Circuit revisits the right procedure for amending complaints in the face of Rule 12 motions

This case talks about the procedure guiding motions to dismiss a federal complain under Rule 12(b)(6). In particular, when can the plaintiff amend the complaint after the district court grants the motion to dismiss for failure to state a plausible claim? The Court of Appeals rejects the practice of at least one district court judge in holding that the time for plaintiff to file an amended complaint happens after the court rules on a motion to dismiss.

The case is Kopchik v. Town of East Fishkill, a summary order issued on December 26. I wrote about the ADEA and disability discrimination claims the other day. Not only did the Court of Appeals reinstate the plaintiff's claims on the merits, it throws in a few words about the district court's complaint-amendment procedures.

The district courts know that a motion to dismiss can actually result in two motions. If the first motion is granted because the plaintiff does not allege enough facts to state a claim, the plaintiff can amend the complaint once under rules. This means that, in opposing the motion to dismiss, the plaintiff might also cross-move to amend the complaint to fill in any deficiencies identified by defense counsel in filing the motion. Federal judges do not want two motions to dismiss in the same case, so they have procedures to prevent that. Some judges have the lawyers appear in court for a pre-motion conference to argue the merits of the motion before defense counsel even files it. During that colloquy, the judge might ask plaintiff's counsel if he wants to amend the complaint before the motion is file. Another approach, followed by the district court in this case, is to put the motion to dismiss on hold to see if plaintiff wants to file an amended complaint rather than oppose the motion; if plaintiff choose that route, the motion to dismiss is set aside, as we have a new complaint in the case, though defendant can move against the new complaint, as well. Under this procedure, if plaintiff chooses not to file an amended complaint in the face of defendant's motion, he forfeits the right to file an amended complaint.

The Court of Appeals notes that it has already rejected the latter procedure, citing Lorely Fin. No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 189-91 (2d Cir. 2015). In light of that case, the Court says, "there is no obligation on a plaintiff to expend time and resources to amend a complaint before knowing whether the court will find it insufficient, and if so, in what ways." The Court said in the Lorely case, "Without the benefit of a ruling, many a plaintiff will not see the necessity of amendment   or be in a position to weigh the practicality and possible means of curing specific deficiencies." In the end, the Court says, "It is inappropriate to deny a plaintiff the opportunity to replied after a defendant's motion to dismiss is granted, simply because the plaintiff decided not to replied before learning whether the court would find the complaint insufficient. The opportunity to amend the complaint is appropriately presented after the district court rules on a motion to dismiss."

Town board's fancy footwork in restructuring positions supports ADEA retaliation claim

Employers can get pretty creative when it comes to discriminating against people who file discrimination charges with the EEOC. The Court of Appeals recognizes that notion in reinstating an age discrimination lawsuit against a Duchess County municipality.

The case is Kopchik v. Town of East Fishkill, a summary order issued on December 26, a Christmas present for plaintiff, who claims he resigned his position under duress after the town eliminated a class of building and maintenance positions and then re-hired everyone but plaintiff, who instead was offered a position that he could not physically perform in light of his injuries arising from a job-related motor vehicle accident. This kind of fancy footwork could support plaintiff's retaliation claim, the Court of Appeals (Leval, Droney and Walker) says.

The Second Circuit raises a few interesting points. First, while the district court said there is no retaliation claim because the reorganization took place nine months after plaintiff filed the EEOC charge, the Court of Appeals notes there is no bright-line time-gap that will support or kill off a retaliation claim. Each case has to be evaluated in context. The Court says the nine-month gap may be explained by the amount of time it would take for the Town Board to undertake and formally adopt the restructuring. This reasoning reflects the reality of municipal decisionmaking, where nothing happens overnight. In addition, the Court of Appeals says, the retaliation could have stemmed from a prior EEOC charge that plaintiff filed in relation to earlier discrimination that plaintiff did not turn into a lawsuit. After the 90-day deadline for plaintiff to file a lawsuit in connection with that earlier charge came and went without a lawsuit, the Town Board waited another two months pass its job-restructuring resolution. While the trial court said in dismissing the case that it was not plausible for the Town Board to wait another two months to retaliate, the Court of Appeals says "it would be plausible for the Town to let some further time pass, so as to conceal its motivation." I have not previously seen this reasoning in a Second Circuit ruling. A smart plaintiff's lawyer will use that reasoning to explain away a lengthy time-gap between the protected activity and the retaliation. But bear in mind this is a summary order and not a precedential opinion, though summary orders may be cited if you've got nothing else.

