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."

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?

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 Girls.Forumcircle.com 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."

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.

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.

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.

Internet and adult-pornography bans violate the First Amendment in child sex-offender case

District courts have broad discretion to sentence offenders, including sex offenders. But there are limits. In this case, the Second Circuit holds that a trial judge in Albany went too far in prohibiting a sex offender (involving two 13-year-old girls) from accessing the Internet for the next 11 years. The Court also says the trial judge exceeded her authority in prohibiting the defendant from accessing adult pornography.

The case is United States v. Eaglin, issued on January 11. Writing for the Court, Judge Carney says the trial court's restrictions "are such unusual and severe conditions" that "merit our close examination" despite deference to the district court's conditions of supervised release.

This is ultimately a free speech case. Like it or not, even sex offenders have constitutional rights. This case could not have been decided 25 years ago, pre-Internet. But with a ubiquitous Internet, judges have to determine how Internet usage -- or Internet bans -- impact the First Amendment. Even unsympathetic parties can win cases under the First Amendment, as demonstrated by this case.

On the Internet ban, the Court says that "in a modern society," Eaglin has a constitutional right to access the Internet, as per a Supreme Court ruling from 2017, Packingham v. North Carolina. The ban imposed here is pretty broad, as "Eaglin has a First Amendment right to be able to email, blog, and discuss the issues of the day on the Internet while he is on supervised release." Not being able to go online means Eaglin won't be able to look for work, even though being employed is one of the conditions of his supervised release. Eaglin's offenses did not even involve the Internet. In short, absolute Internet bans violate the Constitution, no matter who the criminal defendant is or what he has done.

What about the legal adult pornography ban? At first glance, they may seem reasonable, as defendant is a sex-offender. The problem with this condition is that it bears no relationship to Eaglin's offenses (involving minors), and there is no showing that accessing legal adult pornography will have any recidivist consequences.  All the trial court said on this point was that "when you view pornography, I happen to believe that the community is at risk from you." This general statement is not enough for an across-the-board ban like this, the Court of Appeals says, as the judge did not say why viewing adult pornography would present such a risk. There is no evidence that defendant has a history of viewing child pornography.

Yes, there can be excessive force without any actual damages

Sometimes, you lose even when you win. In this police misconduct case, the plaintiff won his jury trial. The jury said the jury used excessive force against him. But the jury only awarded him a dollar in damages. As for the other plaintiff, her case did not even reach the jury, as the trial judge dismissed her claims mid-trial. They both appeal, and they both lose the appeals.

The case is Feliciano v. Thomann, a summary order issued on January 11. Let's start with Hector Feliciano's case. The jury said Hector suffered excessive force. But it was all worth only a dollar. Juries can do that; they are not required to award damages when your civil rights are violated. To win a damages award, you have to prove them. Now, if the plaintiff puts on compelling (and largely undisputed) evidence of damages and the jury still gives you nothing, the court can award you a new trial on damages. But if there is no proof of actual injury, then a dollar may be all you get. Hector asks the Court of Appeals (Cabranes, Pooler and Droney) to award him a new trial, but the Court notes that Hector said at trial that the excessive force did not cause any long-lasting injuries. This means the one-dollar award is not a miscarriage of justice or seriously erroneous. No new trial for Hector on damages.

At least Hector got the satisfaction of a verdict in his favor. Elisa Felicano's case did not even reach the jury. The trial judge said that Elisa did not prove that she suffered anything beyond the minimal use of force. Under the case law, even a legitimate arrest can involve too much force. Although the Second Circuit's ruling does not tell us what happened, or even how a husband-wife plaintiff team would have occasion to sue the police for excessive force in the first place, the Court says Elisa did not put on enough evidence to take her case to a jury.

One final slap in the face, at least for Hector's lawyers. As every civil rights lawyer knows, the prevailing party in a Section 1983 civil rights case can recover her attorneys' fees from the losing party. But a key exception to that rule is that a one-dollar jury award normally entitles you to no attorneys' fees at all. This stems from Farrar v. Hobby, a Supreme Court ruling from 1992. This outcome may puzzle the non-lawyer. If the plaintiff proves her rights were violated, then the case was worth bringing, right? The Supreme Court did not see it that way. No attorneys' fees means the plaintiff had minimal success. Farrar represents one of those loopholes in civil rights law that will probably never be remedied.

Cases like this are the reason judges drink

Many cases settle with assistance from the Magistrate Judge who will talk with the parties and their attorney to find a way to resolve the case without the burdens of additional discovery and risk of trial. If the magistrate can broker a deal, the judge usually brings everyone back into the courtroom to put the deal on the record. There are reasons why judges do this.

