Friday, March 22, 2019

Judge's ex parte conversation with jury gets defendants a new trial

This case is maybe the most bizarre criminal appeal this year from the Second Circuit. The Court of Appeals orders a new trial for two people accused of marriage fraud because the trial judge had an ex parte conversation with the jurors and may have compromised the integrity of the jury process by undermining the presumption of innocence.

The case is U.S. v. Mehta, issued on March 21. The defendants are a man and woman who were charged with charged with marriage fraud in violation of the immigration laws. During trial, the judge met with five jurors to discuss their concern about the defendants' behavior outside the courthouse during trial. The jurors told the judge that the defendants "have been kind of lingering and staring, like, walking noticeably slow and I feel like I see them, see me, if I was coming in, even if I've been behind them, like, from the second floor parking ramp to the entrance." In other words, the jurors thought the defendants were following them around suspiciously outside the building. The judge told the jurors, "That's disturbing," and said he would assign a court officer to accompany the jurors to their cars. The judge also told the jurors that, after years of presiding over trials, this situation was unusual. The lawyers were not present during this colloquy. When the judge discussed this issue with the lawyers moments later, he instructed counsel to tell their clients "to stay the hell away from the jury."

At the close of trial, the judge instructed the jury, "You may consider the fact that a defendant's interest in the outcome of the case creates a motive for false testimony, but it by no means follows that a defendant is not capable of telling the truth."

New trial for defendants. The ex parte conversation with the jurors was wrong because whenever the jury communicates with the court during trial (even if it's in the form of a note), counsel must be present. This is what the public trial provision of the Bill of Rights is all about. The same holds true when the court communicates with the jury. That did not happen here. Counsel is supposed to get involved in these conversations because they can suggest how to handle the inquiry. While the defendants were charged with non-violent crimes, "the judge's comments to the jurors strongly implied that the defendants posed some kind of threat of physical danger to the jurors." Defendants' counsel could have helped find a better way to deal with the jurors' concerns. Making matters worse, the other jurors who were not present during this ex parte meeting were never told what happened in that meeting, which raises the risk that the jurors "reached unfounded conclusions about the defendants . . . without any guidance from the District Court or from counsel."

Making matters worse was the jury charge, which violated the settled rule that "district courts should not instruct juries to the effect that a testifying defendant has a deep personal interest in the case." The jury charges undermines the presumption of innocence. Taken together, these trial errors get defendants a new trial. 

Wednesday, March 20, 2019

Retaliation case fails for a variety of reasons

A pretty basic rule governing retaliation claims is that a case can survive a motion for summary judgment if the plaintiff has a timeline that shows everything at work went south shortly after he engaged in protected activity, i.e., filed an EEOC charge, internally complained about discrimination, etc. But many cases are not so clear-cut. We have nuances.

The case is Hazelwood v. Highland Hospital, a summary order issued on March 1. The plaintiff requested an accommodation because of her disability (she is hearing-impaired). At some point, she complained about discrimination. Then she got fired. At the cocktail party, it would sound like plaintiff has a retaliation case. But she does not, the Court of Appeals (Raggi, Sullivan and Hall) says, for the following reasons:

First, in order to have a good retaliation claim, your internal discrimination complaint must be made in good faith. The decision does not provide enough details on this issue, which is too bad, because I don't see too many cases holding the initial complaint predicating the retaliation claim was made in bad-faith. Often, defendant's counsel does not even argue the complaint was made in bad faith. But here, the Second Circuit says, plaintiff's complaint about discrimination was conclusory and that a particular form that was relevant to her employment was "redundant," not that it constituted discrimination in violation of the Americans with Disabilities Act.

Second, even if the complaint was made in good faith, plaintiff's termination took place too long after she made that complaint. As the Court of Appeals notes, "while a causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action, the temporal nexus here -- ten months -- is insufficient to establish such a connection." This sounds about right. I have seen Second Circuit extend the timeline to eight months, but many cases are dismissed even under a shorter timeline. There is no bright-line time-frame for these cases. The Court in this case cites Clark County Sch. Dist. v. Breedon, 532 U.S. 268 (2001), which says prior cases "uniformly hold that the temporal proximity must be 'very close.'" That language actually conflicts with Second Circuit cases that allow for an eight-month gap. But we can worry about that for another day.

What really kills the case is that supervisors began criticizing plaintiff's job performance before she even complained about discrimination. "Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise," the Second Circuit says, citing Slattery v. Swiss Reinsurance, 248 F.3d 87 (2d Cir. 2001).

Tuesday, March 19, 2019

Suspended student has no due process claim under Section 1983

This plaintiff says the public school denied him due process in suspending him for most of his senior year in high school following a hearing. The Court of Appeals sees it differently, giving us a brief tutorial in how federal due process claims work in cases like this.

The case is Horton v. Board of Education of the Sherburne-Earleville Central School District, a summary order issued on March 15. Horton was suspended over "alleged bullying and other violations of his school district's Code of Conduct." While the district gave him a hearing, Horton says it was bogus. The numerous procedural flaws include the hearing officer's alleged advocacy for the district during the hearing, the hearing officer ignored exculpatory evidence and met ex parte with district officials several times during the hearing and appeals process. The Court of Appeals (Katzmann, Livingston and Droney) says it does not matter.

For Horton, due process may be realized post-hearing, when he can file an Article 78 petition in state court. Now, an Article 78 petition may not be as exciting as a federal lawsuit, but at least in theory, the state court can find the hearing was arbitrary and capricious, the standard governing these expedited proceedings. The availability of an Article 78 petition is by itself a due process remedy provided by the State of New York. The Second Circuit has held that many times over the years, including in Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877 (2d Cir. 1996).

How does Horton get around this? He says the Article 78 remedy is inadequate in part because that proceeding does not provide for money damages. But the Court of Appeals held in the Hellenic case that Article 78's are adequate for due process purposes "even though the petitioner may not be able to recover the same relief that he could in a Section 1983 suit."

Friday, March 15, 2019

Appellate Division allows defamation claim against Trump to proceed

A state appellate court in Manhattan has ruled that a woman may sue Donald Trump for defamation even while he occupies the White House, rejecting an expansive interpretation of the constitutional Supremacy Clause and holding that this provision "does not provide a basis for immunizing the President from state court civil damages actions."

The case is Zervos v. Trump, decided on March 14. Zarvos was a contestant on the Apprentice, a game show starring the future President. After the Access Hollywood tape surfaced in October 2016 in which Trump was caught on video stating he was able to use his celebrity to sexually assault women, Zervos publicly accused Trump of sexually assaulting her in 2007. Trump then called Zarvos and other accusers liars. Zervos sues Trump for defamation.

The primary issue is whether the Supremacy Clause prevents you from suing the President in state court for acts that predate the presidency. The Appellate Division holds in a 3-2 vote that the Clause does not prohibit such a lawsuit. The Supremacy Clause states that federal law has primacy over state law, so that any state law that conflicts with federal law is a nullity. Trump's lawyers argued that the Supremacy Clause also means that a state court has no authority over the President because he is the "ultimate repository of the Executive Branch's powers and is required by the Constitution to be 'always in function.'" The Appellate Division says this interpretation "finds no support in the constitutional text or case law," and that "Despite the assertion in his brief that he is the 'embodiment of the Executive Branch,' and although he is tasked with significant responsibilities, the President is still a person, and he is not above the law."

The case is full of irony. The key precedent in this area is Clinton v. Jones, a Supreme Court ruling from 1997 that held Paula Jones could sue President Clinton for sexual harassment that predated Clinton's presidency, so that Jones' lawyers could require Clinton to give sworn testimony as a sitting President. The Appellate Division says Clinton v. Jones compels the holding that Trump may also be subjected to pretrial discovery. It was the deposition testimony in Jones' case that led to Clinton's perjury and impeachment. For the first time in 20 years, impeachment is back in the American conversation. What if Trump denies assaulting Zervos, but Zervos produces solid eyewitness testimony or other evidence to the contrary?

As an aside, during the oral argument in Clinton v. Jones, the Solicitor General (who defends the federal government before the Supreme Court) tried to argue that even Paula Jones' lawsuit would intrude on presidential scheduling. Justice Scalia shot back the following:

But we see Presidents riding horseback, chopping firewood, fishing [laughter in the courtroom], playing golf and so forth and so on. Why can't we leave it to the point where, if, and when a court tells a President to be there or he's going to lose his case, and if and when a President has the intestinal fortitude to say, ''I am absolutely too busy'' -- so that he'll never be seen playing golf for the rest of his Administration [laughter] -- if and when that happens, we can resolve the problem. But really, the notion that he doesn't have a minute to spare is just not credible.

The Appellate Division ruling also has a few passive-aggressive case and other citations. The Court summarizes the holding in Nixon v. Fitzgerald, a Supreme Court ruling from 1982 that said a federal employee cannot sue an ex-President for actions the defendant took while in the Oval Office. We all know about President Nixon's retaliatory impulses, but the Appellate Division does not have to remind us that Nixon resigned the presidency to avoid impeachment. Another passive-aggressive act in the ruling is citation to a prior defamation case against Trump for the proposition that the false but rock-solid denial of an embarrassing allegation (along with calling someone a liar) is potentially libelous as opposed to nonactionable hyperbole, which the listener may not take seriously. As that legal principle is well-settled under New York law, the Appellate Division did not really have to cite that case. But, what the hell, right?