In any event, we also have differential treatment between plaintiff and his non-disabled colleagues such that the time-gap does not alone revive plaintiff's lawsuit. Since other workers had their jobs eliminated but were brought back into town employment except for plaintiff, that also supports the minimal prima facie case.

These facts also revive plaintiff's disability discrimination claim, as management knew plaintiff was seriously injured and it futzed around with the positions to eliminate him from the town workforce, the Court of Appeals says. While the district court said that whether the town board's resolution eliminating the maintenance workers' positions "had a unique effect on plaintiff because of his disability is irrelevant to the causal connection" element of the prima facie case, the Second Circuit sees it differently. The resolution appeared to be designed to exclude plaintiff while bringing everyone else back to work. Under the minimal prima facie standard, plaintiffs states a plausible claim.

You have the right to own a chuka stick

A federal judge in New York has ruled that state law that prohibits ownership of nunchaku, or chuka sticks, violates the Second Amendment's right to bear arms.

The case is Maloney v. Singas, decided by Eastern District Judge Chen on December 14. This case has been kicking around for 15 years, having twice reached the Second Circuit, which first ruled against the plaintiff but later allowed the lawsuit to proceed after the Supreme Court in 2008 held the Second Amendment protects the individual right to gun ownership. Following this ruling, I can predict the case will reach the Second Circuit a third time.

The chuka stick is a martial arts instrument used recreationally in martial arts training, practice and performance. It is primarily used in self-defense as a weapon. At the evidentiary hearing on the statute's constitutionality, the court learned that nearly 65,000 chuka sticks were sold in the United States between 1995 and 2018, and that over a two-year period recently, Nassau County (the defendant in this case) prosecuted only five people for crimes involving the nunchaku.

The district court applies the constitutional analysis that the Supreme Court devised in the Heller case from 2008, which says the Second Amendment only protects weapons that are "in common use" and are "typically possessed by law-abiding citizens for lawful purposes." The court finds there is a rebuttable presumption that these weapons are protected under the Second Amendment. A lot of these things are floating around, and few people are arrested for using them criminally.

In reviewing the constitutionality of statutes under the Second Amendment, courts apply "intermediate scrutiny," which requires the government to advance a good reason for the restriction (as opposed to "strict scrutiny" which requires a compelling reason). Under this test, the restriction must be substantially related to an important governmental interest. While the court recognizes that protecting the community from crime is an important interest, plaintiff wins the case because the restriction against chuka sticks is not substantially related to that objective, as there is a dearth of nunchaku-related crime and the state's ban against these weapons is all-encompassing. "Defendant has offered virtually no evidence supporting a public safety rationale for a total ban (as opposed to lesser restrictions" on the possession of nunchaku in New York State.

Coerced speech doctrine applies in HIV/AIDS policy case

This long-running case has already been the U.S. Supreme Court and back. It involves a federal policy that says the government will only fund international HIV/AIDS programs if the recipients adopt policies against prostitution and sex trafficking. This may surprise you, but that policy requirement violates the First Amendment as a form of coerced speech.

The case is Alliance for Open Society v. United States Agency for International Development, issued on December 20. The first time this case reached the Second Circuit a few years ago, the Court held that the policy requirement violates the First Amendment rights of domestic organizations that receive this governmental funding. From what I recall, there was a good reason for this holding, though it is counter-intuitive (who would be in favor of sex trafficking?). The Supreme Court agreed with the Second Circuit's reasoning in this case.

