Police violated Fourth Amendment in abusing material witness warrant

For the second time this month, the Court of Appeals has ruled against the police by clarifying the scope of a certain constitutional right and then holding the defendant police officers are not entitled to qualified immunity because clearly-established law made it clear that the police were violating the Constitution.

The case is Simon v. City of New York, decided on June 21. Simon was picked up by the police under the material witness statute, which allows law enforcement upon a court order to detain an important witness who is not responsive to a trial subpoena. The material witness is brought to court, which then decides of the witness can be held against her will for these purposes. In this case, Simon was deemed a material witness in an insurance fraud case against a police officer. After the police got ahold of Simon under the material witness statute, they intermittently held her for 18 hours over the course of several days. During that time, the police questioned her about the insurance fraud case, but it does appear that she went before a judge to see if she was properly held as a material witness. (The defendants claim Simon voluntarily spent this time with the police).

Qualified immunity has come under attack lately just as the Supreme Court has been vigorously granting it to law enforcement in excessive force and other police misconduct cases. This immunity allows defendants to avoid litigation in money damages cases when the state of the case law is not clearly-established at the time of the constitutional violation. What is clearly-established is in the eye of the beholder, but some Supreme Court justices and scholars are wondering if the Court is letting too many officers off the hook in these cases. In June 2018, the Second Circuit denied qualified immunity to officers who were accused to using a high-volume sound device to disperse peaceful protesters. That was newsworthy, as the Second Circuit is also quick to apply qualified immunity. That case, Edrei v. Bratton, was written by Chief Judge Katzmann, who also writes the Simon material witness case. What's it all mean? Is the Second Circuit pushing back on qualified immunity? If so, will the Supreme Court let the Second Circuit get away with it?

In this case, the Court of Appeals says the officers violated the Fourth Amendment because they detailed her for 10 hours on August 11, 2008 in violation of the material witness warrant that required them to produce her to court that morning. Material witnesses enjoy the rights that are extended to criminal suspects, particularly since they have not been accused of anything. In addition, "a seizure conducted pursuant to an arrest warrant must conform to the terms of that warrant." Also, the Fourth Amendment's reasonableness requirement ensures reasonableness "in the manner and scope of searches and seizures that are carried out." And, logically, to exceed the scope of the warrant is like acting without a warrant at all, the Court says. So here is the rule the Second Circuit sets forth:

Police officers must abide by the limitations set forth on the face of a warrant they are executing. A warrant must be executed reasonably; a warrant generally authorizes only what its terms expressly provide; and a warrant’s execution terms represent the magistrate’s neutral determination of how a warrant is to be executed. A seizure that flouts the plain terms of its authorizing instrument is therefore unreasonable.

Turning to qualified immunity, the Court asks whether the law clearly held in 2008 that Simon's rights were violated. There is a line of qualified immunity cases that hold that even if there is no case right on point, the law was clearly-established if it's an "obvious" case, that is, any police officer would know he was violated the law simply because what he's doing is sufficiently off-the[-wall to violate the Constitution. As the Seventh Circuit once stated, "the easiest cases don't arise." While few decisions have squarely resolved this issue, the officers violated the plain terms of the warrant and detained plaintiff against her will. The same analysis holds true for the detention that took place on August 12, when plaintiff was detained for another eight hours against her will. While the police claim Simon showed up that day voluntarily, the record shows that, after the 10-hour detention ended on August 11, 2008, the police allowed her to go home but told her they had a warrant for her arrest and that she had to come back the next day.

Yellow cabs lose due process challenge to Uber rules

This equal protection case reminds us that the Equal Protection Clause does not quite mean what it says. It says all people must be treated equally by the government, but the government actually has leeway in regulating people and industries differently, so long as those distinctions are not irrational as a matter of law.

The case is Progressive Credit Union v. City of New York, decided on May 1. The yellow cab taxi industry brings this case, alleging that the City's regulations governing the yellow taxis and "for-hire vehicles" like Uber are unconstitutional. The Second Circuit upholds the regulations, which divide the transportation industry into two groups. The medallion taxicabs must comply with certain rules, such as vehicle color, overhead lights, a partition between the driver and the passenger and a certain fare/rate structure. The Uber cars are not subject to these regulations. Is that fair? Maybe, or maybe not. Is it legal? Yes, because the yellow cabs and the Uber cars are not "similarly-situated," meaning the government can treat them differently.