The Appellate Division also cites a law review article written by Brett Kavanaugh in 2009 that suggests Congress can enact a law prohibiting lawsuits against sitting Presidents for pre-presidential actions. (Congress has never passed such a law). The Appellate Division did not have to cite the Kavanaugh article, as the Court also cites Clinton v. Jones for the same proposition. My guess is the Appellate Division highlights the Kavanaugh piece because this case may wind up in the Supreme Court, a place that Kavanaugh now calls home. And, again, what the hell.

Two judges dissent from this ruling, stating in part that the Supremacy Clause cannot allow this case to proceed because a state court does not have authority to regulate presidential behavior by compelling him to respond to discovery demands, to sit for a deposition, and to appear before it. The dissenters also offer what it deems the unacceptable hypothetical that, under the majority's holding, the state court would have power to hold the President in contempt. I just throw that out there.

Wednesday, March 13, 2019

Topless gardener may sue police for false arrest

A federal court in White Plains holds that a topless gardener can sue the police for arresting her for public lewdness.

The case is Igoe v. Village of Red Hook, 18 Civ. 3846, 2019 WL 1015174 (S.D.N.Y. March 4, 2019), issued by Judge Briccetti of the Southern District of New York. I am co-counsel to the plaintiff, along with Christopher D. Watkins, Esq. Plaintiff lives in a rural area. On hot days, she gardened in her front yard without her top. Someone complained to the police about this, and plaintiff was arrested and booked. The local criminal court dismissed the charges, finding the arrest was not legal because courts have already held that women cannot be arrested for going topless in public.

Under the New York Penal Law, "A person is guilty of public lewdness when he or she intentionally exposes the private or intimate parts of his or her body in a lewd manner or commits any other lewd act: (a) in a public place, or (b) (i) in private premises under circumstances in which he or she may readily be observed from either a public place or from other private premises, and with intent that he or she be so observed."

Plaintiff was arrested under this statute. The problem is that, in 1991, the New York Court of Appeals ruled that arrests like this are illegal. As Judge Briccetti wrote:

The New York Court of Appeals, however, refused to apply Section 245.01 to topless women protesting in a Rochester, New York, park. See People v. Santorelli, 80 N.Y.2d 875, 877 (1992). Recognizing the statute was originally enacted to discourage topless waitresses and their promoters, the court found the statute does not apply to the noncommercial exposure of a woman’s breasts. Id. Since then, no court has upheld the arrest of a woman for the noncommercial exposure of her breasts, and the media has widely recognized the holding in Santorelli as allowing women in New York to be topless in public.
That reference to the media comes with a footnote from the New York Times, which reported on the issue in 2015. You don't see newspaper articles quoted in court rulings this way, but it does show that the public is aware that arrests like this are not legal. For these reasons, the arresting officers are also not entitled to qualified immunity.

Monday, March 11, 2019

Needle-phobic pharmacist prevails on appeal in disability disability case

If you want a reasonable accommodation under the disability laws, you have to show the accommodation will not eliminate an essential job function, so that you can still perform your job duties despite the accommodation. These cases can be won and lost on whether the accommodation actually impacts an "essential" job duty.

The case is Noel v. Wal-Mart Stores, LP, a summary order issued on March 11. Noel was a pharmacist who suffers from trypanophobia (or needle phobia). That was a problem. In April 2016, Wal-Mart announced that all new pharmacy employees would be required to be certified to administer immunizations right away and all other employees would be required to be so certified by October 16, 2016. Since immunizations involve needles, you get the picture. Noel could not do this. He asked management to exempt him from this requirement. In June 2016, Wal-Mart told him in writing that administering immunizations was not an essential job function. Good news for Noel.

But then in October 2016, a Walmart representative told Noel that he would have to obtain certification to continue his job, which Noel declined to do. Noel claims that he was constructively discharged at this time. The district court granted Wal-Mart's Rule 12(b)(6) motion on the basis that administering immunizations was an essential job function, so that no accommodation could allow him to perform his duties.

The Court of Appeals (Hall, Lynch and Gardephe [D.J.]) reverses. Noel has a case. The district court overlooked his Wal-Mart told Noel in July 2016 that using the needles was not an essential job duty. Here's the law on essential job duties:

When considering whether a job function is “essential,” “this Court considers ‘the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the mention of the function in a collective bargaining agreement, the work experience of past employees in the position, and the work experience of current employees in similar positions.’”
This is a fact-specific inquiry. That means that a recent Second Circuit case on similar facts, Stevens v. Rite-Aid Corp., 851 F.3d 224 (2d Cir. 2017), where the jury verdict in plaintiff's favor was vacated because the needle-phobic pharmacist could not show that eliminating the immunization job duty was not an essential job duty, does not control this case. In Stevens, there was no dispute the needles were an essential duty. Not in Noel's case.

In Stevens, it was undisputed that Rite Aid changed the job description for pharmacists to include immunizations as an essential duty of the position. Here, however, Noel specifically alleges that his job description had not yet changed as of the time of his constructive discharge, and Walmart’s July letter—which grants him  an accommodation on the ground that administering injections was not an essential function of the job—tends to support that allegation. The question then becomes whether the district court was correct when it held that, even taking the factual allegations of the complaint as true, administering injections was an essential function of Noel’s job.
It all comes back to the July 2016 letter that said administering the needles was not an essential job function. The Second Circuit concludes,

The only way to arrive at the conclusion reached by the district court—that it was established as a matter of law that administering immunizations was an essential function of Noel’s job—is to both discredit Noel’s well-pleaded allegation and discount Walmart’s own July statement. This a court
may not do on a motion to dismiss. At least at this stage of the litigation, the district court erred by concluding, as a matter of law, that administering immunizations was an essential function of Noel’s job.

Thursday, March 7, 2019

Court of Appeals finds ADA plaintiff makes out a hostile work environment claim

The Second Circuit holds for the first time that the Americans with Disabilities Act makes it illegal for an employer to maintain a hostile work environment on the basis of an employee's disability. The Court then reinstates the claim brought by a disabled worker who was harassed because of his disability.

The case is Fox v. Costco Wholesale Corp., issued on March 6. Plaintiff worked for Costco on Long Island. He has Tourette's Syndrome and Obsessive Compulsive Disorder. As a result of his neurological condition, plaintiff would often touch the floor before moving, and he would cough when he felt a verbal tic coming on to prevent others from hearing him use foul language. But his coworkers mocked him over his disability. Summarizing his testimony, the Court of Appeals (Hall, Droney and Jacobs) writes:

In his deposition, Fox described how certain Costco employees would make “hut‐hut‐hike” remarks to mimic Fox’s verbal and physical tics. Fox also testified that these comments “were audible to the managers of the Holbrook warehouse from their position on the warehouse’s podium,” and “happened in plain view of the Supervisors and the Front End Managers and nothing was ever said.” Fox testified further that these types of comments happened for “months and months” and “whenever” he would experience tics.
Plaintiff eventually complained to Costco's CEO about the stressful work environment which was aggravating his Tourette's. While Costco investigated this complaint, the harassment continued, and he was singled out for minor acts of misconduct that coworkers had gotten away with.

Two issues on the hostile work environment claim: (1) does the ADA recognize such a claim and (2) is there a  hostile work environment.

On the scope of the ADA, the Court says that the ADA's language relating to "terms, conditions and privileges" of employment is identical to the protections under Title VII, which does prohibit a hostile work environment on the basis of race, sex, etc. Since the Supreme Court had already held that Title VII prohibits a hostile work environment when the ADA was enacted in 1990, we can assume that Congress intended the ADA to protect disabled workers from disability-related harassment. Plus, the Fourth, Fifth, Eighth and Tenth Circuits have already interpreted the ADA this way, so the Second Circuit safely joins them, giving plaintiffs a new federal cause of action in this jurisdiction.

As for whether Fox has a hostile work environment claim, some managerial acts do not get him there, including certain discipline for not performing his duties properly, as "legitimate reprimands by an employer are not abuse." But the jury may find that plaintiff suffered ongoing and pervasive harassment from coworkers who ridiculed his disability. While the district court in dismissing this claim said plaintiff had to introduce “evidence regarding the number of times the comments were made per shift, week and/or month” to show that the “hut‐hut‐hike” comments pervaded Fox’s working environment. But that "demand[s] too much of Fox, the Court of Appeals says, because he "is not required to list the shift, week, or month to be able to present this issue to a jury." The Second Circuit has said this before, and it now says it again. A plaintiff in a hostile work environment case will not remember the times and dates or even the specifics of much of the harassment. But testimony like this will survive summary judgment. The Court explains:

Because Fox identified specific comments—his co‐workers mocking his Tourette’s by repeating “hut‐hut‐hike,” presumably while touching the floor—and because he testified that “whenever I said [the F word], they said ‘hut‐hut‐hike’” for “months and months,” Fox has provided evidence sufficient to meet his burden to demonstrate pervasiveness. On Fox’s evidence at this stage, we hold, a reasonable fact finder could conclude that the “hut‐hut‐hike” comments made for months by co‐workers when Fox experienced verbal tics were sufficiently severe and pervasive to change the conditions of Fox’s employment. Since the phrase “hut‐hut‐hike” is borrowed from football, and Fox alleges that he often touched the floor when he suffered from verbal tics, presumably resembling a three‐point stance, we can fairly infer that the phrase “hut‐hut‐hike” was mockery of his disability as opposed to, for example, discussing last night’s game or motivating each other to get going.