The case is Doe v. Kogut, a summary order issued on January 9. This is a domestic violence tort claim that the plaintiff filed in federal court, probably because the parties lived in different states, providing the federal court with "diversity jurisdiction." After the parties agreed on the terms of settlement, the judge immediately put it on the record. Now, a judge could ask the parties to place the deal in writing after they get back to their offices and then have the parties sign it. But judges know better. They know that parties can be mercurial and try to walk away from the deal, as lawsuits can be emotional and difficult, and many clients have buyer's remorse after agreeing to settle. The court system deals with this by having the parties stand before the judge and place the deal on the record in open court right after they achieve the handshake agreement in the judge's chambers. Only then can the lawyers return to their offices to draft a formal agreement. But usually, the open-court agreement on the record is enough to officially settle the case.

The judge in this case put the deal on the record in open court. The plaintiff then tried to challenge the deal, claiming there were never a written deal. But at the settlement conference, the magistrate judge said the parties would agree to the verbal settlement on the record, and no one objected to that. Second Circuit law holds that an "agreement need not be reduced to writing if it entered into voluntarily on the record in open court." That case is Powell v. Omnicom, 497 F.3d 124 (2d Cir. 2007).

The plaintiff also objects to the in-court settlement because she entered into it under duress. The Magistrate Judge rejected this argument, and the Court of Appeals (Jacobs, Sullivan and Korman [D.J.] affirms. Plaintiff says the judge told her that defendant threatened to report her to the IRS if she did not settle. But the Magistrate Judge did not recall saying that. Plaintiff's lawyer is also not backing her up on this allegation. The Court of Appeals credits the magistrate judge's view that there was no such threat during settlement discussions. While plaintiff further says she was in bad psychological shape during the settlement conference because her psychiatrist had physically assaulted her only one day earlier, the Court of Appeals notes that "mental fragility is insufficient to show duress." For that proposition, the Court cites Blatt v. Manhattan Med. Grp., P.C., 131 A.D. 48 (1st Dept. 1987). I guess there is no federal case standing for that proposition. We have one now.   

Supreme Court summarily rejects Ninth Circuit's qualified immunity analysis in police misconduct case

Over the last few years, the Supreme Court has been taking up Section 1983 cases in order to remind the lower courts that police misconduct lawsuits cannot proceed unless the officers have violated clearly-established law. Usually, this exercise results in the Supreme Court either dismissing the case or directing the lower court to review the case once again to ensure the Court's directives are being followed.

The case is City of Escondido v. Emmons, issued on January 7. This case was not argued before the Court. Instead, after Emmons filed a certiorari petition, the Court resolved the issue on the papers, a common practice these days in qualified immunity cases involving the police.

Qualified immunity is a legal doctrine that says the police (and other public officials) cannot be sued for damages in civil rights cases unless they violated clearly-established case law that put the defendants on notice that they were violating the law. Not all legal issues are clearly-established, primarily because the universe of factual situations have not yet been decided by the federal courts, and it is not enough to say the law is clearly-established simply because the law prohibits the excessive use of force by a police officer. In determining whether the law is clearly-established, the courts ask whether, given the facts of any given case, was the officer on notice that excessive force was illegal.

In this case, the police showed up to a woman's apartment in a domestic incident after someone called the police. Here are the facts:

The officers knocked on the door of the apartment. No one answered. But a side window was open, and the officers spoke with Emmons through that window, attempting to convince her to open the door to the apartment so that they could conduct a welfare check. A man in the apartment also told Emmons to back away from the window, but the officers said they could not identify the man. . . .

A few minutes later, a man opened the apartment door and came outside. At that point, Officer Craig was standing alone just outside the door. Officer Craig told the man not to close the door, but the man closed the door and tried to brush past Officer Craig. Officer Craig stopped the man, took him quickly to the ground, and handcuffed him.Officer Craig did not hit the man or display any weapon. The video shows that the man was not in any visible or audible pain as a result of the takedown or while on the ground. Within a few minutes, officers helped the man up and arrested him for a misdemeanor offense of resisting and delaying a police officer.

The Ninth Circuit said the officer who took down Emmons did not have qualified immunity because the law is clearly-established that excessive force is prohibited under the Constitution. In resolving this issue against the police officer, the Ninth Circuit cited a case from that Circuit stating an officer cannot use excessive force when the other guy is engaging in mere passive resistance. But that other case is not this case, the Supreme Court says, reasoning, "The Court of Appeals made no effort to explain how that case law prohibits Officer Craig's actions in this case." What the Supreme Court is saying is that the passive resistance case is not close enough to this case. The Ninth Circuit will have to take up this issue again and scour its own precedents to see if any case comes closer to this one. If there is no such case, then the officer will prevail without trial.