The case returns to the Court of Appeals on a related issue: does the policy requirement violate the First Amendment when the domestic organization is closely affiliated with a foreign entity that follows a contrary policy? Over a dissent from Judge Straub, the Second Circuit (Parker and Pooler) says that it does. In that circumstance, the policy cannot apply to the foreign affiliates. Judge Parker explains why: the domestic organizations are affiliated with foreign entities who work on the HIV/AIDS programs. These entities try to maintain a unified global identity, with consistent branding. When this case reached the Supreme Court five years ago, the Court said that where an entity is clearly identified with another recipient of government funds and it rejects the government's message, its ability to speak is compromised when its affiliate is forced to speak to government's contrasting message. Consistency of message is key under this First Amendment doctrine. The Supreme Court's reasoning applies in this case. As Judge Parker writes:

These principles decide this appeal. Here, the affiliates are clearly identified with plaintiffs, and to require the affiliates to abide by the Policy Requirement would require the closely related—and often indistinguishable—plaintiffs to be seen as simultaneously asserting two conflicting messages. This is the “evident hypocrisy” to which the Chief Justice referred: when the Government requires contrasting, hypocritical messages between domestic and foreign affiliates by making one speak the Government’s message, this requirement infringes the speech of the domestic affiliate and, in so doing, violates the First Amendment. Indeed, the Government itself acknowledges that forced hypocrisy can impair an entity’s ability to speak: “It may be true that when two organizations are closely linked, in some circumstances the speech of one can be seen as the speech of both.”

Public university employee could be retaliated against over nepotism complaint

Another First Amendment retaliation case is dismissed as the Second Circuit finds that decisionmakers did not violate the First Amendment in "retaliating" against a public employee who complained about nepotism at the University of Connecticut.

The case is Weinstein v. University of Connecticut, a summary order issued on December 4. Public workers do have free speech rights, unlike private employees, whose workplaces are not regulated by the Constitution. You cannot suffer retaliation for speaking on a matter of public concern, generally defined as anything that would interest the public. But speech on private matters is not protected under the First Amendment.

Weinstein brought a complaint to the University's Director of Compliance concerning the Dean of the School Business. In filing a labor grievance with the University, Weinstein said the Dean engaged in nepotistic behavior. This led defendants to decline to reappoint plaintiff to his position.

Public concern speech is protected under the Constitution in that public management cannot retaliate against the employees for speaking out. Speech about nepotism might be of interest to the public, but plaintiff loses because, in context, it was private speech. At a minimum, the Court of of Appeals (Livingston, Lohier and Cortty [D.J.]), these defendants have qualified immunity because reasonable public administrators could have believed in 2011 that it was legal to retaliate against plaintiff.

At the time the University decided not to reappoint Weinstein (2011), our case law indicated that for speech to be on a matter of public concern it should have “a broader public purpose” and not be merely “calculated to redress personal grievances.” By contrast, Weinstein’s complaints were “personal in nature and generally related to [his] own situation,” and did not expose “pervasive or systemic misconduct by a public agency.” Weinstein made his first nepotism allegations while disputing changes being made to the University’s Innovation Accelerator Program, and subsequently when contesting the University’s handling of his reappointment. In both instances, his speech was focused on the private matter of his employment, which is not a matter of public concern.

Pro se school administrator wins breach of contract appeal

I am always impressed when a pro se litigant wins an appeal against a counseled defendant. In this case, a pro se school administrator wins her breach of contract appeal in the Second Circuit.

The case is Williams v. Buffalo Public Schools, a summary order issued on December 12. Williams sues for breach of contract. The school board terminated her employment, claiming she did not properly maintain her professional certifications, as required under the employment contract. But this case demonstrates how breach of contract cases are not so easy. Yes, Williams did not have the appropriate New York certification. But, she alleged in the complaint, she had professional certificates from Oklahoma and Florida, and at the time of her interview and hiring, she told defendants that she did not have a valid New York certification. During her first week, she applied for reciprocity from the State Education Department, and she later got a School District Leader Internship Certificate, suitable for a district-wide supervision position.