In addition, and crucial to our analysis, Fox introduced evidence that his supervisors witnessed this conduct for “months and months” and did nothing, demonstrating a specific basis for imputing the objectionable conduct to Costco. Thus, Fox has met his burden to defeat Costco’s motion for summary judgment on his hostile work environment claim.

Tuesday, March 5, 2019

Fair Housing Act requires landlords to deal with tenant-on-tenant racial harassment

The Court of Appeals has expanded the scope of the Fair Housing Act, holding that landlords can be held liable for failing to deal with racist neighbors who create a racially hostile housing environment.

The case is Francis v. Kings Park Manor, Inc., issued on March 4. The Fair Housing Act contains two provisions relevant to this case: (1) Section 3604(b) makes it unlawful to discriminate in the "terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities therewith, because of race" and other protected characteristics; and (2) Section 3617 makes it unlawful to "coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment, or on account of his having exercised" any right under the FHA. Plaintiff invokes these provisions against his landlord, who did nothing after plaintiff repeatedly complained about his neighbor's racist comments and threats, which resulted in the neighbor's arrest and issuance of an order of protection.

The Second Circuit (Lohier, Pooler and Livingston [dissenting]) says the FHA gives plaintiff a claim. First, the Court holds the FHA provides "post-acquisition protection" for renters who have already moved in, as the "privileges" language in the Act implicates continuing rights. The Court draws from the Seventh Circuit's ruling in Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009), for this proposition. The Court of Appeals further draws from Title VII's prohibition against employment discrimination, which promotes similar goals and requires management to protect employees from co-worker harassment. While "the analogy between the employer-employee relationship and the landlord-tenant relationship is imperfect and goes only so far, it nevertheless would be strange indeed if the nearly identical language of the FHA did not also impose liability for post-acquisition discrimination on landlords under certain circumstances."'We conclude that the FHA reaches conduct that, as here, “would constitute discrimination in the enjoyment of residence in a dwelling or in the provision of services associated with that dwelling' after acquisition."

The Circuit next determines the scope of the post-acquisition remedy, holding that under Section 3617, the coercion and threats prohibited under that provision creates rights distinct from Section 3604(b). The Court also relies on HUD regulations that require landlords to protect tenants from racist intimidation and threats from other tenants. The Seventh Circuit has already held that the FHA creates liability against landlords who have actual notice of tenant-on-tenant racial harassment but fails to take any reasonable steps to stop it. While the Second Circuit notes the FHA does not directly speak to this issue, "we have never required every last detail of a legislative scheme to be spelled out in a statute itself—especially a civil rights statute. After all, the FHA also makes no explicit reference to liability for actual or constructive eviction, or for landlord-on-tenant intentional harassment, even though both forms of liability are widely recognized."

Under the new rule announced in this case, drawing from HUD regulations, the Second Circuit says this:

a plaintiff “must prove ... to establish a housing provider’s liability for third-party harassment: (1) [t]he third-party created a hostile environment for the plaintiff ...; (2) the housing provider knew or should have known about the conduct creating the hostile environment;” and (3) notwithstanding its obligation under the FHA to do so, “the housing provider failed to take prompt action to correct and end the harassment while having the power to do so.”
Under this new framework, plaintiff states a claim against the landlord, and the lawsuit is reinstated.

In dissent Judge Livingston writes that "The majority justifies its novel and expansive theory of landlord liability for tenant-on-tenant harassment by invoking the 'broad language' of the FHA. But I can find no support for the majority’s decision in the FHA’s text, our precedent, or the background tort principles that informed Congress at the time the FHA was enacted." She adds:

the case is not about the heinous conduct of horrible neighbors, nor whether to condone it. Instead, the question here is whether this Court properly construes Title VIII of the Civil Rights Act of 1968, referred to as the Fair Housing Act, to impose a duty on landlords to monitor and remediate the behavior of one’s neighbors, on pain of incurring liability for damages and litigation costs, including attorney’s fees. The majority does not properly construe the FHA to impose such third-party liability for the conduct of neighbors. Instead, it steers the FHA into “unchartered territory,” where courts improbably discover new causes of action in half-century-old provisions, and heedless of the deleterious consequences for parties, courts, and the housing market.

we conclude that the FHA reaches conduct that, as here, “would constitute discrimination in the enjoyment of residence in a dwelling or in the provision of services associated with that dwelling” after acquisition

Francis v. Kings Park Manor, Inc., No. 15-1823-CV, 2019 WL 1006554, at *5 (2d Cir. Mar. 4, 2019)

Monday, March 4, 2019

Due process not violated in Amtrak cash seizure

What does due process mean anyway? That phrase is enshrined in the Fourteenth Amendment, which says the government cannot deprive someone of liberty or property with due process. On other words, the Fourteenth Amendment gives you a fair chance to defend yourself against arbitrary governmental decision making, which does not necessarily mean you get a full evidentiary hearing before the government carries out the deprivation. It does not even mean you get a chance to defend yourself before the government commits the deprivation, so long as you have a post-deprivation chance to defend yourself and correct the injustice.

The case is Chunn v. Amtrak, issued on February 21. While plaintiff was sleeping in the Amtrak waiting area at Penn Station, an Amtrak officer roused him awake, starting a confrontation that got plaintiff arrested. The police also found over $10,000 in cash on plaintiff, which prompted a call to the DEA, which seized the money for possible forfeiture as proceeds of drug sales. No one gave plaintiff a chance to contest the seizure of his money, but the rules allow him a chance to contest the seizure after-the-fact. Is this due process? This is due process.

The Eighth Circuit had a case like this more than 20 years ago, Madewell v. Downs, 68 F.3d 1030 (8th Cir. 1995), which said seizures like this do not violate due process since the plaintiff can deal with the seizure afterwards under certain procedural rules, 21 U.S.C. 881 and 18 U.S.C. 981. Madewell is now the law in this Circuit, as well.

Friday, March 1, 2019

Female officer in Syracuse can prove gender discrimination

The Second Circuit does not often vacate the grant of summary judgment in disparate treatment employment discrimination cases. It does so here, finding that the Syracuse Police Department discriminated against a female police officer by suspending her for insubordinate behavior.

The case is Dotson v. City of Syracuse, a summary order issued on February 27. Dotson is the female officer. (She has prevailed against the City in prior gender discrimination cases). During a brief interaction with superiors, Dotson complained about parking arrangements. When a sergeant told plaintiff to return to her desk, plaintiff told the sergeant to butt out, that she was speaking with someone else. Eventually plaintiff complied, though the parties dispute whether anyone raised their voices. Management wanted her fired for insubordination, but she eventually got a five-day suspension, which an independent arbitrator vacated, ordering the department to reimburse plaintiff for back pay.

Plaintiff has a disparate treatment claim because she was treated differently than male officers who also engaged in misconduct. The test is whether she was "similarly situated in all material respects to individuals with whom she seeks to compare herself," as per Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000). About two years after all this went down, a male officer was only issued a written reprimand and lost one furlough day for disobeying a direct order. Plaintiff was comparable to this male officer because, while he violated the department's "courtesy" rule, his misconduct was still similar to plaintiff's, as he failed to comply with a directive. While the City argues that plaintiff and the male officer are not "similarly situated" because different labor agreements governed their employment, they still had to comply with the same workplace rules of conduct. In the end, a jury must decide if plaintiff's discipline, "which stemmed from an unusually (and suspiciously) harsh recommendation by [a superior officer], was motivated in part by discrimination against women.

In addition, other male officers received lesser discipline or "arguably similar behavior," as one officer lost only three days' furlough for disobedient behavior, and another officer violated a direct order to stop trying to influence the course of an investigation by an outside agency. Yet another officer lost only two days' furlough for not being "courteous and respectful" while "being counseled for his handling of a call by a supervisor," and act of insubordination. All this misconduct is materially similar that the jury may conclude that plaintiff was singled out for harsher discipline. It looks like the trial court, in granting summary judgment, was over-analyzing whether all this misconduct was sufficiently similar to each other. But we let the jury over-analyze these cases in close calls.

We also have some sexist comments by defendants, further bolstering plaintiff's case. The Second Circuit (Wesley, Cabranes and Calabresi) says these are not stray remarks, the usual defense when ugly comments surface in discovery. One of the supervising officers, Sweeny, said in 2004 that "The broads can't work together. They'll just be calling for back up all the time and [there won't be] cars covering the other territories." Sweeny continued to separate the female officers until a supervisor "told him not to make any changes to the officer schedules unless absolutely necessary." And, in 2012, during roll call, Sweeny "verbally harassed a subordinate black female police officer with the demeaning comment 'she's angry. Come here you angry black woman.'" What is more, in 2010, another supervisor, Kleist told a police captain "to not hire any more females as they are the ones he's having problems with" and that "another female would just add to the problems he's having with the female parking checkers and that they would teach the new one how to avoid work." While the district court thought these were all "stray remarks," the Second Circuit does not see it that way. The Court of Appeals reasons:

The district court labeled this behavior as “stray sexist remarks” and explained that, “[a]t most, [Dotson’s] evidence shows that Defendants Sweeny and Kleist harbored a general bias against women, but not that this attitude affected the decision to discipline her for insubordination.”