The Court of Appeals (Jacobs, Sack and Parker) details how the yellow cabs differ from the Uber cars. You hail yellow cabs on the street, and they have to pick you up. Uber cars are hailed electronically, such as through a smart phone. These differences explain the regulatory distinctions. The safety features in yellow cabs promote driver safety when the customers have no prior relationship with the company. The safety and color rules governing street cabs also promote easy identification and convenience for people who hail the cab on the street.

The yellow cab plaintiffs say the Uber rules are more favorable. What it all means is that the City does not have extend its Uber regulations to the yellow cabs. But since these two industries are not really comparable, there is no equal protection violation. The yellow cab plaintiffs lose the case.

Officers cannot use ear-blasting sound device against peaceful protesters

Is this the police misconduct case of the year in the Second Circuit? The court allows protesters to sue the police for using am ear-splitting sound device to break up a protest in New York City. The Court says this is a legitimate excessive force case and that the police cannot at this point in the proceeding assert qualified immunity.

The case is Edrei v. Maguire, decided on June 13. Plaintiffs are six protesters who were peacefully standing up the Man in December 2014 when the police activated a long-range acoustic device (LRAD) which is loud enough to blow your ears out and can -- and in this case did -- cause damage to your hearing. The Navy uses these devices to warn off enemy boats. Ironically, plaintiffs were protesting police misconduct at this rally. They say the police ran the LRAD without warning even though plaintiffs were doing nothing wrong. At least that's what the plaintiffs say now, the Court of Appeals notes on this Rule 12 posture, suggesting that anything can surface in discovery.

This is an excessive force case brought under Fourteenth Amendment. Since plaintiffs were not convicted of anything, they are not suing under the Eighth Amendment, which protects the limited rights of convicts. The Fourteenth covers pre-trial detainees and people who interact with the police on the streets. For the first time, the Second Circuit (Katzmann, Walker and Pooler) holds that excessive force claims under the Fourteenth Amendment are resolved under an objective standard, a holding arising from the Supreme Court's ruling in Kingsley v. Henderickson, 135 S. Ct. 2466 (2015), and not the pro-law enforcement subjective test that applies when the plaintiff has already been convicted. The Circuit has already applied Kingsely to pre-trial detainees who suffer abuse in lockup prior to any conviction, in Darnell v. Piniero, 849 F.3d 17 (2d Cir. 2017), a case I am proud to say I briefed at the appellate level. Kingsley now applies to street people.

The Court therefore holds that plaintiffs state a cause of action, as the complaint does not show the police had any reason to blow their ears off with that Navy sound blaster. The question then becomes whether the officers can assert qualified immunity, which lets the police off the hook when they do not violate clearly-established law as defined by Second Circuit and Supreme Court precedent. The Court says a reasonable police officer would have known at the time of this incident that subjecting non-violent protesters to pain and serious injury simply to move them onto the sidewalks violated the Fourteenth Amendment. While the Court has not had a case quite like this one, prior cases put the police on notice that excessive force is excessive force no matter how you slice it.

In seeking qualified immunity, the city argues that the Court has never applied Fourteenth Amendment principles to crowd control and that the officers therefore did not know the right against excessive force applies to non-violent protesters. The Court is not buying it:"That is like saying police officers who run over people crossing the street illegally can claim immunity simply because we have never addressed a Fourteenth Amendment claim involving jaywalkers." Other factors driving the qualified immunity holding are that (1) protesters enjoy constitutional protections; (2) other Circuit Courts have routinely applied excessive force principles to crowd control cases; and (3) officers have long been prohibited from employing pain compliance techniques against protesters.

Supreme Court strikes down political clothing ban at polling places

The Supreme Court holds that a Minnesota law that prohibits people from wearing political clothing in a polling place violates the First Amendment.

The case is Minnesota Voters Alliance v. Mansky, decided on June 14. This issue is more complicated than you think. At first glance, what's wrong with wearing a Hillary for President t-shirt at the polling place? Would that unduly influence anyone that day? But remember that many states, including New York, prohibit campaigning within 100 feet of any polling place, and those restrictions are legal.

