First Department narrows who may be personally sued under the NYC Human Rights Law

If you handle discrimination cases in New York City, you know the New York City Human Rights Law provides for greater protections than the federal civil rights laws, including Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. The state courts periodically issue rulings that adhere to that statutory interpretation. This case is not one of them.

The case is Doe v. Bloomberg, L.P., issued by the First Department on September 24. The plaintiff claims she was sexually harassed by Nicholas Ferris while employed by the company formed by former NYC Mayor Michael Bloomberg. She is suing him personally, in part, on the basis that Bloomberg created a culture of sexual harassment at his company. The First Department notes that, while the statute imposes strict liability on "employers," the law "does not provide a definition of 'employer' and the legislature has not provided guidance as to how 'employer' should be defined under the statute." Here are the basis rules governing employer defendants:

The Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors.  Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. 

Looking at this issue anew, the First Department holds in a 3-2 vote that "in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim." In other words, the corporate officer must have some personal involvement in the discriminatory violation. It is not enough that he is a corporate officer.

The First Department provides this explanation:

holding an individual owner or officer of a corporate employer liable under the City HRL as an employer, without even an allegation that the individual participated, in some way, in the specific conduct that gave rise to the claim, would have the effect of imposing strict liability on every individual owner or high-ranking executive of any business in New York City. The City HRL is not so broad that it imposes strict liability on an individual for simply holding an ownership stake or a leadership position in a liable corporate employer.

Michael Bloomberg cannot be sued in this case under this new interpretation. The First Department says the complaint "fails to allege any facts from which it can be inferred that Mr. Bloomberg was aware or should have been aware of the discriminatory conduct committed by Mr. Ferris. Plaintiff never complained to Bloomberg L.P.'s HR Department about Mr. Ferris's conduct and there are no allegations in the complaint that Mr. Bloomberg knew or should have known about Mr. Ferris's conduct toward plaintiff, that Mr. Bloomberg knew or should have known that Mr. Ferris behaved in a discriminatory manner toward women other than the plaintiff or that Mr. Bloomberg had any involvement or interactions with Mr. Ferris at any point."

Since this case was decided 3-2, it looks like this dispute will reach the New York Court of Appeals, which has authority to hear divided cases like this. 

The Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim.

Doe v. Bloomberg, L.P., No. 28254/16E, 2019 WL 4605568 (N.Y. App. Div. Sept. 24, 2019)

The Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim.

Doe v. Bloomberg, L.P., No. 28254/16E, 2019 WL 4605568 (N.Y. App. Div. Sept. 24, 2019)

he Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim

Doe v. Bloomberg, L.P., No. 28254/16E, 2019 WL 4605568 (N.Y. App. Div. Sept. 24, 2019)

he Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim

Doe v. Bloomberg, L.P., No. 28254/16E, 2019 WL 4605568 (N.Y. App. Div. Sept. 24, 2019)

Case implicating one-person-one-vote in prison context survives appellate review

The Court of Appeals has ruled that the NAACP may proceed with a lawsuit against the State of Connecticut in claiming that the state violates the one-man-one-vote principle in counting incarcerated individuals as residing in the district where their prison is located rather than the district on which they presently reside.

The case is NAACP v. Merrill, issued on September 24. While most incarcerated prisoners cannot vote, their are still included in population counts. I mean, they still exist as human beings. The question is what legislative district do they belong to when they are in jail, often situated away from their home counties. What it all means, according to plaintiffs, is that counting the inmates as residents of their prison counties "artificially inflates the representation of some parts of the state at the expense of others: the representational power of the predominantly White residents living in the prisonersʹ mostly rural prison districts is artificially inflated, while the representational power of the predominantly Black and Latino residents living in prisonersʹ more urban home districts is artificially deflated."

The state argues there is no case under the Eleventh Amendment's general prohibition against suing the state in federal court. (As an aside, the Eleventh Amendment is really something that needs to be reexamined, as I don't know what purpose it serves to prevent people from suing the state in federal court, and whatever reasons may have existed for that policy back in 1787 probably don't apply in the modern age.) There are exceptions to the Eleventh Amendment, including the principle that you can challenge in federal court the state's ongoing violation of federal law and seek prospective, or injunctive, relief, and not money damages. That's the case here, as plaintiffs want a declaratory judgment and an injunction requiring the state to adopt a new districting plan for elections.