This conclusion is not supported by the timing of the conduct. Kleist’s sexist remarks occurred after Dotson’s suspension. In light of the larger context, a reasonable juror could infer that when he reported a female employee for insubordination following a short disagreement over parking, Kleist harbored the same views that he expressed explicitly just two years later. Moreover, Sweeny’s remarks came both before and after Dotson’s suspension, and the 2012 comment evinces precisely the sort of bias that is allegedly at issue here: disproportionate intolerance for (perceived) anger and disrespect from a female subordinate. Again, a reasonable juror could infer that Sweeny’s views influenced his treatment of Dotson, particularly in light of the differences in how Sweeny treated arguably similarly‐situated male employees.

Thursday, February 28, 2019

Inmate repels qualified immunity in 2d Circuit

Yes, inmates have rights. No, they are not easily proven. Even if the inmate gets shafted, the correction officers and prison doctors can invoke qualified immunity, which dismisses the case unless plaintiff can show the defendants violated clearly-established rights in light of the facts of the case. This inmate survives that formidable hurdle, the bane of all plaintiffs' civil rights lawyers.

The case is Neary v. Wu, a summary order issued on February 19. After plaintiff began experiencing severe pain in his breast and found irregular lumps, defendants prescribed medication that did not alleviate the pain, denied him a recommended surgical consultation to consider removal of the breast tissue, refused him a soy-based diet designed to reduce his symptoms and abruptly stopped a narcotic pain medication that caused withdrawal symptoms. This deliberate indifference claim proceeds under the Eighth Amendment.

Plaintiff can proceed with his case, the Second Circuit (Winter, Pooler and Abrams [D.J.]) says, because the case law is clear that  "prisoner-plaintiff establishes a 'serious medical need' where she suffered 'chronic pain the magnitude of which probably falls somewhere between annoying and extreme.'" That case is Brock v. Wright, 315 F.3d 158 (2d Cir 2003). Another case, McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004), holds that doctors who fail to run required tests despite obvious symptoms, fail to initiate necessary and apparent treatment, fail to arrange follow-up visits despite doctor's orders and deny treatment pursuant to flawed policies cannot invoke qualified immunity, since these derelictions can support a deliberate indifference case.

Plaintiff satisfies these standards, at least for now, at the pleading stage, where all facts are deemed true. Maybe defendants can argue qualified immunity again once discovery is over, for for now this case moves forward.

Wednesday, February 27, 2019

Circuit grants habeas in murder-for-hire case based on recanted testimony

This habeas corpus case is quite complicated. It started with a drive-by shooting in 1993 and various eyewitnesses who said the defendant was guilty of a murder-for-hire. It ends with the U.S. Court of Appeals more than 25 years later finding the defendant was denied a fair trial. Along the way, we have some interesting holdings.

The case is Fernandez v. Capra, decided on February 22. Under the federal habeas law, state court convictions cannot be attacked as unconstitutional in federal court unless the state court unreasonably applied settled Supreme Court authority. Here, we have an arresting officer who, it turns out, was under investigation for selling drugs at the time of the criminal trial, and eyewitnesses who recanted their testimony post-trial.

As for the cop, he was accused of selling cocaine to another officer before he was actually hired as an officer. The prosecution did not tell the defendant in the case about the officer's alleged drug dealing until a few days after defendant was found guilty of murder, on the basis that authorities were skeptical about the drug-dealing allegations. But, the Second Circuit says, withholding that Brady material until after the defendant was convicted in this murder case was unconstitutional, as it was up to defendant and his lawyer -- and not the prosecution -- to exercise judgment in determining whether the defendant should make use of it on cross-examination. However, that error was harmless in the overall scheme of things because the bad-officer's testimony was not critical to the case against Fernandez.

But Fernandez has other arguments in seeking a new trial. Two eyewitnesses recanted their testimony post-trial, claiming the drug officer coerced their identification testimony. The Second Circuit agrees that one brother's recantation was incredible because he was "extremely evasive" at the post-trial hearing on this issue. As for the other eyewitness, Canela, he claimed post-trial that Fernandez was not the shooter and he had never seen him before in his life, contrary to his trial testimony. He said he felt pressure from the detectives to lie at the trial. The Court of Appeals gives little weight to the criminal court's conclusion that Canela tried too hard to be convincing, and the Circuit instead says that Canela (who was 18 at the time) overall gave credible testimony at the post-trial hearing as to why he lied and what he actually saw on the day of the shooting and how the detectives pressured him into identifying Fernandez. As the Second Circuit says there is a good chance Canela's perjury made a difference at trial, Fernandez wins his habeas petition, as the state court's rejection of Canela's recantation testimony was an "unreasonable determination of the facts in light of the evidence presented" under the habeas statute. Having read many Second Circuit habeas rulings over the years, I cannot remember the last time someone prevailed at the Court of Appeals on this basis. I would say Fernandez had some damned good lawyers working for him in his appeal.

Tuesday, February 26, 2019

Some guidance on naming John Doe defendants in Section 1983 cases

One of the pitfalls in handling civil rights cases under Section 1983 is that you have to identify the correct defendant, usually a police or correction officer. It is not enough to name the officer's employer, as Section 1983 does not recognize respondeat superior liability, that is, the employer is not automatically liable just because one of its employees violated the law. That brings us to the pitfalls of naming John Doe defendants as placeholders until the plaintiff can figure out who the real defendant is.

The case is Ceara v. DOCCS Officer Joseph Deacon, issued on February 21. Under Barrow v. Weathersfield Police Dept., 66 F.3d 466 (2d Cir. 1995), you have to formally identify the John Doe defendants in your complaint within three years of the civil rights violation (which is the statute of limitation in New York). This is so because identifying the John Doe defendant is the equivalent of adding a new party , and new parties have to be added within the statute of limitations. On the other hand, if you are correcting a mistake in the caption (i.e., you named the wrong person), then the statute of limitations stopped running the day you filed the lawsuit provided the real defendant knew or should have known you intended to name him as the defendant all along. Further complicating things, in Krupski v. Costa Crociere, 560 U.S. 538 (2010), the Supreme Court said that "a plaintiff's knowledge of the existence of a party does not foreclose the possibility that she has made a mistake of identity about which that party should have even aware." As Krupski is a mistaken-defendant case and not a John Doe replacement case, it does not overrule Barrow. I know this is all very confusing, but if you handle Section 1983 cases, I also know you are reading this very attentively.

What happened here is that Plaintiff Ceara was an inmate at Fishkill Correctional Facility. He claims a correction officer physically assaulted him for no good reason. As plaintiff as tumbling down the concrete staircase as a result of this assault, he did not have the wherewithal to look at the officer's name tag to determine who he would name in his Section 1983 lawsuit. So plaintiff named this defendant "John Doe," noting further in the caption that the bad-guy worked on a particular shift on the day of the assault and that the bad-guy's brother -- last name "Deagan" -- also worked at the prison. When plaintiff finally got the correct name, "Joseph Deacon," he identified him in the amended complaint, but only after the three-year statute of limitations expired. The district court said this was too late, that plaintiff was simply naming the John Doe defendant outside the three-year limitations period. But the Second Circuit (Parker, Cabranes and Matsumoto (D.J.)), disagrees and reinstates the case.

The Second Circuit holds this is not really a John Doe placeholder case but a mistake case, as plaintiff did provide some of the defendant's identifying characteristics in the caption and almost got the last name right, referring to John Deacon as "Deagan." Unlike the John Doe cases, no new party was added when plaintiff amended the complaint. This means the amended complaint relates back to the original complaint, and plaintiff has his lawsuit back.

Monday, February 25, 2019

Supreme Court expands scope of excessive fines clause

This may be the case of the year in the Supreme Court, barring some Mueller-related case involving Trump. The Supreme Court holds that the excessive fines clause of the Eighth Amendment applies to the states and not just the federal government.

The case is Timbs v. Indiana, issued on February 20. You probably didn't know the excessive fines clause did not apply to the states prior to this decision. You probably didn't even know we had an excessive fines clause to begin with. But we do, and it prohibits the government from really sticking it to criminal defendants, such as in this case, where Timbs pleaded guilty in state court to drug dealing and the government took his Land Rover SUV, which he purchased from a family inheritance but which the authorities said he used to distribute drugs. The SUV cost $42,000, more than four times the maximum fine.

When the Bill of Rights were originally drafted in 1791, they only applied to the federal government. The states were free to do what they wanted without any constraints under the Bill of Rights, which include the rights of free speech and religion, our beloved Second Amendment, and all the criminal procedure protections set forth in the Fourth through Eighth Amendments. After the Due Process Clause of the Fourteenth Amendment was ratified following the Civil War, the Supreme Court began to incorporate parts of the Bill of Rights into that amendment, holding that they regulate state behavior, which is why small towns cannot violate free speech even though the First Amendment explicitly regulates Congress. Incorporation has been a slow process, as the Court only recently held the Second Amendment regulates state and local governments. It now gets around to the excessive fines clause of the Eighth Amendment, and as Notorious RBG says, "for good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties," such as when excessive fines are used to retaliate against political enemies.