The Court of Appeals (Lynch, Hall and Carney) reinstates the lawsuit because, while the job posting says candidates must have a permanent teacher certificate and a New York school district administrator certificate, the contract is silent as to these certifications. The lawsuit plausibly alleges that Williams' alternative certifications satisfied the requirements in the contract. We can also plausibly infer that the district waived its right to enforce the contract's New York certification requirement, as plaintiff alleges the district knew she did not have that certification but they hired her anyway. That's waiver, my friends. Although the contract contains a non-waiver clause, state law does not preclude a waiver of contractual rights.

While the breach of contract claim is reinstated, the Court of Appeals affirms the dismissal of plaintiff's defamation claim, stemming from Board member Carl Paladino's statements that the district was "dizzy" for hiring plaintiff, whom he called a "hanger on." Paladino is a well-known loudmouth who ran for governor in 2010. These comments are not assertions of fact and therefore cannot be proven false. Hence, no defamation claim.

Retaliation case against City of Ithaca goes to trial a fourth time

This case has been around for quite some time. Plaintiff was a police officer for the City of Ithaca. The case was filed in 2010 and went to trial in 2012, when the jury awarded $2 million on the Title VII retaliation claim. After the trial court granted the City a new trial, the case went to trial again in 2015, when the jury awarded plaintiff $480,000 in damages, including $220,000 for pain and suffering relating to retaliatory "beat assignments." The trial court said the damages for the beat assignments were too high and the plaintiff could either take $50,000 on remittitur or have a new trial on damages on that claim (while also sustaining a separate damages award in the amount of $260,000 arising from a retaliatory notice of discipline). Most plaintiffs take the reduced amount, but this plaintiff opted for a new trial. So another trial on damages took place in 2016, and the jury awarded him less money than the remittitur, $20,000, on the beat assignments claim. The City appeals, and the Second Circuit finds the jury was not properly instructed on both retaliation claims, so the third verdict is now gone, as the Court of Appeals orders a fourth trial.

The case is Miller v. City of Ithaca, a summary order issued on December 18. When the liability portion of the case originally went to trial in 2012, the district court charged the jury that plaintiff can win the retaliation case if he shows his protected activity under Title VII was a motivating factor for the various adverse actions that plaintiff endured. The problem is that, since that verdict came down, the Supreme Court in University of Texas Medical Center v. Nassar, 570 U.S. 339 (2013), said the motivating factor standard does not govern Title VII retaliation cases and that, to win, the plaintiff has to show the retaliatory intent was the "but-for" cause of the retaliation. Motivating factor is a more plaintiff-friendly standard, as it does not have to be the factor that makes the difference in the personnel decision. Under the but-for test, the plaintiff has to show the retaliatory intent by itself made a difference, even if it was not the sole cause.

What it means for Miller is that, after all this time, this case proceeded in the district court under a liability standard that the Supreme Court has since repudiated. After three trials in this case, a fourth trial is now warranted, under the new jury charge. The beat assignment and notice of discipline claims will again go before a jury.

On this appeal, the City did try to prevent a fourth trial altogether, claiming that plaintiff did not actually suffer any adverse actions. The Second Circuit rejects that argument ruling that the beat assignments that the City ordered plaintiff to take on were sufficiently adverse because they usually went to junior officers and were seen as "punishment" beats when given to senior officers like plaintiff. It is that ruling -- that plaintiff did suffer an adverse action -- that allows this case to return to trial a fourth time, as there is still something worth suing for.

Some Rooker-Feldman for you

The Supreme Court has devised a set of rules that prevent unhappy state court parties to relitigate their cases in federal court. One of those rules is called Rooker-Feldman, named after two Supreme Court cases. Rooker-Feldman says you cannot file a case in federal court that, in essence, represents an appeal from a state court judgment. This allows the federal courts to respect state court judgments, no matter how silly they are. Rooker-Feldman is a complex area, however, as shown in this case.

