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."