Justice Thomas concurs, stating that what really incorporates the excessive fines clause against the states is the Privileges and Immunities Clause of the Fourteenth Amendment, which states, "no state shall make or enforce any law which abridge the privileges or immunities of citizens of the United States." While in Thomas' view the Court has narrowed the scope of the P & I clause, litigants have had to enforce rights against the states by other means, including the Due Process Clause. The problem with that, Thomas says, is that the Due Process Clause only speaks to "process" and the Court has "struggled to define" what substantive rights it actually protects. What happens under this vague constitutional provision is the Court has little to work with in defining rights, creating some of the Court's most notoriously incorrect decisions," including Roe v. Wade and Dred Scott v. Sandford. Yes, Justice Thomas ranks Roe among the worst cases ever, along side Dred Scott, considered the most racist and worst Court ruling of all-time.

Sunday, February 24, 2019

Justice Thomas wants the Supreme Court to revisit cornerstone of free speech law

Justice Thomas wants the Supreme Court to reconsider its holding in New York Times v. Sullivan, the 1964 landmark ruling that says public officials cannot sue people for libel unless they can prove actual malice motivated the speaker to utter falsehoods about him. Since Sullivan makes it almost impossible for public officials to bring libel actions, and it is the bedrock of political criticism in this country, Thomas' proposal would represent a dramatic change in consititutional law.

Justice Thomas issued his decision in McKee v. Cosby on February 19, concurring in the Supreme Court's decision not to hear a libel case brought against one of Bill Cosby's rape accusers. While Thomas agrees the Court shouldn't take this particular case, he uses this opportunity to lay out a roadmap for overturning Sullivan, which would make it easier for public officials to sue their critics if they got the facts wrong. Thomas' musings on the correctness of the Supreme Court's public figure libel law is consistent with his view that many constitutional issues must be decided in accordance either with what the framers had in mind when they drafted the Constitution in the 18th Century or what the the state of the law was at the time.

Sullivan holds that, to win their libel suits, public officials must prove the speaker got his facts wrong because of actual malice, a notoriously high burden of proof. Actual malice means more than a simple mistake in getting your facts wrong; it means reckless disregard for the truth, or the speaker is just making it up to hurt someone else.

As Justice Thomas sees it, the framers of the First Amendment did not intend to graft an "actual malice" standard into libel cases, and libel cases were not even constitutionalized until 1964, when Justice Brennan famously said the new standard in Sullivan was necessary to ensure robust political debate in the United States. Yet, Thomas says, Sullivan "and the Court's decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own 'federal rules' by balancing the 'competing values at stake in defamation suits,'" an approach that does not comport with the original meaning of the First Amendment, ratified at a time when public figures did not have to satisfy any heightened liability standard in order to win their cases. Back then, all public officials had to do was to prove the offending statement was false and "subjected him to hatred, contempt, or ridicule." As legal thinkers saw it back then, Justice Thomas says, libels against public officials were considered even more serious than libels against the common man, "because the people may be deceived and reset the best citizens to their great injury, and it may be the loss of their liberties."

Thomas' historical research does say that political critics did have "a privilege to comment on public questions and matters of public interest," which extended "to the public conduct of a public man" and to the character of public officials "so far as it may respect his fitness and qualifications for the office." But this privilege would not let all critics off the hook; the public official could still win the case if the facts were false, "and the privilege did not afford the publisher an opportunity to defame the officer's private character."

No other Justice joins Thomas' opinion, making him a lone wolf on reconsidering Sullivan. He does quote from the late Justice White's prior criticisms of Sullivan, even though White had joined the Sullivan opinion. Justice White apparently reconsidered support for Sullivan in his later years. While Thomas' opinion is a far cry from an actual Supreme Court ruling that would over turn a 50+ year of robust political criticism in the United States, were the Court to adopt his views on this issue (and I doubt it ever will), it would change political dialogue in this country forever.

Thursday, February 21, 2019

Inmate lawsuit is good enough for Rule 8 pleading requirements

One of the conservative Supreme Court justices said years ago that the problem with pro se inmate lawsuits is that the inmates sometimes become litigation machines who file lawsuit after lawsuit because they have nothing better to do. That may be, but sometimes these cases have merit. At a minimum, sometimes these cases are sufficiently pled so the inmates can proceed with their cases. In this case, the Second Circuit says the inmate's complaint is good enough for discovery.

The case is Harnage v. Lightner, issued on February 15. Plaintiff is an inmate in state prison in Connecticut. He wants to sue over the deliberate indifference to his serious medical needs. The district court said the complaint was not sufficiently detailed and did not satisfy the rule that lawsuits must place the defendants on notice of the claims, but the Court of Appeals (Calabrese, Cabranes and Chin) says the plaintiff actually states a claim.

Under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain "a short and plain statement of the claim showing the pleader is entitled to relief." Under Second Circuit law, the plaintiff must at a minimum "disclose sufficient information to permit the defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery."

While the complaint in this case does not provide definite or specific dates on which plaintiff's requests for medical treatment were made, or any dates when anyone at the jail ignored his requests, the amended complaint "substantially complies" with Rule 8 because it "identifies discrete defendants and the actions taken by defendants that purportedly violated Harnage's Eighth Amendment rights." In particular, plaintiff alleges that he sought treatment from named staff members and that he did not receive effective treatment for his medical condition, i.e., providing the right prescriptions he had been promised. The failure to provide dates is not fatal under Rule 8 where, as here, the plaintiff does not have access to his medical records. So, while the complaint is not great, "it is not the incomprehensible 'labyrinthian prolixity of unrelated and vituperative charges' that Rule 8 was intended to curb."

Tuesday, February 19, 2019

2d Circuit grants habeas petition in murder case

Convicted felons are allowed to file habeas corpus petitions, which claim their state-court convictions were unconstitutional. But these petitions are hard to win, as the case has already been through the state court appellate process, and federal judges are required by law to give state court judges some leeway in interpreting the Constitution. So it's always news when the Second Circuit rules that a conviction was in fact unconstitutional, which is what happened here in this homicide case.

The case is Orlando v. Nassau County District Attorney's office, issued on February 11. The district court rejected the habeas petition, but the Court of Appeals holds that trial errors in state court denied Orlando's clearly-established constitutional right under the Sixth Amendment's confrontation clause.

The jury said Orlando was guilty over his role in the murder of a man, Calabrese, when Orlando and another witness Jeannot, went pay Orlando his huge gambling winnings. Jeannot told the police that Orlando had paid him to kill Calabrese. At Orlando's trial, the police testified that Jeannot himself was the killer, but that Orlando had paid him. Jeannot did not testify at the trial, however, so when the police testified about this "admission," the trial court gave the jury a limiting instruction, telling them that the testimony was only relevant in understanding why Orlando then gave a different account of what happened on the day of the murder.

The Second Circuit (Droney and Jacobs, with D.J. Shea in dissent) says the trial court clearly violated the confrontation clause and that the limiting instruction was not enough to ensure Orlando got a fair trial. After all, this hearsay account pinned the murder on Orlando. Hey, you can't throw a skunk in the jury box and ask the jury not to smell it. The Supreme Court has already stated that "when a non-testifying witness's confession 'expressly' implicates the defendant, 'the risk that the jury will not, or cannot, follow instructions to limit its consideration of the evidence for a proper purpose is so great, and the consequences of failure to vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.' When a jury hears such express incriminations, even if given a 'clear' limiting instruction, 'the effect is the same as if there had been no instruction at all.'"

Monday, February 18, 2019

Circuit declines en banc review in no-fly religion case

The Second Circuit almost never hears cases en banc, in which all the judges on the court and not just a three-judge panel convene to decide a case of exceptional importance. But when the court declines to hear a case en banc, the judges sometimes issue decisions of their own either defending the decision not to rehear the case or complaining that the initial three-judge ruling was wrong and the court must sit en banc to correct it. This time around, we have some en banc smackdowns on the issue of when you can sue the federal government over the religiously-motivated placement on the "no fly list"

The case is Tanvir v. Tanzin, issued on February 14. The initial panel said the plaintiffs could sue the government under the Religious Freedom Restoration Act (RFRA), which provides damages for government-sponsored religious discrimination. The court said the plaintiffs could sue the government which placed them on the no-fly list because they would not violate their Muslim principles in refusing to serve as FBI informants to spy on their fellow Muslims. This case has Supreme Court written all over it, as it challenges a federal program and the Court of Appeals weighed in on an issue involving national security and no-fly lists. These en banc opinions probably enhance the certiorari value.

The judges who did not want en banc review and defend the three-judge ruling (Pooler and Katzmann) write that the pro-en banc judges are wrongly characterizing the initial panel ruling as a Bivens case. Under the Bivens doctrine, you can sue the federal government for constitutional violations only in rare instances. But, these judges say, this is not a Bivens case. It's a RFRA case. And since RFRA contains an express right of action with an express provision for "appropriate relief," the initial three-judge panel faithfully applied that statute in holding the plaintiffs could sue the federal government for damages over the religiously-motivated no-fly determination.