If you are a one-person-one-vote junkie, then this case is for you. The Court of Appeals (Wesley, Chin and Bianco) deals with the state's various defenses to this case, requiring the judges to explore f this constitutional principle. One issue involves what constitutes "one-person-one-vote." The Supreme Court has said states may deviate from that principle in pursuit of other legitimate objectives, and that "minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment." The general rule is that "a maximum population deviation under 10 percent falls within this category of minor deviations." The state argues that plaintiff has no case because the deviation falls within the 10 percent margin, but the Court of Appeals rejects that defense on this Rule 12 motion, as "[a] prima facie case . . . is an evidentiary standard, not a pleading requirementʺ and ʺit is not appropriate to require a plaintiff to plead facts establishing a prima facie caseʺ because ʺthe precise requirements of a prima facie case can vary depending on . . . context,ʺ and ʺit may be difficult to define the precise formulation of the required prima facie case in a particular caseʺ before ʺdiscovery has unearthed relevant facts and evidence." What it means is that "the 10% threshold is not a safe harbor."

Plaintiff wins associational discrimination claim in Second Circuit

The Court of Appeals has ruled that a man who was fired shortly asking his employer for time off to take care of his ailing daughter has stated a claim for associational discrimination under the Americans with Disabilities Act. This case represents the first time a plaintiff has prevailed in the Court of Appeals on this issue.

The case is Kelleher v. John A. Cook, Inc., issued on September 24. I represent the plaintiff and argued the appeal. Kelleher worked for a Kingston, N.Y., company as a laborer. His young daughter has Rett Syndrome, a serious illness that affects her ability to speak, walk and breathe. After plaintiff told management that his daughter's illness required him to rush home after work to aid in her care, his relationship with the company deteriorated, and at one point, when he asked to work eight-hour shifts for one week (instead of the 10-12 hour shifts), management said "his problems at home were not the company's problems," and he would not receive a raise. The next day, after plaintiff's daughter suffered a near-fatal seizure, plaintiff told defendant he could not work the following Monday. He arrived late to work on Tuesday and learned he had been demoted. A few weeks later, after management again denied plaintiff's request for eight-hour shifts, he was fired, purportedly for arriving to work 10-15 minutes late.

Plaintiff proceeds under the "associational discrimination" theory under the ADA. In 2016, the Court of Appeals outlined how plaintiffs can win these claims:

1) that she was qualified for the job at the time of an adverse employment action; 2) that she was subjected to adverse employment action; 3) that she was known at the time to have a relative or associate with a disability; and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision. One scenario that may support an inference that the adverse employment decision was motivated by associational discrimination is “distraction”: the employer’s “fear[] that the employee will be inattentive at work due to the disability of the disabled person.”

That case was Graziadio v. Culinary Inst. of America, 817 F.3d 415 (2d Cir. 2016). Graziadio was the Second Circuit's first foray into this area. The legal standard it set forth was narrow, and to my knowledge no such claim has survived in the Second Circuit. The district court dismissed Kelleher's case, the Court of Appeals (Jacobs, Leval and Furman [D.J.]) brings it back. The employer argued that Kelleher was really challenging management's refusal to reasonably accommodate his schedule to take care of his daughter. After all, the ADA does not require employers to reasonably accommodate employees in connection with disabled family members. But that argument does not dispose of the case. The Second Circuit states, 

Though the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a disabled person, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination. Thus, in this case, Cook’s demand that Kelleher “leave his personal problems at home” after Kelleher requested one week of shortened workdays supports Kelleher’s claim that his later termination was motivated by associational discrimination.

This evidence also permits the inference that management thought that plaintiff's daughter was a "distraction" under the associational discrimination theory.All the plaintiff needs in a Rule 12 motion to avoid dismissal is "at least minimal support for the proposition that the employer was motivated by discriminatory intent." As the complaint satisfies that requirement, Kelleher has a claim, and the case is reinstated.

Trump ordered to give deposition testimony in NYC campaign assault case

A state court judge in the Bronx has ordered that President Trump must sit for a videotaped deposition in a lawsuit that alleges he had authority over his employees who allegedly attacked protesters outside Trump Tower during the presidential campaign in September 2015. The case is heading for trial soon.

The case is Galicia v. Trump, issued on September 20. Trump's lawyers objected to the deposition, arguing that a sitting president cannot be required to give testimony under oath. In a prior court ruling in this case, the Court summarized the allegations as follows:

On September 3, 2015, plaintiffs assembled in front of the Manhattan office of Republican Party Presidential candidate Donald J. Trump located at 725 Fifth Avenue for the purpose of demonstrating their opposition to him as a political candidate. The high-rise building also houses commercial and residential property. Two plaintiffs were costumed in white hoods and robes, intending to call attention to the recent endorsement of Mr. Trump by David Duke, an individual associated with the Ku Klux Klan and recognized as a former KKK leader. Additionally, the plaintiffs brought with them three signs that they made which read in large letters “TRUMP MAKE AMERICA RACIST AGAIN” the word “RACIST” having displaced the word “GREAT”.