The case is Cho v. City of New York, issued on December 11. This case has three plaintiffs, each of whom settled eviction proceedings that the City brought against them for allegedly misusing their property for criminal activity. The plaintiffs agreed to settle those eviction proceedings while maintaining their innocence; they claimed the settlements were coerced. After the settlements were "so ordered" by state judges, plaintiffs brought suit in federal court, alleging the City's lawyers used these eviction actions to compel property owners and leaseholders to enter into settlement agreements that require them to waive their constitutional rights.

Since there is a strong state court connection to this federal lawsuit, we've got a Rooker-Feldman problem here, do we not? The City argues that this case is really an end-run around the settlements that the state judges have already so-ordered. We solve Rooker-Feldman problems by applying a four-part test: (1) the federal-court plaintiff must have lost in state court; (2) the plaintiff must complain of injuries caused by a state-court judgment; (3) the plaintiff must invite district court review and rejection of that judgment; and (4) the state-court judgment must have been rendered before the district court proceedings commenced." The second requirement seems to be the most important, says the Second Circuit (Lynch, Hall and Carney). Plaintiffs say the state courts that so-ordered the settlements merely ratified rather than produced their injuries, and that they can proceed with their lawsuit against the City of New York over its coercive settlement practices. This is the first time the Second Circuit tackles this issue.

The Court of Appeals agrees with plaintiffs, holding that, "where, as here, plaintiffs bring claims alleging harm flowing from wrongful conduct leading to settlement terms and do not argue that the state courts committed any error in so-ordering the parties’ agreements, the complaint attacks the conduct itself, and the claim does not function as a de facto appeal." As the Court concludes, "The instant case thus does not entail the evil Rooker-Feldman was designed to prevent. Plaintiffs are attempting to remedy an alleged injury caused when, prior to any judicial action, they were coerced to settle, not an injury that flows from a state-court judgment. By allowing an action such as this to go forward, we do not risk turning our federal district courts into quasi-appellate courts sitting in
review of state-court decisions."

Court of Appeals clarifies associational retaliation claims under Section 1983

It is illegal to retaliate against some because they are associating with someone else. But there are some major exceptions to this rule, as shown by a recent Second Circuit case against the County of Rensselaer.

The case is Gorman v. County of Rensselaer, issued on December 6. I represented the plaintiff in this appeal. The primary holding in this case, that qualified immunity shielded the defendants from any First Amendment liability arising from plaintiff's whistleblowing that a sergeant had invaded a civilian's privacy, is discussed here.

Gorman's sister was dating Sgt. Patricelli for years. They broke up because Gorman's brother told the sister that Patricelli was fooling around with someone else. That led Patricelli to threaten plaintiff and to otherwise retaliated against him. In addition to suing under the First Amendment, plaintiff sued under the Due Process Clause of the Fourteenth Amendment for associational discrimination. The Second Circuit had never really clarified what it takes to win a case like this under the Fourteenth Amendment, so it does so here.

But first, some untangling. In 1999, the Second Circuit resolved Adler v. Pataki, an associational discrimination claim brought under the First Amendment. In that case, the plaintiff's wife sued the State of New York, causing the state to retaliate against Adler, the husband. Gorman relied on Adler in proving his case, citing Adler's holding that simple vindictiveness against the plaintiff over his associational relationship with someone else is illegal. But the Second Circuit (Jacobs, Hall and Droney) distinguishes Adler.

Adler was not a Fourteenth Amendment claim: Adler concerned a familial association claim brought pursuant to the First Amendment, alleging that he was retaliated against because his wife filed an employment discrimination lawsuit against the State of New York. In that context, we ruled that “simple vindictiveness against the plaintiff on account of his wife’s lawsuit” was sufficient motive to sustain a familial association claim. Adler thus establishes that First Amendment associational rights protect against state intrusion into a family relationship intended to retaliate for a family member’s exercise of his or her First Amendment rights.

