As it happens, the Court of Appeals says in a footnote, the district court said the existence of probable cause is enough to defeat the due process claim. That was incorrect, the Circuit says, as per a Second Circuit ruling, Garnett v. Undercover Officer, 838 F.3d 265 (2d Cir. 2016), which said a Section 1983 case based on an officer's false information can proceed even if the police have probable cause to arrest. But that is harmless error in this case because the trial court reached the correct result. The footnote continues with this:

although we note that there may be some tension in our jurisprudence concerning the fabrication of evidence, we need not resolve any such confusion here because McIntosh was not subjected any deprivation due to fabricated evidence. Compare, e.g., Dufort v. City of New York, 874 F.3d 338, 355 (2d Cir. 2017) (“Mere attempts to withhold or falsify evidence cannot form the basis for a § 1983 claim for a violation of the right to due process when those attempts have no impact on the conduct of a criminal trial” because “[t]he constitutional right on which [such a] claim rests is the right to have one’s case tried based on an accurate evidentiary record that has not been manipulated by the prosecution.”); with Garnett, 838 F.3d at 277 (“The setting of bail, which may make the difference between freedom and confinement pending trial, and the prosecutor’s decision to pursue charges rather than to dismiss the complaint without further action, may depend on the prosecutor’s and magistrate’s assessments of the strengths of the case, which in turn may be critically influenced by fabricated evidence. Thus, a further deprivation of liberty can result from the fabrication of evidence even if the initial arrest is lawful.”).

So we have some confusion in the Second Circuit about when you can sue over false police evidence. That conflict will be resolved some day, just not this case.

The trial court giveth and taketh away

Here's a bummer of a case for the plaintiff, who claimed she was denied a position in retaliation for complaining about discriminatory practices at the hospital where she worked. The trial court initially allowed the case to go to trial, but then the trial court taketh away, and the Court of Appeals affirms.

The case is Saji v. Nassau County Medical Center, a summary order decided on January 30. On the summary judgment, the trial initially said plaintiff had a case because the hospital had posted a position for an RN-IV but then removed that post ust weeks after Saji sent her letter that complained about discrimination. The hospital then hired a full-time RN-IV shortly afterwards. That is enough to make out a prima facie case, because the timeline cuts it too close for the hospital. If left unexplained, that temporal proximity is evidence of retaliation.

But the hospital then moved the trial court for reconsideration. These motions are rarely granted. Lawyers make them anyway because sometimes these motions are successful. In this case, it was successful. The trial court had overlooked an important piece of evidence: "Saji herself conceded that she was unqualified for the October 9, 2012 full-time RN-IV position." There goes the case. Viewing the case in its entirety, all plaintiff really had was the timeline to prove her case. But it is settled law in the Second Circuit that “[t]emporal proximity alone is insufficient to defeat summary judgment at the pretext stage.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 847 (2d Cir. 2013).

The Second Circuit (Livingston, Carney and Korman [D.J.]) says there is no way the plaintiff can get around this. While plaintiff argues that "NUMC never directly filled the full-time RN-IV job posting from April 16, 2012, NUMC did indirectly fill the posting by hiring multiple per diem RN-IVs, the only evidence for this is plaintiff's conclusory affidavit. And, as every employment lawyer knows, a party “may not rely on conclusory allegations or unsubstantiated speculation” to oppose a motion for summary judgment. Even if plaintiff were correct in this regard,

the fact that NUMC ultimately replaced a full-time RN-IV position with multiple per diem RN-IV positions would support NUMC’s contention that Saji’s letter had no connection to its decision not to re-hire her. Saji does not dispute that unlike permanent RN-IVs, per diem RN-IVs are hired on an “as-needed” basis and receive no salary. The evidence would therefore strongly suggest that NUMC decided to forgo a full-time RN-IV in favor of multiple per diem RN-IVs as a cost-saving measure. Indeed, NUMC explained to the district court that the Nassau Health Care Corporation had specifically instructed NUMC to eliminate a permanent RN-IV position, and Saji has failed to put forward evidence to rebut this contention.

Plaintiff's remaining claims are also rejected by the Second Circuit. This case shows us once again how difficult it is to prove discrimination and retaliation. Bad or even ill-advised personnel decisions are not necessarily discriminatory. And it is not easy to show the employer is lying about why it did not hire you (or why you were fired).