Plaintiffs positioned themselves and arranged their signs along a portion of the sidewalk opposite the entrance of the building. Security personnel approached the plaintiffs and admonished them to remove the signs. This was not the first demonstration by these plaintiffs in front of this property. This was also not the first time there were tensions between the building security and these demonstrators, however on this occasion the situation certainly became more intense. At some point, Keith Schiller (“Schiller”), Director of Security, physically attempted to remove two of the signs from where they were located tearing one in the process. In response, plaintiff Galicia attempted to wrest the sign back from Schiller whereby Schiller’s reaction was to repel Galicia ultimatelystriking him.

Rejecting Trump's arguments that he cannot be forced to give deposition testimony, Justice Gonzalez opens her analysis this way:

More than 200 years ago our founders sought to escape an oppressive, tyrannical governance in which absolute power vested with a monarch. A fear of the recurrence of tyranny birthed our three-branch government adorned with checks and balances. Chief Justice John Marshall famously stated "[t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Put more plainly, no government official, including the Executive, is above the law.

Plaintiffs claim that Trump "has had a substantial role in bringing about violence on the part of his security guards." In his affidavit in support of the deposition subpoena, plaintiffs' lawyer wrote:

Prior to the September 3, 2015 attack on plaintiffs, Donald Trump made the following statement during a press conference on August 11, 2015 wherein he advised that he intended to use violence against protestors in the future, personally or through agents:

"I would never give up my microphone. I thought that was disgusting. That showed such weakness. The way he was taken away by two young women, the microphone, they just took the whole place over and the audience, which like him -- I mean, they were him. They are saying what is going on? How can this happen? That will never happen with me. I don't know if I'll do the fighting myself or if other people will. But that was a disgrace. The way they -- I felt badly for him. But it showed that he’s weak."

On August 25, 2015, defendant Trump directed defendant Keith Schiller to forcibly remove Univision reporter Jorge Ramos from a press conference where Donald Trump was speaking. The physical removal of Mr. Ramos by defendant Schiller, which was captured on film by several news agencies, occurred directly in front of the podium where Donald Trump was speaking. Despite having witnessed his bodyguard of sixteen years1 remove Mr. Ramos, Trump denied even knowing Schiller’s identity when questioned by the press corps after the event by stating, “You’ll have to talk to security. Whoever security is escorted him out.”

Plaintiff's counsel also provides other examples of Trump's public statements suggesting that other protesters should be "roughed up" at his campaign rallies, telling Fox & Friends in November 2015 that "The man you say was roughed up, he was so obnoxious and so loud, he was screaming. I had 10,000 people in the room yesterday. 10,000 people. And this guy started screaming by himself. I don't know, rough up, he should have been -- maybe he should have been roughed up because it was
absolutely disgusting what he was doing." Counsel adds that "Donald Trump has publicly given specific directives to security personnel to use physical force and to engage in unlawful conversion of protestors’ property – the same conduct that is the subject of plaintiffs’ Amended Complaint." In January 2016, during a campaign speech in Vermont, Trump said, "Throw him out into the cold. You know. Don’t give them their coat. No coats. No coats. Confiscate their coats." You get the picture.

The Supreme Court held in Clinton v. Jones (1997) that Bill Clinton was not absolved from responsibility for unofficial conduct; that case alleged that Clinton exposed himself to Paula Jones before he became president. In Zervos v. Trump, 171 A.D.3d 110 (1st Dept. 2019), the Appellate Division has also held that State Supreme Court may exercise jurisdiction over the President (that case involved defamation). But this case raises a new issue: whether the President can be forced to provide sworn testimony for trial. Citing Zervos, Justice Gonzalez stated, "the First Department, which this Court must follow, recently contemplated both the President's involvement during discovery and a trial judge deeming the President's participation at trial necessary." While the plaintiffs in this case did not take Trump's deposition in discovery, they did not waive his trial testimony. "[T]here is no lawful basis to conclude that the President's testimony may only be taken during discovery." Here is the Court order:

"ORDERED, that defendant President Donald J. Trump shall appear for a videotaped deposition prior to the trial of this matter and provide testimony for the use at trial." 

Qualified immunity defeats two claims against school district defendants

The Court of Appeals finds that a teacher who was denied a position over a prior sexual misconduct finding cannot proceed with his lawsuit because he did not have a clearly-established right under the due process clause to seek "meaningful employment."