Since The Supreme Court has long held that "th[e] guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property,” and Gorman cannot show that Patricelli deliberately interfered with the family relationship, he cannot proceed under the Fourteenth Amendment. While Gorman claimed that Patricelli tried to antagonize Gorman by telling the sister that she had to control her brother, "any impairment of the sibling relationship was at best the indirect and incidental result of Patricelli’s conduct."

Officer gets qualified immunity for tasing a deaf 15 year-old

A police officer who tased a deaf 12-year-old boy twice has been granted qualified immunity by the Second Circuit, which dismissed the civil rights case on the basis that a reasonable police officer would have believed the tasing was necessary to prevent the boy from acting out any further and hurting someone.

The case is Muchette v. Gionfriddo, issued on December 7. The boy was a student at the American School for the Deaf in Connecticut. He got into an argument with a teacher and ran out of the dorm and entered a nearby, fenced-off construction area, where he hit the teacher, Hammond, with a stick and picked up a large rock before sitting down with the rock, refusing to return to the school. After the police arrived, school officials -- 15 feet away from the boy -- told the boy through sign language to put down the rock. At the officer's behest, the school officials also "told" the boy he would be tased if he did not comply with that order. When the boy appeared to ignore the warning, he got tased. The officer then tased him again when they were unable to place him in handcuffs. The trial court denied the officer's qualified immunity motion, setting this case down for trial, but the officer took up an immediate appeal, and the Second Circuit (Pooler, Walker and Jacobs) reverses the trial court and the officer gets qualified immunity, which means the case is over.

Qualified immunity allows public defendants to avoid suit if their actions were objectively reasonable under the circumstances. Few Second Circuit cases address when the officer can tase someone, but the court applies the cases that deal with the general excessive use of force against noncompliant arrestees and other malcontents who just won't listen.

The district court summarized the evidence:

Officer Gionfriddo shot A.M. in the back with his Taser gun, and electroshock was administered for a period of 5 seconds. However, the two officers were unable to handcuff A.M. at that time, so Gionfriddo administered a second round of electroshock. After the second Taser deployment, the officers were able to handcuff A.M.

Paramedical personnel on the scene removed the Taser prongs and transported A.M. in an ambulance to a hospital. A physical evaluation at the hospital revealed a Taser mark on A.M.'s back, an abrasion to his chest, and a scratch to his right hand.

At deposition, Officer Gionfriddo admitted that A.M. did not make any quick, adverse moves before Gionfriddo fired the projectile prongs into A.M.'s back. Nor did A.M. threaten to throw any rocks in Gionfriddo's presence. Moreover, Gionfriddo testified that if A.M. were to have made any quick moves, Goinfriddo was comfortable that he could disarm him by deploying the Taser at that time.

Gionfriddo was on the scene for under three minutes before resorting to his Taser.

 The officer gets immunity because the school told him the child threw a chair at a staff member, hit Hammond with a stick and threw rocks at Hammond and other staffers. This led the officer to reasonably believe the student was a danger to others. The officer also had a reasonable basis to believe his warnings made their way to the student, as the school-people conveyed them through sign language. While there was some dispute whether the student got the message, the officer reasonably believed the teachers conveyed that message to him, as they were after all school officials who would have wanted to warn the student so that he would not suffer any tasing. As for the second tasing, the Court says plaintiff's lawyer did not make a serious argument on this point.

So what looks like a slam dunk for the student turns into qualified immunity for the officer. I listened to oral argument for this case, and the officer's lawyer opened by acknowledging that his case at first glance looked like an uphill battle, as we are after all talking about two tasings of a deaf child who was situated away from everyone else and did not appear to pose an immediate threat to anyone. But qualified immunity is unforgiving, and it allows police officers substantial leeway. Under qualified immunity, courts will give the police the benefit of the doubt in close cases.

No retaliation claim for officer who exposed sergeant's use of police database to spy on his ex-girlfriend's new boyfriend

The Court of Appeals has held that a corrections officer who exposed a sergeant's abuse of a restricted police database to spy on his ex-girlfriend's new boyfriend can be retaliated against for his speech act because the law was not clearly-established that this kind of whistleblowing is protected under the First Amendment.

