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."
It will be interesting to see what they do with your petition for rehearing. Knotty area of law. As you know from oral argument, I believed no privacy rights were implicated, and I was disappointed the opinion didn't focus more on the fact that no privacy right attaches to a person's outstanding warrants, which are public information. Plus, Patricelli never looked at the E justice system himself. A lieutenant did that for him. He had no training, access or other information about the restrictions on the E justice system. And he only pled guilty to misuse of a computer, which he never touched, because of the custody issues he was having with Gorman's sister and because he had an assault charge against him for threatening Gorman. So he compromised the felony charges to a misdemeanor. The dissent in the case focuses heavily on what the E justice system contains that is not public that could be misused by someone. But that is not this case. The record is undisputed that Patricelli asked someone to check for outstanding warrants on the new boyfriend. He did that because he didn't want his teenage son driving with the guy and getting into a chase when he got stopped and the warrant popped up. This is not really a mischievous use of the E justice system that should properly be prevented. But that is getting into the weeds of the Record on Appeal a little. We shall see! Kevin Martin (defense counsel)
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