The case is Mudge v. Zugalla, issued on September 12. Mudge was a physical education teacher who was found in the late 2000s to have groomed two students for a sexual relationship after they were to have graduated. After plaintiff resigned his position, he then applied to work for a different school district, first as a school principal and, when that position fell through, as a substitute teacher. Plaintiff got the substitute teaching position, but the lawyer who prosecuted him for the prior misconduct found out about it, and he grew concerned that plaintiff did not have the moral character to work in the schools because he did not reveal the prior discipline in seeking this position. In fact, plaintiff was not required to report this discipline in applying for the substitute position. A school district investigator questioned why plaintiff was even hired in light of his background, but he became a permanent substitute at some point, but was denied the opportunity to extend that employment into the following year. Then the local newspaper ran a story about plaintiff's removal from the substitute teacher list.

Mudge sues the disciplinary-prosecutor and the district-investigator for due process violations, claiming they prevented him from pursuing his career and also subjecting him to "stigma plus" defamation, also a due process violation, arising from that newspaper article which has prevented plaintiff from finding another position. The timeline here sounds complicated, and it's that complication that gives the defendants qualified immunity. The Second Circuit therefore reverses the district court's contrary ruling, which denied the immunity defenses and ordered the case to trial. Under the appellate ruling, however, there will be no trial.

Qualified immunity is a defense to constitutional damages claims. The defendant is immune if the law was not sufficiently clear at the time of the violation such that she gets the benefit of the doubt when someone sues her for the rights violation. That's the situation here. If you handle Section 1983 claims, you know all about this immunity. Mudge is learning about immunity the hard way.

While lower courts have said that New York recognizes that a teaching licensee is entitled to meaningful employment, the Supreme Court and Second Circuit have never formally recognized that right. The law was therefore not clearly established when plaintiff got the shaft, so the defendants are off the hook on the theory that they could not have known they were violating his rights.

The stigma-plus claim is also gone. These cases allow you to sue a governmental official for defamation if it causes you to lose your job or it interferes with employment opportunities. I can tell you these cases are hard to win, as the legal standard is too high for most plaintiffs to satisfy. Like the due process claim, plaintiff's stigma-plus claim fails under the qualified immunity doctrine, as it was not clearly established at the time that a governmental defendant's "notice of the mere existence of an internal investigation into a license holder's behavior, without some detail as to the possible misconduct being investigated, could give rise to a stigma-plus claim." While the defendants in this case did publicize such an internal investigation, and while plaintiff claims that interfered with is employment prospects, the law was too fuzzy at the time for defendants to be on notice that they were breaking the law.

Court of Appeals issues pro-inmate ruling under the PLRA

Inmates have to file non-frivolous lawsuits or they will get into big trouble. Under the three-strikes-yer-out provision of the Prison Litigation Reform Act, a strike is "an action or appeal" that was dismissed as frivolous, malicious, or for failure to state a claim. With three strikes, you will not be allowed to file any subsequent lawsuits in formal pauperis, a Latin term that says the court will waive any filing fees for poor inmates. While the PLRA was enacted in the 1990s during the Bill Clinton/Newt Gingrich period, courts are still interpreting what the statute means.

The case is Escalara v. Samaritan Village, issued on September 12. Is a strike an actual lawsuit in its entirety, or individual claims? The distinction is important, as many lawsuits have multiple claims. What if someone files a lawsuit that has one frivolous claim but also a meritorious claim? Is that a strike? Most of the Circuit Courts that have taken up this issue have found that "dismissal of some but not all of the multiple claims in a complaint" cannot constitute a strike. The Second Circuit (Wesley, Chin and Bianco) agrees with that reasoning and finds that "mixed dismissals are not strikes under the  PLRA."

This reasoning is good for Escalara, because he had five cases, some of which had frivolous claims, such that only two of the cases are strikes. One dismissal was strictly on procedural grounds because he did not file a legible complaint, so that's not a strike. Another case was not a strike because, while the claims were dismissed, they were not found to be frivolous or malicious. A third case had some but not all claims dismissed; one claim was dismissed for lack of subject matter jurisdiction (not a frivolous strike) and the other was dismissed for failure to state a claim, which is a strike. One of plaintiff's other cases was a strike under the rules. A fifth case may or may not have been a strike since it involved a tricky area of law involving witness immunity, and the Court of Appeals leaves that issue alone since he can win this appeal even if that fifth case was in fact a strike. In the end, when you do the math, while plaintiff's cases were all dismissed for one reason or another, they were not all frivolous. Under the formulation adopted by the Second Circuit in counting strikes, Escalate is not a three-striker.

Inmate wins retaliation claim against his jailers

This inmates rights case finds the prisoner has a legitimate retaliation case against his jailers, whom he claims punished him for filing grievances over the conditions of confinement.