The case is Gorman v. Rensselaer County, issued on December 6. I briefed and argued this appeal. Plaintiff worked at the County Jail. The sergeant was dating plaintiff's sister, but the relationship ended when Plaintiff's brother told sis that the sergeant was cheating on her. Meanwhile, the sergeant went to the eJustice database to check up on the new boyfriend's criminal history. The eJustice maneuver violated the new boyfriend's privacy and was against the law; it cannot be used for personal reasons, only legitimate law enforcement reasons. The sergeant was prosecuted for using this restricted database, and he pleaded guilty. Plaintiff, meanwhile, was retaliated against for blowing the whistle on the sergeant.

Under settled First Amendment law, public employees cannot be retaliated against for speaking on matters of public concern, to be determined by the content, form and context of the speech. Public concern speech relates to any matter of concern to the community. At the same time, public defendants can invoke qualified immunity, which disallows the lawsuit for damages if the case law was not clearly-established at the time. While exposure of official police misconduct is "generally of great consequence to the public," the Second Circuit has also stated that "no authority supports the argument that reporting an alleged crime always implicates a matter of public concern," such as in Nagle v. Marron (2d Cir. 2011), where a teacher did not engage in protected speech when she complained that someone forged her name on an official in-school report.

The Second Circuit (Jacobs and Hall) holds that Gorman's speech was not clearly protected under the First Amendment because "there is no indication that [the sergeant] or the other defendants were engaging in an ongoing pattern of misconduct that might concern the public," and the sergeant's "isolated use of a computer program for a private purpose implicated neither public safety nor the use of taxpayer's money." Moreover, the majority holds, "the context was a volatile, intra-family feud that embroiled [the sergeant] and the Gorman siblings," and plaintiff's speech "was calculated to redress Gorman's personal grievances" against the sergeant, had no "broader public purpose" and "was score-settling, and had small practical significance to the public."

Judge Droney dissents, noting that the misuse of the computer system had "practical significance to the general public" because it accesses sensitive information that may only be used for official business and not personal activities. Misuse of the system has "substantial consequences," as the sergeant was suspended for 10 months, charged with two felonies and pleaded guilty to a misdemeanor. He adds that "any public official would have known that [the sergeant's] misuse of [the system] for private reasons would be of substantial public concern." While the majority concluded that this arose from a personal dispute among officers, "we have held that where a personal interest primarily motivated the speech, such motivation does not, on its own, vitiate the status of the speech as one of public concern."

Trial court did not properly analyze whether surveillance at Staten Island courthouse violates Sixth Amendment

Twenty years ago, the City of New York settled a lawsuit claiming the Staten Island courthouse did have private spaces for lawyers to talk to their pre-arraignment clients. When the City opened a new courthouse in Staten Island, the Sixth Amendment concerns resurfaced because the City installed surveillance booths in the attorney-client areas to prevent security incidents. The Court of Appeals says this surveillance situation might violate the Sixth Amendment.

The case is Grubbs v. O'Neill, a summary order issued on December 3. The trial court said the new surveillance cameras do not violate the Sixth Amendment because the cameras use "masking" technology which blocks out the lawyer's face and does not record the attorney-client conversations.

Here is the legal standard governing cases like this:

To evaluate whether an institutional restriction on the Sixth Amendment rights of individuals in custody is valid, we employ a balancing test to determine if the restriction “unreasonably burden[s]” an individual in custody’s “opportunity to consult with his attorney and to prepare his defense.” Thus, it was the district court’s duty to balance the alleged burden the surveillance imposed on Plaintiffs-Appellants’ Sixth Amendment rights on the one hand with the City’s proffered institutional reasons for the surveillance on the other.

In rejecting the plaintiffs' claims, the district court got the analysis wrong because "it misunderstood important Sixth Amendment jurisprudence concerning conduct that chills a detainee’s communications with counsel. Specifically, the district court erroneously concluded that a detainee’s 'subjective impression or belief' that her conversation was being recorded and monitored did not constitute a cognizable burden on the Sixth Amendment. The district court did not appropriately consider the chilling effect that the cameras’ presence in the attorney–client booths could have on pre-arraignment detainees’ willingness to communicate candidly with their attorneys."