The Court starts with a forum analysis. The legality of speech restrictions on government property is determined by first examining what kind of forum we are talking about. A public forum, such as a public park or street corner, is a speech haven so long as you don't kill anyone or block traffic. At the other end of the spectrum is the nonpublic forum, places where the property was not traditionally intended to promote speech and whose particular purpose would be undermined by unfettered speech. Like a military base. Or, according to the majority in this case, the polling places in Minnesota, where on Election Day they are "government-controlled property set aside for the sole purpose of voting," subject to greater speech restrictions.

But that does not end the analysis. True, the nonpublic forum holding gives the plaintiffs an 0-2 count, with one strike to go. But the Court comes around to the speech side in the rest of its opinion, holding that while the state is allowed to restrict some forms of advocacy at the polling place, the restriction against "political" clothing and badges is too vague to survive the First Amendment. What does "political" mean? "It can encompass anything of and relating to government, a government, or the conduct of government affairs," the Chief Justice writes for a 7-2 majority. So that even a button that implores people to vote would fall under this prohibition.

While the Court seems to be OK with restrictions against clothing promoting a political party or the name of a candidate, the restrictions also prohibit "issue-orientated material," which can include anything and everything that might conceivably have a political connotation. "A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable. Candidates for statewide and federal office and major political parties can be expected to take positions on a wide array of subjects of local and national import." The Court similarly rejects the rule against "promoting a group with recognizable political views," defined as "the issues confronting voters in a given election," which, again, can include anything. So that ACLU or Chamber of Commerce apparel -- to extent anything like that actually exists -- would be prohibited in polling places as well.

Bergstein & Ullrich prevail in disability discrimination case

A state appellate court has reinstated a verdict in favor of a sightless woman who was forced to resign her health club membership after it rescinded an accommodation that allowed her to use exercise equipment.

The case, Reveyoso v. Town Sports, produced a jury verdict in the amount of $30,000 after a Manhattan jury determined that the health club violated the anti-discrimination provisions of the New York City Human Rights Law. Following trial, the judge granted the defendant's motion for a new trial, ruling that the verdict was against the weight of the evidence. 

On appeal, the Appellate Division, First Department, unanimously ruled that the jury had a factual basis to find that the gym had initially granted the plaintiff an accommodation by walking her to an exercise bike, and that this accommodation had proceeded without any complications. The appellate court further noted that the jury was able to find that the gym had rescinded the accommodation six months later without any justification and that the jury was not required to credit the gym's defense that it had also asked plaintiff to call in advance of her use of the gym or that she had unreasonably failed to agree to that new arrangement.

Arlene Boop of Alterman & Boop LLP, and Stephen Bergstein, of Bergstein & Ullrich, LLP, represented Reveyoso. The Appellate Division's ruling is among the few cases under the City Human Rights Law that has upheld a verdict in favor of a sightless woman. The ruling further stands for the proposition that an entity is not permitted to alter a reasonable accommodation without sufficient justification.

The Court's ruling is below:

Reveyosos v Town Sports Intl., LLC, June 14, 2018

Order, Supreme Court, New York County (W. Franc Perry, J.), entered November 13, 2017, which, to the extent appealed from as limited by the briefs, following a jury verdict in plaintiff's favor on her claim for disability discrimination in violation of the New York City Human Rights Law (City HRL), granted that portion of defendant's cross motion seeking to set aside the jury verdict as against the weight of the evidence pursuant to CPLR 4404 and ordered a new trial, unanimously reversed, on the law and the facts, defendant's cross motion denied, and the matter remanded for consideration of plaintiff's motion for attorneys' fees.

The jury verdict was not against the weight of the evidence (see McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206, 777 N.Y.S.2d 103 [1st Dept 2004]). A fair interpretation of the trial evidence shows that plaintiff, a sightless 66-year-old woman, asked for, and received, from defendant, owner of a commercial gymnasium open to the public, an accommodation for her disability in the form of an employee escort from the gym entrance downstairs to her preferred exercise machine. The employee would then program the machine to plaintiff's preferred settings and would be available to escort plaintiff back upstairs when she was finished exercising. This accommodation functioned, with a minimum of disruption for either party, over the next six months, during which period plaintiff visited the gym a half-dozen times. Notably, there is no evidence in the record that the accommodation cost defendant any money at all, or otherwise represented any sort of undue hardship on defendant as that term is defined in the statute (see Administrative Code of City of NY § 8-102[18][a]-[d]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 835, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014]). While plaintiff typically had to wait a few minutes for defendant to find an employee to assist her, she did not mind the short wait.