The case is Brandon v. Kinter, issued on September 10. I wrote about the plaintiff's big win on the religious freedom portion of this case at this link. But plaintiff also says the guards retaliated against him in violation of the First Amendment, which protects the right of inmates to grieve their living conditions. He says the defendants retaliated against him in three ways: (1) they took away his medical diet; (2) one of the guards served him a meal containing pork, prohibited under Muslim practices; and (3) the guards allowed another inmate to spit on him. The case got dismissed in the district court, but the Court of Appeals (Walker, Calabresi and Chin) reinstate the lawsuit. Brandon will have his day in court.

The legal standard for constitutional retaliation claims is whether the government's response to your speech activity would deter a person of ordinary firmness from complaining or speaking out again. This separates the trivial claims from the real claims, and recognizes that silencing critics prevents those critics from speaking out again. If the inmate can prove that, then he's got an "adverse action" worth suing over.

As for the removal of plaintiff's medical diet, the Court finds that the diet was intended to address his high cholesterol and heart problems. The medical diet ensured he would be served foods to which he was not  allergic. "Given the potential consequences for Brandon's health, the removal of his medical diet could reasonably be found to be an adverse action." We can also infer the removal of the medical diet was caused by plaintiff's speech, as it happened shortly after plaintiff filed most of his grievances, and  the guards made hostile comments to plaintiff about his grievances, further demonstrating a link between his grievances and the diet shenanigans.

The same analysis applies to plaintiff's claim that the jail gave him pork in retaliation for the grievances, which themselves involved the improper pork in his diet. One way plaintiff can win the case is through evidence that he got pork when other inmates at the same meal got no pork at all in a supposedly meatless meal. This is a close call, but it's going to the jury. Finally, the Court says plaintiff can prove the guards allowed another inmate to spit on plaintiff shortly after he filed his grievances. The guards knew the offending inmate (his name as Tiny) was aggressive and had attacked another inmate. The placed him in the cell with plaintiff. Not only does plaintiff show this happened after he filed grievances, but the guards made hostile statements: "If he grieves another tray, I'm going to lock his ass up!" said one in reference to plaintiff's complaints about the pork.

Fox News loses appeal over Seth Rich conspiracy theory

I was not following the Seth Rich story, but this case lays it out in the course of a lawsuit his parents filed against Fox News and two of its reporters over the conspiracy theory that Rich, a 27 year-old Democratic Party staffer, was murdered for cooperating with Wikileaks, which ultimately released the mails that sunk Hillary Clinton's presidential campaign in 2016. The case alleges the defendants unlawfully subjected Rich's parents to extreme emotional distress in furthering the false conspiracy. The Court of Appeals says the Rich family can proceed with the case.

The case is Rich v. Fox News, issued on September 13. This case involves traditional tort theories: Intentional Infliction of Emotional Distress and Tortious Interference with Contract. These are state law principles that sometimes wind up in federal court. Intentional Infliction claims are difficult to win, and the New York Court of Appeals has never sustained such a claim, though other courts have done so. You have to prove the defendant did something so outrageous and beyond the pale that it foreseeably caused you to suffer emotional distress. This high standard ensures that most personality disputes and conflicts do not find their way into court. As for the contract claim, it's as it sounds: you cannot interfere with the contractual relationship between other people.

The Court of Appeals (Calabresi, Droney and Underhill [D.J.], summarizes the allegations, and they are not pleasant:

Malia Zimmerman (a Fox News reporter) and Ed Butowsky (a Fox News commentator) allegedly set out “to take the conspiracy theory from the fringe to the front pages and screens of the mainstream media.” Over the course of several months, Zimmerman and Butowsky recruited a Fox News contributor, Rod Wheeler, to help them infiltrate the Rich family. They convinced the Plaintiffs, Seth’s parents, to hire Wheeler as a private investigator to look into the circumstances of Seth’s death. And they then exploited Wheeler’s connection to the Riches to give credence to what Zimmerman and Butowsky knew were false accusations against Seth—which Zimmerman and Butowsky widely disseminated through Fox News. They did this, it is claimed, with full knowledge of the harm it would do to Seth’s parents.

If you do this to someone, you will get sued for IIED, as they call the Intentional Infliction cases. Judge Calabresi, an expert on American tort law, says that while IIED cases are hard to prove, "We have no trouble concluding that -- taking their allegations as true -- the Riches plausibly alleged what amounted to a campaign of emotional torture" but setting up the Riches with an "investigator" who would win their trust and allow them to advance the false story that Seth Rich was in contact with Wikileaks and that he leaked the emails himself.