Since the trial court had to "weigh any chilling effect of the surveillance cameras against the City's security interests to determine whether the video surveillance with masking technology violates the Sixth Amendment," the case is sent back to the trial court to give this case a fresh look.

Second Circuit says jury can find police falsely arrested schoolteacher over her classroom supervision

The Court of Appeals has reinstated a false arrest and malicious prosecution lawsuit filed by an Orange County school teacher who was arrested for Endangering the Welfare of a Child arising from her classroom supervision of a three-year-old special needs child. The law firm of Bergstein & Ullrich, LLP, and Scott A. Korenbaum, Esq., represents the plaintiff.

The case is Pehush v. Ashworth, issued on December 4, 2018. Plaintiff taught at a private school, which called the police to report that plaintiff had allegedly abused the child by (1) placing the student in the corner of the classroom with a divider on the desk, preventing her seeing the other children; (2) allowing the child to each lunch 45 minutes to an hour after the other children ate lunch; (3) cancelling the child's session with a speech therapist; (4) disallowing the child from going to gym class; and (5) keeping the child in a wet diaper for an extended period of time. When Detective Ashworth arrived at the school, her investigation revealed the facts were less incriminating than the initial report. For example, Plaintiff isolated the child because she was acting out but still gave her 1:1 attention during the school day behind standard cardboard dividers to focus the child's attention; the student's diapers were changed throughout the day; and the child was never in distress. Ashworth did not speak with the teaching assistant who was present in the classroom (who would have exonerated Pehush), and her interview notes with plaintiff did not accurately reflects what plaintiff told her about the incident.

While the district court granted Ashworth qualified immunity on the basis that she had arguable probable cause to make the arrest, the Court of Appeals says the jury can rule in plaintiff's favor, and the case is remanded for trial. The Endangering statute is "unconscionably" broad, as one of the Second Circuit judges stated at oral argument. It says that a person violates the statute if she "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." If the defendant was "aware that the conduct may likely result in harm to the child," she can be arrested. The jury can find that Ashworth had no basis to find that plaintiff violated the statute.

The Circuit (Calabresi, Katzmann and Lohier) says that "there are reasons to doubt Ashworth's credibility" because her "report memorializing her interview with Pehush is at best inaccurate and at worst intentionally misleading" on various material facts, such as when the girl ate her lunch and why Pehush isolated her from the other students (she was consistently throwing things around). Also, while Ashworth arrested plaintiff based on secondhand reports from school administrators, the jury can find she ignored exculpatory evidence from a second classroom aide, Crosby. "Most importantly . . . Detective Ashworth testified that Crosby told her that Pehush worked with [E.H.] throughout the day, and Crosby's sworn statement that E.H. 'was kept in the room with only' Pehush when other students went to the gym supports that claim." Also, Crosby told Ashworth that Pehush worked one-on-one with the student all day. In addition, Ashworth did not "take . . . easy investigative steps" to further investigate the allegations, suggesting "that she had made up her mind based solely on . . . secondhand reports." Put another way, the jury can find that "no reasonable officer would think that E.H. was at risk of meaningful injury," as required under the Endangering statute.

Interesting side-note to this case. Plaintiff brought a state law false arrest claim against the Town of Wallkill. The district court dismissed that claim because it found that Ashworth had qualified immunity based on "arguable probable cause," a standard that allows many police officers off the hook. Plaintiff argued that the Town may still be held liable even if the arresting officer had qualified immunity, so long as no probable cause existed for the arrest. The Second Circuit has said that municipal liability cannot attach when the arresting officer has qualified immunity, but that case said that in the course of a brief discussion in Kass v. City of New York (2d Cir. 2017). The Second Circuit remands the state law claim to the district court, suggesting that the language in Kass might not be binding after all.