Since the parties had already reached a reasonable accommodation, in the form of the employee escort, there was no legally cognizable reason for defendant to ask plaintiff to have Medicare provide her with a trainer. Indeed, in so doing, defendant would have been abdicating its legal obligation to provide a reasonable accommodation altogether, by shifting the burden entirely to another party. Defendant's witnesses testified that it also proposed an alternative accommodation — in the form of asking plaintiff to call in advance of her visits to permit defendant to arrange assistance for her. Plaintiff testified that this did not occur and that she was told by the gym's employees that she would no longer be assisted to and from the exercise machine. The jury resolved this credibility determination in plaintiff's favor (see Laham v Bin Chambi, 34 AD3d 374, 375, 824 N.Y.S.2d 641 [1st Dept 2006]).

Based on our review of the record, defendant's request for a reduction of the compensatory damages award is without merit.

Plaintiff did not object to the trial court's refusal to charge punitive damages, and therefore did not preserve the issue for review (see CPLR 4110-b; Washington v Atenco, 103 A.D.3d 529, 529, 959 N.Y.S.2d 437 [1st Dept 2013]).

Since the trial court, in light of its decision, did not consider plaintiff's motion for attorneys' fees it should consider this matter upon remand.

False arrest case should go to the jury

Many false arrests are dismissed before they reach the jury -- even before trial -- because the trial court finds the police had probable cause to arrest the plaintiff. That's what happened here. But the Court of Appeals reinstates the case and says the jury could find for the plaintiff. This is a rare pro-plaintiff false arrest ruling from the Second Circuit.

The case is Tuccillo v. Nassau County, a summary order issued on May 25. For plaintiffs, the problem with false arrest cases is that we apply an objective standard in determining if the police had probable cause to arrest. Probable cause is itself a deferential legal standard for the police to satisfy. Even people who are acquitted at their criminal trials may have difficulty proving the police lacked probable cause to arrest them. Another way for plaintiffs to lose is that courts will find probable cause existed if the police conceivably had any legitimate basis to detain the plaintiff, even if they charged plaintiff with an offense that lacked any factual basis. So that if the police arrest you for resisting arrest without any basis, but another officer could have arrested you for disorderly conduct, then there is no false arrest claim because there was an objective basis to detain the plaintiff no matter what the police charged you with.

In this case, the parties went to trial, but the trial court dismissed the case before it went to the jury, ruling that no reasonably jury could find the police lacked probable cause to arrest the plaintiff. The case arises from a road rage incident on Long Island. The Second Circuit (Pooler, Lohier and Sullivan [D.J.]) ruling does not tell us what plaintiff was charged with. The trial court said in issuing its ruling that plaintiff and and one of his witnesses were "liars," and it accepted the testimony of the police officers who arrested plaintiff. But this is a classic credibility determination for the jury, not the trial court. Really, it's hard to believe the trial court would grant the defendants judgment as a matter of law mid-trial on the basis that the plaintiff was a liar.

No continuing violation claim in two-phase sexual harassment case

The hostile work environment inquiry under Title VII asks if the sexual harassment was severe or pervasive. The harassment can also extend over a period of time such that the normal 300 day statute of limitations for a Title VII claim is modified if the plaintiff can prove a continuing violation that lasted more than 300 days. This case asks whether the prior harassment may be joined with more recent harassment to invoke the continuing violations rule.

The case is Kimball v. Village of Painted Post, a summary order issued on June 11. There were two phases of harassment for plaintiff, who worked as a police officer out in western New York. In 2005-06, the Police Chief engaged in a variety of harassing and abusive behaviors by calling her offensive names, pushing her into filing cabinets and choking her at the police station. But the Chief eventually left his position and the Village changed the locks on its doors to prevent him from returning to the station. That phase of the harassment, by itself, was untimely under the 300 day statute of limitations. But Plaintiff claims she suffered more recent and therefore timely harassment from other co-workers after the Chief left the department. The problem for plaintiff is that the second phase of harassment was "qualitatively different" from phase one such that phase two cannot allow plaintiff to claim that both phases of the harassment were sufficiently continuous to invoke the continuing violations rule. This is mainly because the harassment was different in that no one was screaming at her or subjecting her to slurs.