As for the contractual inference claim, the Riches did sign a contract with the investigator. The investigator breached that contract in violating confidentiality with his clients. Plaintiffs allege that the breach happened because of Fox News's interference as a means to advance the false story about Seth Rich. So what we have is traditional tort theories for the modern age. Judge Calabresi would tell you that American tort law is timeless, crafted and molded by judges over the course of more than 100 years to deal with the multitude of situations that cause harm and require that someone be held responsible for that harm. These doctrines are taught in first-year law school as a means to emphasize the basic principle that if you do something negligently or intentionally and hurt someone in the process, you can be responsible for their damages. Calabresi, the former Dean of Yale Law School teachers these principles to Fox News.

Court of Appeals says Trump must face suit under the Emoluments Clause

The Second Circuit has ruled that New York City business owners can sue the president under the Emoluments Clause, the constitutional provision that says the president (and other federal office holders) cannot "accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or any foreign state." Since this case conflicts with a ruling from the Fourth Circuit, this case is a candidate for the Supreme Court.

The case is Citizens for Responsibility and Ethics in Washington v. Trump, issued on September 13. The plaintiffs own hotels, restaurants and event spaces in New York City. The lawsuit alleges they directly compete with Trump's establishments for foreign, state, and federal government clientele. They also cite statements from Trump "implicitly soliciting patronage of government officials and apparently acknowledging that, in making governmental decisions, he favors governments that patronize his businesses." They also "allege that foreign governments have taken note of, and been influenced by, the message that enriching the President by giving patronage to his establishments earns his favor." The plaintiffs claim they are losing money because Trump is profiting off the presidency.

The Emoluments Clause received little attention until a few years ago, when Trump was elected president. Most of us never even heard of the Emoluments Clause until recently. The contours of litigation under this provision are not clear, including whether you can even sue the president under it. The district court ruled that this dispute is a "political question" that cannot be resolved by the courts, but the president's lawyers for some reason are not defending that ruling on appeal. Instead, they are defending the district court's finding that plaintiffs lack standing to bring this action.

Standing is a concept unique to litigation. Since the Constitution only allows the courts to resolve actual (and not theoretical) disputes, the plaintiffs in any case have to prove they will be directly impacted by the alleged unlawful governmental activity. Over the years, standing has killed off many good lawsuits. Not this one, at least in the Second Circuit (Leval, Droney, and Walker in dissent). Plaintiffs get around the standing rules with affidavits and expert input about how the president has invited foreign governments to use his private facilities, and how those entreaties have affected them financially as his competitors. The Circuit uses the traditional standing analysis as it would any other case, except that it knows this case involves the president. My guess is the Court proceeds this way to signal that the president is not above the law, and that if traditional legal principles require him to defend himself in court, so be it.

In dissent, Judge Walker notes the Emoluments Clause has never been directly litigated since the Constitution was drafted in 1787, and that nothing in the Clause "addresses competition in the marketplace or the conduct of business competitors generally." Nor can the Clause "be considered sweeping anti-corruption provisions." Judge Walker also addresses the elephant in the room: "this case is deeply political and thus finds itself in an area where federal courts ought to tread lightly. President Trump was democratically elected by the American people -- and he was elected with his business holdings and brand prominence in full view." He adds, "Whether the courts should properly play any role pertaining to that relationship [between the president and Congress] in the context of the Clauses will have to determined in the future." Ultimately, Judge Walker finds plaintiffs have no standing.

This case is heading to the Supreme Court. As I noted the Fourth Circuit has reached the opposite conclusion on the same issue, which makes this case certworthy, which is Supreme Court-speak for worthy of a certiorari petition to the Court asking the Justices to take on the case.

Muslim inmate wins religious discrimination appeal

In a resounding win for a Muslim inmate who claims prison officials violated his religious freedoms in denying him proper meals, the Court of Appeals holds the plaintiff can prevail at trial on both his religious discrimination and retaliation claims.

The case is Brandon v. Kinter, issued on September 10. Inmates do have constitutional rights, though they are watered down in the interests of maintaining prison security and efficiency. Plaintiff claims the jail made him eat port on dozens of occasions. The jail says the pork means happened only about ten times, not frequently enough to substantially burden plaintiff's sincere religious practices. The district court said there were only ten offending meals, not enough to violate the First Amendment's Free Exercise Clause.