Writing for the pro-en banc judges, Judge Jacobs (joined by Judges Cabranes and Sullivan) writes that a comparable religious discrimination statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies to the states, does not provide for a private right action against the government for money damages, as per Washington v. Gonyea, 731 F.3d 143 (2d Cir. 2013). The three-judge holding in Tanvir undermines the Washington holding, Judge Jacobs says, and the three-judge panel essentially created a new Bivens cause of action, which the Supreme Court has forbidden. The end result, Judge Jacobs says, is that government officials will be gun-shy in discharging their duties out of fear of litigation, and they cannot always rely on qualified immunity, such that "the safest course for a government employee in doubt would be to avoid doing one's job, which is not a choice in need of encouragement." Of course, that might be the case if the damages come out of the government employee's pocket, but the government usually pays out the damages award, or else -- let's face it -- no one would work for the government. Jacobs punctuates his opinion with a final slap: "the panel opinion is quite wrong and actually dangerous."

Friday, February 15, 2019

Redacted court ruling vacates guilty plea based on ineffective assistance of counsel

The Court of Appeals has ruled that a criminal defendant was denied the effective assistance of counsel who failed to tell him about the immigration consequences of his guilty plea. What makes the case interesting is that (1) portions of the case are redacted and (2) the federal government flip-flopped on whether to support the defendant's arguments or not.

The case is Doe v. United States, issued on February 14. The facts are not that unusual. Doe pleaded guilty to a crime but his lawyer, who was not well-versed in immigration law, did not tell him he faced mandatory deportation if he pleaded guilty. The case reaches the Second Circuit because the district court rejected the ineffective assistance argument. The government initially opposed Doe's application for coram nobis relief. Then it changed its mind and asked the district court to rule in Doe's favor. But then, on appeal, the government came out against Doe's position. This troubles the Court of Appeals (Katzmann, Kearse and Chin). The unspoken reality is this flip-flop was probably a Trump administration maneuver. But the Court of Appeals does quote from former Attorney General Robert Kennedy, who said the Justice Department is supposed to seek justice and not just convictions. In the end, based on how the Court views the record and Doe's desire to clear his name and fight the charges, had Doe known about the immigration consequences of his plea, he might not have taken the plea. 

Portions of the Second Circuit ruling are blacked out, so we don't know (1) the identity of lawyers representing Doe or even the federal government; (2) which district court this case originated in; (3) what crime Doe pleaded guilty to; (4) the dates certain things in the case happened

Thursday, February 14, 2019

No injunction for inmate who remains in administrative segregation

This is a tough case for the Second Circuit, asked to overrule prison officials who plan to keep an inmate confined in "administrative segregation" for the foreseeable future even though he has not committed a violent incident in jail in more than 20 years. The Court of Appeals rules against the inmate.

The case is H'Shaka v. O'Gorman, a summary order issued on February 13.While the plaintiff has not committed a violent infraction in prison in more than 20 years, he did kill someone for no apparent reason before he turned 18, he attacked a correction officer with a razor blade, severely slashing his face, and committed four other assaults between 1996 and 1999. He remains in administrative segregation under a regulation that permits that if officials think his "presence in general population would pose a threat to the safety and security of the facility." That means plaintiff is in his cell 23 hours a day without access to prison programs or worship, and his one-hour-a-day recreation is spent in a cage.

Plaintiff sought an injunction in the district court, claiming the continued confinement violates the Constitution. The district court denied the injunction and the Second Circuit (Katzmann, Hall and Lynch) says plaintiff cannot satisfy his heavy burden in showing the trial court clearly erred. The leading case in this area is Proctor v. LeClaire, 846 F.3d 597 (2d Cir. 2017), which requires prison officials to meaningful review his segregated status under the Due Process Clause. This involves a balancing test, with prison security on one side of the equation. The decisionmakers submitted declarations stating they are open to freeing up plaintiff inside the prison at some point in the future, but they were never cross-examined, "so we are in a poor position to judge their credibility at this stage, let alone to second-guess the district court's assessment," the court says. In any event, it does look like the jail considered plaintiff's recent behavior.

While the Second Circuit notes "the well-documented and devastating psychological and physical effects that prolonged isolation can have," the record does not speak to the specific harms that plaintiff will face if he remains in "ad seg," as they say in the prison world. Overall, maybe the record will shape up differently in discovery, the Court of Appeals says, but for now, plaintiff is not entitled to a preliminary injunction.

Thursday, February 7, 2019

Wrongful discharge to refusing to drive too-heavy truck on interstate highway

This case acquaints us with a wrongful discharge claim that most of us are not familiar with. Under the Surface Transportation Assistance Act, a trucking company cannot fire a truck driver for refusing to drive a truck on an interstate highway that exceeds the federal weight limit. That's what happened to the plaintiff in this case, and a jury in New Haven awarded him compensatory and punitive damages. That verdict is upheld on appeal.

The case is Kennedy v. Supreme Forest Products, a summary order issued on February 6. Plaintiff was directed to drive a truck that exceeded 80,000 pounds. The truck was carrying a load of mulch. This was in April 2014; springtime is a good time to deliver mulch. But this was too much mulch, so plaintiff objected, and was fired as a result. The jury awarded him nearly $12,000 in compensatory damages and $425,000 in punitive damages, which the trial court reduced to $250,000, the statutory cap. The company challenges liability and the size of the punitive damages award.

Management says the verdict was rooted in speculation because plaintiff never testified that he would have operated the truck on an interstate highway. But there was no speculation, the Court of Appeals (Cabranes, Calabresi and Wesley) says, because plaintiff testified that he understood the federal weight limitation applied only to the "federal highway system" and he did not want to break "the overweight law." Also, "common sense and geography" supports the verdict, says the Second Circuit. Two of the judges on the panel are from Connecticut, so this was the wrong panel to suggest the jury got it wrong on this issue. Testimony demonstrated the plaintiff refused to transport two loads, originating in Southington, Connecticut and destined for Bridgeport and Hartford. The most direct route for these trips involves the interstate highway system, and "a local jury (as this one was) would not even have needed a map" to know this. I guess if you live in the area, everyone knows this. As Judge Calabresi said at oral argument, "Connecticut only has so many highways" and it is unlikely plaintiff would have driven on "dirt roads."

What about the punitive damages? The $250,000 is the cap under federal law for these claims, and the jury was able to find that defendant was motivated by greed and repeat offenses. As for liability for punitive damages, the evidence shows defendant tried to cover up what happened, telling HR that plaintiff had quit his job (and was not fired). And, the employee handbook discusses the applicable regulations, demonstrating that it knew the law, such that it "discriminated in the face of a perceived risk."

What this case tells us is that it is quite difficult to challenge a jury verdict on appeal, and that arguments that the verdict was rooted in speculation are equally difficult. Here, we inferred that defendant wanted plaintiff to drive his truck on the interstate highway, even though, I guess, no one directly testified to that fact. But we can draw inferences so long as they are not unreasonable.

Wednesday, February 6, 2019

Intern at cosmetology school not entitled to salary under the FLSA

From time to time, the Second Circuit puts further gloss on the legal doctrine that says some entities do not have to pay their interns any salary. This case falls under that category. The Second Circuit says a student at a for-profit cosmetology school who had to perform barbering and other cosmetology services to the public at discounted prices.

The case is Velarde v. GW GJ, Inc., decided on February 5. The seminal case in this area is Glatt v. Searchlight Pictures, 811 F.3d 528 (2d Cir. 2015), which says the intern is not entitled to any compensation under the Fair Labor Standards Act if the intern is the "primary beneficiary" of the relationship. If the intern's employer is the "primary beneficiary" of the relationship, then the entity is an employer under the FLSA and the intern has to receive compensation.

Velarde is the lead plaintiff in a potential class action. After finishing eight weeks in the classroom, plaintiff worked at the salon run by the school, performing cosmetology services for the public. He also had to perform janitorial and clerical work. Under state law, to offer cosmetology services in New York, you have to complete 1,000 hours of coursework in various subject areas, like hair styling and presumably shampoo, like the beauty school dropout in Grease.

Plaintiff said the beauty school was the primary beneficiary of the relationship because it derived revenue from the work he performed for paying customers. He says that any training and skills he received from providing those services are "besides the point." The Second Circuit (Cabranes, Carney and Caproni [D.J.]) disagrees. The Court first holds that the "primary beneficiary" test applies in cases involving vocational schools or vocation-related programs. It then holds that plaintiff was the primary beneficiary of this relationship because he received significant benefits from his work at the Salon, as he was required to complete 1,000 hours of coursework, and he did so under the supervision of the school's instructors. And the school actually had plaintiff work exactly 1,000 hours, consistent with state licensing requirements. While plaintiff says he also performed clerical and janitorial duties, the Second Circuit has already held that relatively menial or repetitive tasks may legitimately comprise part of the intern relationship for which the intern receives no pay. And, while plaintiff points out the Salon earned money from his cosmetology work, "the Academy has no obligation not to turn a reasonable profit on its operations" and "this is not a case in which a business uses the facade of a vocational school to deceive students into working unexpectedly long hours without compensation, replacing the labor of its paid employees, or working hours well beyond long-standing state requirements."

Tuesday, February 5, 2019

No fourth amendment liability in gun-seizure case

This search and seizure case involves assault weapons in Connecticut. The police entered this guy's home to retrieve weapons that plaintiff was not supposed to have because they mistakenly thought he had a felony conviction. He sues the officers for entering his home without a warrant. Plaintiff loses the case.