Still, plaintiff may have a claim if phase two involved actionable harassment on its own, separate and apart from the Chief's harassment. She does not, the Court of Appeals (Lynch, Carney and Hellerstein [D.J.]) rules. Plaintiff says her coworkers were watching pornography on work computers. But that does not give her a sexual harassment claim because she did not actually see the pornography, only "the URLs of pornographic websites on occasion autopopulated when she used the work computers." In other words, she "saw pornographic windows minimized on the toolbar of the computers at the police station." And, she only claimed to see this on two separate occasions, not enough for a hostile work environment under Title VII.

There is another twist here. After the Chief retired, he appeared to stalk plaintiff, driving slowly past her house "while staring at her and making faces during [plaintiff's] middle of the night patrol shift, and sitting outside [plaintiff's] house in his car with his camera aimed at the house." This is all pretty sick, but there is no evidence that the Village had anything to do with this, or that "his actions were undertaken in his capacity as a consultant to the Department." Instead, the department never consulted with the ex-Chief during the three-year period it paid him as a consultant." My question is, why was the Village even paying this guy as a consultant? I have no answer for this. Since the Village had no control over the ex-Chief, plaintiff cannot hold the Village liable for this harassment.

Bergstein & Ullrich prevail in transgender discrimination case

Bergstein & Ullrich, LLP, has prevailed in an employment discrimination case alleging that a Port Jervis recycling company terminated an employee because she is transgender. The ruling, from the Appellate Division Second Department, upholds a finding reached by the State Division of Human Rights, which ruled in 2015 that Advanced Recovery, Inc., offered pretextual, or false, reasons for terminating Erin Fuller's employment.

The case is Advanced Recovery, Inc. v. Fuller, issued on June 6. Erin Fuller worked as a mechanic for Advanced Recovery. During that time, she was transitioning, advising management that she identified as a female. On the day of her termination, August 4, 2010, Fuller showed management a court-ordered name change stating that her name was now Erin Fuller, not Edward Fuller. She was fired on the spot. The SDHR ruled that the company president said, "OK, now I have a problem with your condition. I have to let you go." While management said it fired Fuller because she has misappropriated money on July 22, 2010, the SDHR deemed that justification a pretext, since management had forgiven her for that transgression and docked the money from her paycheck. Also, on cross examination at the SDHR hearing, the company president, Christopher Rea, invoked the Fifth Amendment on questions relating to Fuller's termination, most likely because Fuller's attorneys raised questions about the legality of management's personnel practices, in which full-time employees were classified as independent contractors. The SDHR ruled:

On or before July 22, 2010, Respondents were aware that Complainant had used the torch gas money to purchase heating oil for her home. Respondents recovered the torch gas money by docking Complainant’s July 22 paycheck. However, they did not terminate Complainant’s employment at that time. Complainant continued to work for Respondents for another two weeks until she presented Respondents with the court order changing her legal name to Erin Fuller. On the very day that Complainant presented this document to Respondents, Rea terminated her employment and told her that he was terminating her employment because he had “a problem with [her] condition.”

Notably, Rea did not deny making this statement when provided the opportunity to do so at the public hearing. Rea made the decision to terminate Complainant’s employment. Therefore, Rea’s testimony was essential for this tribunal to make a determination regarding the reasons for Complainant’s discharge. At the public hearing, Rea submitted his own affidavit and testimony on direct examination regarding his version ofthe events in issue. However, on cross examination, Rea conveniently chose to invoke his Fifth Amendment privilege against self incrimination in response to virtually every question asked of him by opposing counsel. This inquiry included questions regarding the reasons for Rea's decision to terminate Complainant’s employment.

The Division concludes that these circumstances warrant drawing an inference that any answers Rea provided in response to the questions put to him on cross-examination would have been adverse to him. The taking of this adverse inference applies to questions put to Rea by Complainant’s counsel regarding the termination of Complainant’s employment.

The SDHR awarded Fuller $30,000 in damages for pain and suffering and $14,560 in lost wages. The Division also imposed a $20,000 civil penalty against the Employer.