The Court of Appeals (Calabresi, Walker and Chin) says the jury may find plaintiff was given a pork diet on 63 occasions over the course of about seven months. If true, then plaintiff can win the case. The Court of Appeals held in 1975 that the provision of food cannot unconstitutionally burden inmate rights. More than 60 meals is enough for plaintiff to win. But the Court of Appeals takes things further, holding that even if plaintiff was given pork on ten occasions, he can still win the case. The Court reviews a line of cases holding that even a "relatively small number of violative incidents did not prevent us from finding that a prisoner's religious beliefs were substantially burdened." In reaching this holding, the Court cites cases dating to the 1970s, finding that even a single violation can burden religious freedoms on jail. While the government says ten incidents are not enough, that makes the Second Circuit uncomfortable. The Court says:

For Muslims who follow Islamic dietary laws, consuming pork is a sin at any time, regardless of whether the consumption occurs during a holiday or not. The Quran expressly commands against it. See, e.g., Quran 2:173. Accordingly, when Muslim inmates are served meals containing pork, they are faced with the choice of disobeying the commands of their faith or not eating. We have correctly recognized that it is not generally the role of courts to distinguish between important and unimportant religious beliefs. And we should be reluctant to draw lines that would distinguish and require us to give more importance to some religious commands (such as fasting during Ramadan) over others (such as abstaining from the consumption of pork). The defendants give us no good reason to make such distinctions here. Indeed, it would be absurd to require that courts, in order to determine what constitutes a substantial burden, be made to decide the number of violations of a particular religious tenet that make a sin grievous. Yet that is what the defendants’ arguments would force us to do.

The Court also engages in discussion about personal involvement of the defendants. In Section 1983 cases, you have to name the wrongdoers as defendants. In Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), the Court of Appeals set forth a series of standards to resolve when individuals may be sued, including supervisors. There has been some debate in the federal courts over whether portions of the Colon test survive the Supreme Court's ruling in Ashcroft v. Iqbal (2009), but this ruling does not address that issue, maybe because no one briefed it.

The Court also says the jury may find that defendants were deliberately indifferent to plaintiff's rights. We all know that is the standard for these cases. But the Court of Appeals says there may be argument that Section 1983 cases can be won upon a showing of negligence, as the statute contains no state-of-mind requirement, and the Supreme Court said in Daniels v. Williams, 474 U.S. 327 (1986), that "depending on the right, merely negligent conduct may not be enough to state a claim" and declined to "rule out the possibility that there are other constitutional provisions that would be violated by mere lack of care." The Second Circuit has never squarely addressed this issue, as no one seems to brief that issue, and it was not briefed in this case. But that issue remains an open question for future litigants. Hey jailhouse lawyers, are you aware of this?

Wrongful death verdict for the police is upheld despite questionable jury charge

It really ends with the jury. When the verdict comes in and the losing side vows to appeal, those efforts usually fail. Appellate courts do not like to upset jury verdicts unless something went horribly wrong at trial. It is not enough to say you had better evidence than the losing side, as the jury is allowed to believe what it wants. The best way to challenge an adverse verdict on appeal is by attacking the jury instructions. The trial judge has no discretion to issue bad instructions. That was the strategy in this appeal.

The case is Hill v. Quigley, a summary order issued on September 5. This was a wrongful death trial. The decedent's mother brought the case. When the police tried to arrest Tyjuan Hill during a prostitution sting operation, Hill ran away and the officers tackled him, causing a struggle. Quigley was able to handcuff one of Hill's wrists, but not the other. Quigley said (the jury must have believed) that Hill pulled out a handgun and pointed it at the police. Quigley shot Hill in the back of the head. Hill lost the case, hence this appeal.

Most appellate judges used to sit as trial judges, so they appreciate the jury process and recognize that only the jury may resolve conflicting accounts. That's why most appeals from adverse verdicts fail. We tell the jury they are the ultimate factfinders. But the trial judge can mishandle the trial by making bad evidentiary rulings or issuing a foul jury charge. Hill's lawyer on appeal knows this, so he focused on the jury charge dealing with excessive force. The police are allowed to use excessive force if they reasonably perceive they or someone else is facing a significant threat of death or serious physical injury. As it happens, the instruction was problematic, allowing plaintiff's appellate lawyer to invoke Dancy v. McGinley, 843 F.3d 93 (2d Cir. 2016), which said it was prejudicial error for the judge in that excessive force case to tell the jury that "to impose liability, [the jury] was required to find that Williams ‘acted intentionally or recklessly’ rather than ‘merely negligent[ly]’ in performing the acts alleged.” That instruction was confusing "because a plaintiff alleging excessive force need not prove that the officer 'intended the results of his actions or consciously disregarded their consequences.'” (I helped brief the appeal in Dancy).