The case is Kaminsky v. Schirio, a summary order issued on January 24. The FBI told local police that plaintiff had a felony conviction and therefore was not allowed to possess any firearms. The police showed up at plaintiff's house, and plaintiff recognized one of them, so he said, "What's up Walt?" Plaintiff then waved the police into his house. Big mistake. When the police entered the house, plaintiff voluntarily surrendered his guns. The other cops waited outside and minded their own bees-wax, declining to search the property. A few days later, the police returned to plaintiff's home, and he turned over more guns. In all, plaintiff had 59 firearms in his house, there of which were illegal assault weapons.

In this fourth amendment case, plaintiff says the police had no right to be in his house. The Court (Katzmann, Hall and Lynch) disagrees. Kaminsky consented to their entry after they said, "can we come in?" Emphasis in "we," which means more than one. The officers who entered the house did so at plaintiff's invitation. Now, as it happens, plaintiff was not actually a convicted felon. His conviction from 1964 was not a felony at the time. But, the Court says, that is no reason to find the police violated the Fourth Amendment in entering the house, as it provides no basis to believe that plaintiff's consent for the police to enter was coerced.

So what about the officers who did not enter the house? Plaintiff sues them as well, claiming they were present on the curtilage and their mere presence violated the Constitution. This claim also fails under qualified immunity. Even if the area was curtilage, the officers reasonably believed the area in which they waited was not curtilage. The opinion is not clear as to why this is so, but in the statement of fact, the court notes the officers were standing near a public lake. While more recent Supreme Court cases may call the district court's analysis on the curtilage issue into question, under qualified immunity principles, we look at the law as it existed at the time of the alleged constitutional violation.  As the officers are not expected to anticipate those developments, they did not knowingly violate clearly-established law. The case is dismissed.

Monday, February 4, 2019

Court of Appeals reinstates claim that detectives falsified evidence in homicide case

This complicated Section 1983 case alleges that New York City detectives fabricated evidence that resulted in a murder conviction (for which the defendant was eventually exonerated halfway through his sentence when the police determined that someone else committed the homicide). The Court of Appeals reinstates the lawsuit, finding a jury may conclude the detectives did in fact falsify evidence, and that other prosecutorial misconduct denied the plaintiff a fair trial.

The case is Bellamy v. City of New York, issued on January 29. The victim was stabbed outside a grocery store in Queens. Bellamy was picked up for the killing, and the detectives produced two pieces of evidence at the criminal trial that implicated Bellamy: (1) an admission from Bellamy that this was a case of mistaken identity and that someone must have falsely accused him of murder and (2) an eye-witness statement that says Bellamy got into a fight with the victim on the day of the murder. The first evidentiary submission was significant because no one said anything to Bellamy about a murder when he allegedly blurted out that he did not kill anyone. The second evidentiary submission is significant because eyewitness statements like this are always useful for the prosecution.

We have an issue of fact for the jury in Bellamy's civil rights case on these alleged evidentiary fabrications. Bellamy swears he never made that admission, and the woman who purportedly made that eyewitness statement swears she never said it, either. This kind of he-said she-said factual dispute will get you a trial in the typical Section 1983 case, and it gets Bellamy a trial in this case, even though it involves a homicide. While the district court said Bellamy's denial was self-serving and not substantiated by any direct evidence, the law is that "self-serving" but sworn testimony is enough to create a factual dispute so long as the testimony is not contradictory and incomplete. The case for that proposition is Rentas v. Ruffin, 816 F.3d 214 (2d Cir. 2016).

The Court (Walker and Shea [D.J.], over Judge Jacobs' dissent) also reinstates Bellamy's civil case against the detectives because he adequately alleges the police withheld evidence that would have helped Bellamy's criminal defense. While the victim was killed on a Saturday, one eyewitness told the detectives that she saw Bellamy on a Sunday, when he was trying to buy beer before noon (you could not buy beer on Sunday mornings). The detectives did not turn over this statement to the prosecution. While the detectives claim this witness said no such thing, the witness herself said that she did. As Bellamy's guilt was a close call, this factual dispute could have a made a difference at the criminal trial. The jury in Bellamy's Section 1983 case must determine if the detectives failed to turn over this exculpatory evidence.

We have other allegations that a jury must also consider in determining if the detectives failed to turn over relevant evidence. Bellamy has evidence that one eyewitness said Bellamy was with someone else, Lee, on the day of the killing. That witness denies making that statement. This is relevant because there was no suspicion that Lee had anything to do with the murder. This is a close question, but it goes to the jury.

Finally, Bellamy has a Monell claim against the City, claiming municipal liability over its policy of failing to disclose the relocation benefits that one eyewitness would receive if he testified at the criminal trial. A Monell claim also arises from the prosecutor's improper summation. The Court holds that the actions of county prosecutors in New York  are generally controlled by municipal policymakers for purposes of Monell, which says you cannot sue sue a municipality unless a municipal policy led to the violation of your constitutional rights. So what happened here was the result of municipal and not state policy, even though the DA's office says that alleged DA "misconduct" is a state function. As for non disclosing the relocation benefits, the jury could find the eyewitness was promised relocation and related benefits in return for testifying. These benefits were sufficiently lucrative for the witness that the jury could have taken them into account in assessing the witness's credibility. As for the ADA's summation, Monell liability may attach because the ADA was not disciplined by his superiors for telling the jury that he personally knew who committed the murder. The ADA also said that Bellamy was not going to get away with the murder, "not this time." This suggests Bellamy has killed others and gotten away with it. This and other problems with the summation fuel Bellamy's Monell claim, particularly since the trial evidence did not exactly point to Bellamy's guilt, and the DA's office had major misgivings about the quality of its case in any event.

Thursday, January 31, 2019

The conservative Justices want to take up a teacher/coach speech issue

Some Justices on the Supreme Court periodically signal to the legal community what legal issues they want to take up. They sometimes do this by issuing a brief ruling in connection with the denial of certiorari, announcing that while the Court is not taking this particular case, it remains open to hearing that issue in another case that would present a more appropriate vehicle for that issue. This time, the issue involves the speech rights of public employees.

The case is Kennedy v. Bremerton School District, issued on January 22. The Court as a whole decided not to hear the case. But Justices Alito, Thomas, Gorsuch and Kavanagh issued a statement in connection with the denial of certiorari. These Justices want to hear this issue. The plaintiff says he lost his job as a football coach at a public high school because he prayed on the field following a football game in front of the audience. The superintendent of schools said the public prayer ritual would lead a reasonable observer to think the district was endorsing religion, which would violate the Establishment Clause of the First Amendment, which requires the separation of church and state. Kennedy argued the termination of his employment actually violated the free speech clause of the First Amendment.

So we have competing clauses in the First Amendment at stake here. The Court did not take on this case, Alito says, because the issues are too fact-specific, and the lower courts can resolve those issues before the Supreme Court takes on the case.

Alito says this case raises an important issue because it implicates the Court's decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds a public employee does not have speech rights if his speech was uttered pursuant to his official job duties. "According to the Ninth Circuit, public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report to work to the moment they depart, provided they are within the eyesight of students." Under this interpretation, teachers cannot even bow in prayer during a lunch break if students can see them. Alito is also concerned that the Ninth Circuit's ruling can be understood to mean that "a coach's duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith -- even when the coach is plainly not on duty." He adds, "The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable."

Wednesday, January 30, 2019

The agony of defeat (or, use a cell phone to take incriminating pictures)

The first day of trial and the last day of trial are two different events. On day one, possibilities abound. We might win the case. On the last day, especially when the jury is deliberating, our anxieties get the best of us, and when the deputy clerks knocks on the door to advise the jury had reached a verdict, your heart beats through your chest. The day of reckoning has arrived. And there is nothing worse than losing.

The case is Hollins v. City of New York, a summary order issued on January 25. Plaintiff alleges that city police officers subjected her to excessive force. It all started when plaintiff's family began arguing and someone called the police. The parties had conflicting accounts. The police say plaintiff shouted profanities at the officers and lunged at her brother before she ran down the street and punched an officer in the face when they caught up with her. Plaintiff, on the other hand, says she tried to cooperate with the police from the outset, never lunged at anyone and that when she ran away, the police beat the hell out of her when they caught up with her, sending her to the hospital.

The jury ruled for the officers, determining plaintiff did not prove her case by a preponderance of the evidence. Like I said, this is devastating for the plaintiff. On appeal, plaintiff argues the jury should have credited her story and found she was falsely arrested for disorderly conduct and excessive force. But these issues are truly for the jury. The Court of Appeals will not second-guess the jury's findings, except in rare circumstances. On the false arrest claim, the Court (Katzmann, Hall and Lynch) says:

According to the defendants’ testimony at trial, Hollins was loudly screaming profanities for several minutes around 10:00 p.m. on the street of a residential neighborhood. Neighbors were watching the scene unfold. And Hollins’s anger was originally directed at her brother, whom she tried to attack, “supporting the inference that the disruptive behavior would continue and perhaps escalate absent interruption by the police.” A reasonable jury could therefore find that the police had probable cause. The district court therefore did not abuse its discretion by denying the motion for a new trial on Hollins’s false arrest claim.