The Appellate Division affirms the SDHR's findings and damages award, ruling there was substantial evidence to support the determination. "There is substantial evidence in the record to support the SDHR's determination that the complainant established a prima facie case of discrimination, and that the petitioners' proffered reasons for terminating the complainant's employment were a pretext for unlawful discrimination."

Involuntary commitment case dismissed on technical grounds

This long-running litigation involves a man who has challenged various aspects of his mental health commitment at institutions on Long Island. The Court of Appeals resolves this case on procedural matters, reminding us once again that many cases end in disappointment, on the basis of technical grounds that most plaintiffs are not aware of when they first brought the lawsuit.

The case is Monaco v. Sullivan, a summary order issued on June 5. This is one of the longest summary orders I've seen, totaling 18 pages. Most are 4 or 5 pages that summarize the ruling. Plaintiff sued various state officials for due process over his commitment to his psychiatric incarceration. At some point, he was the lead plaintiff in a class action over involuntary commitments. Under the due process clause, certain involuntary commitments are illegal, particularly if they are based on questionable medical judgments. Here is where things went wrong for plaintiff in this case.

First, in June 1998, a state court authorized plaintiff's civil commitment. That ruling followed full litigation on the issue. The Appellate Division then dismissed his appeal as moot. The federal court therefore said this claim cannot proceed any further because of collateral estoppel, one of those technical legal principles I mentioned above. Under this estoppel principle, if you lose the case in state court after having had a full and fair opportunity to litigate the issues, you cannot bring the same claim in federal court, even if you think the state court judges are clowns. The Court of Appeals (Parker, Livingston and Chin) notes that plaintiff a full opportunity to litigate this issue in state court. But plaintiff says collateral estoppel cannot attach because he never had a chance to appeal that state court ruling to the Appellate Division, as that court dismissed his appeal as moot. Precedent holds that collateral estoppel applies when "a party is prohibited from appealing 'as a matter of law.'" In New York, "an appellate court's dismissal of a case on mootness grounds leaves the lower court's decision intact for preclusion purposes, unless an appellate court specifically directs the lower court to vacate its earlier decision." That did not happen here. The Second Department said the appeal was moot but it did not tell the lower court to vacate its ruling. This is the ultimate technicality, but precedent commands it, and that brings plaintiff's due process challenge to an end.

Plaintiff also sues a doctor, claiming the doctor coerced him to enter a psychiatric facility. The doctors wins the case on qualified immunity grounds, yet another technical defense to these claims, which lets government defendants off the hook if they did not violate clearly-established law. While plaintiff said the doctor coerced him to enter the facility, state law allows doctors to "encourage" people to do so. Perhaps there is a fine line between encouragement and coercion, but "complying with this duty can hardly amount to 'a substantial departure from accepted professional judgment, practice of standards,'" the test under the due process clause for cases like this.

If I knew you were coming, I would bake a cake

The Supreme Court has ruled that the Colorado Human Rights Commission denied a baker his religious rights in expressing hostility toward his religious beliefs in the course of determining whether he violated the rights of a gay couple in refusing to bake them a wedding cake.

The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided on June 4. The gay couple wanted a wedding cake, but the Cakeshop baker refused to make one because of his religious opposition to same-sex weddings. This happened before the Supreme Court said that Equal Protection Clause recognizes the legality of same-sex weddings. The couple filed a discrimination complaint with the Colorado authorities, which ruled in their favor, determining that the baker violated state law, which prohibits "discrimination based on sexual orientation in a 'place of business engaged in any sales to the public and any place offering services . . . to the public.'” The Supreme Court considered whether the baker's religious objections can override the state's antidiscrimination provision (which mirrors those of most other states, including New York).

One argument the baker advanced in the Supreme Court was that the art of baking a wedding cake is free speech, and that therefore forcing him to bake a cake for gay couples constitutes coerced speech in violation of the First Amendment. The free speech clause of Constitution does prohibits coerced speech. But the argument that baking a cake constitutes expressive activity protected under the First Amendment is quite novel. So novel that the Court did not address that issue and instead ruled for the baker on narrower grounds: the antireligion hostility expressed by the state's human rights commissioners in the course of resolving this administrative dispute violated the constitutional prohibition against religious discrimination.