The instruction in this case was similar to the bad instruction in Dancy. But Hill loses the appeal because the bad instruction was "harmless error." The Second Circuit (Hall, Livingston and Restaini [on loan from the Court of International Trade) says "In Dancy, the instructional error was not harmless because the police officer’s lawyer suggested at trial that the broken jaw was unintentional, placing intent at issue. Here, intent was not at issue at trial. The defense theory was that the use of lethal force was justified—not that the shooting was accidental. Quigley described the shooting as an intentional act. Thus, to the extent the District Court failed clearly to convey that Quigley could be held liable even if he unintentionally caused Tyjuan’s death, that error is harmless." See how hard it is to win the appeal from an adverse jury verdict?

Inmate loses appeal under Prison Litigation Reform Act

Under the Prison Litigation Reform Act, inmates cannot file a lawsuit unless their file an internal grievance at the correctional facility. Once that grievance is denied, the inmates can then bring the lawsuit. The idea is that the grievance procedure may reduce the number of inmate lawsuits because the jail might correct the problem without litigation. It all sounds simple, but this case shows that it's not always that simple.

The case is Grafton v. Hesse, a summary order issued on August 29. Plaintiff says he wanted to file a grievance, but the jail did not make the process available to him. Here is the law on that issue, from the Supreme Court's ruling in Ross v. Blake (2016):

there are three circumstances in which an administrative remedy is unavailable: (1) “it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) the remedy is “so opaque” that “no ordinary prisoner can make sense of what it demands;” and (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.”

Plaintiff invokes the Ross exceptions because prison staff intimidated him and "put him and his co-plaintiffs 'under threat of retaliation' due to the grievances they had filed challenging prison conditions in the medical unit." This sounds like something that might happen in jail, but the Court of Appeals (Hall, Livingston and Restaini [on loan from the Court of International Trade]) is not buying it. Without affirmative measures taken by prison staff to thwart the grievance process, the inmate cannot claim that threats like this prevented him from filing a grievance. That's the rule in Ruggiero v. County of Orange, 467 F.3d 170 (2d Cir. 2006), a case that I briefed (and lost). Since "Grafton and his co-plaintiffs, in their complaint, pleaded that they had filed grievances subsequent to the staff members’ threats," he was never actually prevented from filing a grievance." While plaintiff also argues that prison staff "were consistently unwilling to provide relief and that the grievance system was a 'dead end with him being asked to supply documents that he did not have and grievances not being collected and processed as required," that argument also fails. The Court reasons:

Grafton has not provided any evidence regarding the outcome of his past grievances and indicating if or how other NCCC inmates’ grievances had been resolved. The evidence Grafton does provide—several of his past grievances containing the notation “Grievance Accepted”—undermines his argument that prison staff had made the prison grievance system a dead end by not collecting and processing grievances as required.

Megan's Law home visits do not violate Fourth Amendment

The Court of Appeals has ruled that the County of Suffolk may legally authorize a private entity to visit the private homes of registered sex offenders without a warrant in order to verify their addresses. In doing so, the Court applies the "special needs" exception to the Fourth Amendment.

The case is Jones v. County of Suffolk, issued on September 4. Megan's Law was enacted in the 1990s to require that sex offenders register their addresses with the government. They also have to update the government if they change their addresses. This allows members of the community to know if any offenders are living in the neighborhood. Jones brought this lawsuit challenging these warrantless visits under the Fourth Amendment.

The Court of Appeals (Droney, Raggi and Cabranes) upholds the program. The Fourth Amendment is vague on its face, stating only that the government cannot undertake unreasonable searches and seizures. What is "unreasonable?" The answer to that question lies with the judges who interpret the Constitution. The Supreme Court has handed down reams of case law over the years on that question. One line of cases says the government can conduct a warrantless search under the "special needs doctrine," which says the search is legal if the government has a "substantial" interest such that the Fourth Amendment's "individual suspicion" requirement need not apply. The warrantless search is also legal under the "special needs doctrine" if the government's objective is "distinct from the ordinary evidence gathering associated with crime investigation." Cases uphold searches under this doctrine are rare.

But this is one of those cases that uphold the search under the "special needs doctrine." While the plaintiff argues that these searches are improperly intended to find incriminating information, the Court of Appeals disagrees. The County says that, despite thousands of home visits, the searches have only resulted in a handful of arrests of sex offenders who did not register the correct address. "The record does not support an immediate objective of the program was 'ordinary evidence gathering associated with crime investigation.'" In addition, the information transmitted by the private groups who conduct these searches did not constitute per se evidence of a crime. The Court concludes, "the program advances the government's substantial interest in reducing sex offender recidivism by improving the accuracy of the registry. Thus, the program serves a special need 'beyond the normal need for law enforcement.'"