What about the excessive force claim? Same analysis. "There is no dispute that the defendants used excessive force in Hollins’s version of the arrest but did not in the officers’ version. Hollins first argues that she was credible and the officers were not. But we may not weigh the credibility of witnesses in reviewing a district court’s denial of a new trial under Rule 59." Now, plaintiff points to photographs her boyfriend took of her injuries. That can be good evidence, if they are taken right away. But these pictures were not developed until June 18, 2013, more than a month after the arrest. "As defendants argued in closing, it was possible that the pictures were taken later, and the injuries were a result of some other argument. Given this conflicting evidence, we cannot say that the district court abused its discretion in denying Hollins a new trial." This begs the question. Didn't the boyfriend have a cell phone (which would show the pictures were taken right away)? Why were the pictures developed more than a month after the incident? Who develops film anymore?

Tuesday, January 29, 2019

Good faith exception under Fourth Amendment upholds child pornography conviction

I know that judges on the Court of Appeals try to decide cases without sympathy or hatred for the litigants, but it cannot be denied that the judges in resolving sex offender cases know they are sitting in judgment of someone with a record of accessing child pornography. In this case, the Court upholds the search of a man who was arrested for possessing child pornography, involving the "good faith" exception under the Fourth Amendment.

The case is United States v. Boles, decided on January 25. The FBI learned about a website that featured child pornography. The FBI operated an undercover operation to snare people who accessed the website. The FBI saw that defendant accessed the website in September 2010, but nearly a year later the FBI applied for a search warrant even though they worried the application might be stale, "but it's worth seeing if the AUSA will go for it." The judge signed the warrant, the FBI found child pornography on the defendant's computers, he was found guilty, and now he claims the warrant violated the Fourth Amendment.

Even child pornography defendants have rights. The Court of Appeals (Chin, Wesley and Carney) notes the probable cause issue is a close one, but the Court does not resolve that question because it can uphold the conviction under the good-faith exception to the Fourth Amendment, an exception to the requirement that the police have a valid warrant to conduct a search. The Court says the officers were able to execute the warrant because a federal judge signed off on it.

the district court made an independent determination that the warrant was supported by probable cause, which it based primarily on: (1) Bolesʹs membership in and his postings of child erotica; (2) Bolesʹs visit to the FBI Undercover website using the unique code that was emailed to him; and (3) Bolesʹs prior conviction for possession of child pornography. Even assuming that these facts did not add up to probable cause, the existence of probable cause in this case is an exceedingly close question. Accordingly, the courtʹs finding of probable cause was not facially insufficient such that any reliance upon the warrant would be unreasonable.

Defendant also loses the appeal because "the representations in the affidavit here were not intentionally false, reckless, or grossly negligent such as to otherwise preclude the good faith exception." While the officers did wonder if the search warrant application might be stale because of the passage of time, "there was nothing inappropriate in their leaving the issue to the prosecutor and court to resolve. As this Court has repeatedly recognized, there is 'no bright‐line rule for staleness,' which depends 'on the basis of the facts of each case.'" "Even assuming the information was stale, the agents disclosed the information to a neutral and detached judge, who was made aware of the 'staleness issue' and the relevant facts and circumstances, but nevertheless issued the warrant. The agents cannot be said to have acted in bad faith by asking a judge to decide the question of staleness."

Wednesday, January 23, 2019

Ailments were not serious enough for ADA claim

When is a disability not a disability under the Americans with Disabilities Act? One way that an ailment is not a "disability" is when the ailment is a temporary one.

The case is Francis v. Hartford Board of Education, a summary order issued in January 16. Under federal antidiscrimination law, you cannot suffer discrimination because of a disability, which means it cannot be the reason for your termination, and, if necessary, management has to reasonably accommodate your disability so long as the accommodation does not remove an essential job duty and it does not present an undue burden for the employer.  Under the law, a disability is an ailment that creates a substantial limitation on a major life activity, such as eating, seeing, mobility, etc. While the ailment does not have to prevent or significantly or severely restrict daily activities, not every impairment is a disability

Here, plaintiff says she was discriminated against because of her disability, but the Court of Appeals (Jacobs, Calabresi and Rake-off [D.J.]) says she is not disabled under the law. Plaintiff had injuries to her shoulder and knee. She hurt the shoulder in September 2012 and was released from any physical restrictions in November 2012. As for the knee, plaintiff hurt it in December 2012 and was released from any restrictions in May 2013. As the Court says, "these injuries were too brief and too minor to qualify as disabilities under the ADA." The shoulder injury restricted her for two months, the knee injury, five months. And the limitations were relatively minor, lifting with her right arm and climbing stairs.

There are few Second Circuit cases dealing precisely with these issues, as demonstrated by the cites in this opinion, including Adams v. Citizens Advice Bureau, 187 F.3d 315, 316-17 (2d Cir. 1999), a 20-year-old case. Add this case to the list.

Tuesday, January 22, 2019

Campus sexual misconduct hearings did not violate Title IX

The Second Circuit does not issue too many decisions on the grievance process at private colleges in sexual assault cases. This case sets forth the standards, but as a summary order, it lacks full precedential value. Still, the decision provides a glimpse into how these cases work.

The case is Doe v. Colgate University, issued on January 15. Three women accused Doe of sexual assault on campus. A hearing panel set up by the university sustained the charges, and Doe was expelled. Doe sues the school under Title IX, which prohibits gender discrimination in private schools. He raises a series of arguments, all of them rejected by the Second Circuit (Walker, Leval and Droney).

Title IX claims concerning disciplinary proceeding follow either the "erroneous outcome" theory or the "selective enforcement" theory. Doe goes with the erroneous outcome theory, claiming the outcome was motivated by gender bias. He claims that Colgate was under pressure to punish men because the college had a Sexual Climate Forum shortly before the women accused Doe of sexual misconduct. But that argument goes nowhere, as the college president told everyone that men and women can both be victims of sexual assault. Doe further claims the training for sexual misconduct hearing officers was biased against men because participants are told that investigators should refer to "complainants" when talking to the accused, but they should refer to "victims" or "survivors" when talking to the complainant. The Title IX coordinator also refers to complainants using female pronouns. But that evidence does not prove gender bias; it only reflects the statistical reality that most sexual assault victims are women. There is also no evidence that investigators are trained to be biased against men, as some men during these proceedings have been found to be innocent.

Doe's other objections to Colgate's process claim that the Campus Safety Investigator is a former female police detective who investigated sex offenses, which predisposes her to view men as perpetrators. For this proposition, Doe cites the investigator's testimony that in her experience, most victims tell the truth, and that when a period of time passes following an incident, the victim will forget specific details but not whether the incident actually happened. Doe also says the investigator asks women at these hearings, "can you think of any reason why these women would say this happened if it didn't." This evidence does not prove gender bias, the Court of Appeals says, as the memory theories do not show bias and the "any reason" question gives the accused a chance to explain why the charges are false, i.e., such as animosity toward the accused. Another argument claims Colgate practices gender bias because the female complainants were given their own waiting room with their friends, a benefit denied to Doe. That's not bias, either, the Court says, as Doe did not request his own waiting room.

Wednesday, January 16, 2019

A good primer on prosecutorial immunity

As every plaintiff-side civil rights lawyer has advised his clients from time-to-time, you cannot sue the prosecutor. On rare occasions you can, but prosecutors have immunity from suit, for the same reason judges are immune from suit: every unhappy criminal defendant would otherwise sue the prosecutor. This judge-made rule ensures the courthouse will not be as tall as the Empire State Building.

The case is Ogunkoya v. Monaghan, issued on January 9. The facts are unusual. Plaintiff lives in Brooklyn. He was charged with fraudulent Home Depot gift card activity in Monroe County, which is   three or four hours away from New York City. While all this was going down, he was planning to take the New York bar examination. He was going to be arraigned in town court in Monroe County, but the town judge objected because the offenses allegedly took place in a different town. Rather than have plaintiff arraigned in the right town, the prosecutors delayed that arraignment and sought a bail hearing, claiming he was a flight risk. This led the local judge to impose a a $100k cash/$300k bond bail. A jury acquitted him of all charges, prompting plaintiff to sue the prosecutors. The district court said plaintiff could proceed with that portion of the case, but the Court of Appeals reverses.

Prosecutors cannot be sued for initiating a prosecuting and presenting the state's case. More broadly, the DA cannot be sued for acts that are taken in his capacity as an advocate. The Court of Appeals says the prosecutor's decision to prosecute plaintiff and proceed by grand jury indictment was a prosecutorial exercise of discretion entitled to absolute immunity. While the trial court said the local arraignments were a police and not a prosecutorial responsibility, the Second Circuit sees it differently. While it is generally a police responsibility to present a detailed person before a court for evaluation of the legality of her detention, a legal principle that might support plaintiff's case against the ADA on the ground that the ADA unreasonably delayed his prosecution, in this case, the ADA's function in controlling plaintiff's arraignments on multiple and different charges that would later be subsumed in a single charging document was part of the prosecutor's role as the gatekeeper of "whether an when the prosecute," the latter quotation arising from the seminal prosecutorial immunity case, Imbler, a Supreme Court case from 1976.

The decision to initiate prosecution, what charges to bring and how to perfect and consolidate those charges "is a quintessential prosecutorial function," the Circuit Court says. Not only were the prosecutors participating in plaintiff's arraignment, but they were also preparing to prosecute him on multiple charges in two other towns. Pursuing all the charges in a single indictment rather than pursue three separate criminal actions under the six felony complaints was ultimately a prosecutorial function. That plaintiff's prosecution was delayed in this regard does not give him a Section 1983 lawsuit against the prosecutors.