What did the commissioner say during the administrative proceeding? Here is how the Supreme Court presents it:

At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that [baker] Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.”

 The Court notes these statements can be interpreted differently, but that they could be deemed dismissive toward religion. Then, at a later proceeding, a commissioner said:

 “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

That did it for the seven-Justice majority on the Supreme Court, which concludes, "the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint." Notably, the quotes attributed to the commissioners -- particularly the second excerpt above -- do not explicitly say that the baker should lose because he has religious beliefs, that the religion has been used to horribly oppress people. It looks like the commissioner was making the point that religious beliefs are sometimes used to oppress. For this reason, the two dissenting Justices (Ginsburg and Sotomayor) regard these as stray remarks.

Justice Thomas concurs but, with Justice Gorsuch, says that the baker's cake-making is a free speech matter. He reasons, in part:

The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it,and delivering it to the wedding.

Is wedding cake production a free speech issue? The Court majority rejects that proposition, but two Justices accept it. My guess is the majority did not adopt that view, which is why it decided this case on the narrower grounds relating to the religious bias expressed by the Human Rights Commission.

New trial ordered in Taser case

This is an interesting case for a number of reasons. An inmate sued law enforcement officers for excessive force. The jury said there was no excessive force, but the trial court granted the inmate a new trial on the ground that it was unreasonable for the jury to exonerate the officers. This almost never happens. So the officers appealed, but the Court of Appeals lacks jurisdiction to resolve the appeal on technical grounds.

The case is Bryant v. Meriden Police Dept., decided on May 16. Bryant was arrested on drug charges. The police took him to the station where, he says, the officers tased him. Some of the events were captured on video, but one of the officers, Egan, testified that when they took plaintiff to the ground, another officer, Slezak, applied the Taser. As the district court stated, "Though the Second Circuit has yet to rule on the issue, district courts within the Circuit have concluded that, regardless of whether it is in drive-stun or dart-stun mode, the use of a taser constitutes a "significant degree of force" that is akin to pepper spray." Now, plaintiff does not come off as an angel here. The officers had to place a spit mask on his face, and they say they found drugs on his person in custody. Anyway, at trial, the officers said plaintiff's resistance justified the single use of the Taser in the cell. The jury ruled for the officers.

On plaintiff's motion for a new trial, however, the trial court said "it was against the weight of the evidence for the jury to have found that Bryant's Fourth Amendment rights were not violated when he was tased." A new trial was ordered to determine whether Slezak's use of the Taser was excessive and whether Egan failed to intervene. Here is how the trial court saw it:

any contention that the taser was used for purely officer-safety purposes is belied by the fact that, at the time the taser was initially brought into the cell, there was no immediate threat to officer safety. Immediately prior to the taser being brought into the cell, an officer can be seen interacting with Bryant individually—without the presence of other officers and without a taser or other instrument that would help protect the officer if he encountered a threat. Had the officers truly believed that Bryant posed a serious threat to their safety, they would not have casually entered the holding cell with him, often without the assistance of an additional officer. Rather, Slezak testified that he brought the taser into the cell to convince Bryant to submit to a search. The taser was wielded as a compliance mechanism in the face of a suspect who did not want to submit to a search. It was not used as a tool for officer protection.

Faced with a suspect who they believed had something secreted between the cheeks of his buttocks, it would have been reasonable to place Bryant in a dry cell and wait until either he submitted to a search or released the drugs on his own volition. It was not reasonable to tase Bryant merely to speed up the process. Having evaluated the Graham factors and additional considerations, I hold that it was against the weight of the evidence for a jury to find that Slezak's use of the taser was reasonable under the circumstances. For the same reason, it is also against the weight of the evidence to find that Egan, unquestionably in a position to intervene, is not liable for failing to intervene in Slezak's unreasonable use of force. The jury verdict in favor of those defendants represented a "seriously erroneous" result justifying a new trial.

The officers appealed. The problem for them is that new trial rulings are not immediately appealable. The officers have to go to trial before they can challenge the trial court's new trial ruling. This means that, if plaintiff wins the retrial, the officers can challenge the new trial ruling for the first time in the argument that there never should have been a second trial and that the first jury got it right. That's a hassle for the officers, but one of many peculiarities unique to federal practice.