Court of Appeals strikes down Cuomo's restrictions on religious gatherings

Covid-19 caselaw is developing at a brisk pace. The Constitution says nothing about pandemics, and it does not speak to emergencies in general, at least not in the context of civil rights such as equal protection or religious freedom. That's the theme of the latest ruling from the Second Circuit, which strikes down Gov. Cuomo's executive order that restricted the size of church and other religious congregations.

The case is Agudath Israel of America v. Cuomo, issued on December 28, only 10 days following oral argument. In October 2020, Cuomo issued an order that identified three zones, determined by the rate of Covid-19 infections. At issue in this case are the red and orange zones. In the red zones, non-essential gatherings are prohibited, restaurants can remain open for take-out only, and schools may continue with in-person instruction. Houses of worship have a 25% capacity limit or 10 people, whichever is fewer. In orange zones, non-essential gatherings can have up to 10 people, and gyms and tattoo parlors are closed. Restaurants can provide outdoor service, other businesses may operate without additional restrictions, and schools may remain open. But houses of worship have a 33% capacity limit or 25 people, whichever is fewer.

The Supreme Court has already entertained this issue on a couple of occasions, including in this case, holding the government to strict limits on how it can restrict religious gatherings. Following that lead, the Second Circuit (Livingston, Menashi and Park) hold the Governor to "strict scrutiny," which is a legal phrase that means the government cannot get away with certain restrictions without a compelling reason, and the challenged rule or order must be narrowly-tailored to satisfy that compelling interest. The Governor's order in this case fails strict scrutiny because it singles out houses of worship for restrictive in-person gatherings that do not apply to other establishments, including so-called essential services like liquor stores. While a facially-neutral limit on public gatherings might be constitutional, even if they have the effect of restricting religious observances, that's not on the table in this case. And, while some businesses (such as news media and certain retail stores) are deemed "essential," non-essential activities, such as religious worship, have greater restrictions.

The unequal treatment of religious and non-religious services creates a presumption that the distinction violates the Free Exercise Clause of the First Amendment, which protects the right to worship.  But the Court of Appeals also says the restrictions are not sufficiently narrowly-tailored to get around the strict rules against these restrictions. The court says the restrictions stem from broad generalizations about church-going behavior, such as the assumption that people enter and leave the building together and remain in the building for long periods of time. But even if these generalizations are true, the Governor's order does not require masks or distancing, which might also reduce infections. The Court of Appeals notes that we cannot assume that churchgoers will ignore these alternative protective measures. For one of the two cases that are the subject of this appeal, the narrow-tailoring issue is sent back to the trial court to take that up in the first instance. But it looks like the Second Circuit has foreshadowed how that issue should turn out: against the Governor's order.

The Second Circuit wraps up with a discussion about the role of the courts in a public health emergency.  I wonder if the court anticipates other judges borrowing this language in their own pandemic cases. The Second Circuit quotes from a recent Supreme Court ruling stating that the Constitution cannot be "cut . . .  loose during a pandemic." While the court recognizes that regulating public health during a pandemic is a compelling government interest that would justify a strict governmental response, it also says the response must be carefully tailored in order to prevent any unnecessary infringement on constitutional rights. 

Arbitrator properly handled dispute involving the hiring of temporary, non-union workers

The whole point of arbitration is to keep labor-management disputes out of court. This means that when a party challenges an adverse arbitration ruling in court, they face an uphill battle. In this case, after losing the arbitration, management took the issue to court, which rules that the arbitrator did not violate the rules and that the arbitration ruling will stand.

The case is A&A Maintenance v. Ramnarian, issued on December 16. A&A provides janitorial and maintenance services to commercial real estate and educational institutions. Its workforce is unionized and the parties must therefore comply with a collective bargaining agreement that addresses when A&A may employ "substitute employees" to fill in for people who are out on disability or worker's compensation or extended leaves. When the union noticed an unusual number of new, non-union employees at a college one day, it tried to resolve that issue without arbitration, but the dispute eventually went to an arbitrator, who ruled in the union's favor, finding that A&A had hired and rehired these people to perform bargaining unit work, and it did so to save money and to effectively keep them on as probationary employees with fewer rights in the workplace.

We have two issues here. First the employer says the arbitrator improperly allowed the union to frame the arbitration issue differently throughout the process. The first issue statement was in the original grievance, claiming the employer violated the CBA in hiring these "substitute employees." The union later framed the issue for the arbitrator as whether the employer violated the CBA by using "temporary employees," "a term undefined in the CBA and broader in scope than substitute employees," to perform bargaining unit work. The difference between the two issue statements was that the first one mentioned substitute employees, and the second mentioned temporary employees. Management said the first issue statement was proper, not the second, because "substitute employees" carries a narrower definition than "temporary employees."

The arbitrator said the union could frame the issue the second time around this way, and the Court of Appeals (Sullivan, Katzmann and Calabresi) agrees, finding the arbitrator did not resolve an issue that was not properly before him. The Court says that management's argument elevates form over substance, as the substance of the union's initial grievance was its contention that non-union workers were improperly performing bargaining unit work, a dispute which covers A&A's use of temporary employees. The union's grievance was based on facts that were known to management when the union filed the grievance, even though the grievance did not explicitly use the terms "temporary employees" and "probationary employees."

Relatedly, the Court says, the arbitrator did not rewrite the CBA in ruling that A&A violated the contract by hiring temporary employees even though the CBA does not mention "temporary employees. This technical argument is also rejected, as the dispute arose when A&A tried to hire non-union temporary workers "by means of a strained interpretation of the probationary period [under the CBA]." Since the issue resolved by the arbitrator concerned the interpretation, application, or claimed violation" of the contract, the arbitrator was able to resolve this issue and did not exceed his authority in doing so.

No retaliation claim for teacher who filed an EEOC charge

Proving causation in retaliation claims under Title VII and the First Amendment remans a tricky proposition without direct evidence ("we are firing you because you complained about XYZ") and the plaintiff has to rely on circumstantial evidence ("management loved me until I spoke out and then they issued a paper trial to fire me"). This case highlights that difficulty.

The case is Agosto v. New York City Dept. of Education, issued on December 4. I have written about the First Amendment part of the case at this link. But plaintiff (a teacher) also had a Title VII claim. He says that 3.5 months after filing the EEOC charge in March 2017, a "letter to file" was placed in his personnel folder in June 2017. Is that time-gap enough to prove retaliatory intent? The Court of Appeals (Menashi, Lohier and Cabranes) says it is not enough.

The Second Circuit notes that "this court has not imposed a strict time limitation when a retaliation claim relies exclusively on temporal proximity." Some cases extend it to eight months. Others limit it to three months. Really, the cases in this area are all over the place. Of course, plaintiff's lawyers will highlight the eight-month rule. Management lawyers will cite the two-month rule that turns up in cases from time to time. But in this case, the plaintiff "acknowledges that the gap of more than several months is typically too like by itself to survive summary judgment." 

That concession hurts plaintiff in this case, but what also hurts him is evidence that the letter to file was triggered by an independent actor, the Parent Chairperson of the School Leadership Team, who complained that plaintiff had made a threat after a meeting. This indicates that the letter to file "was not a contrived excuse to penalize Agosto for prior protected activity." We call that the independent causation principle, which allows courts to exercise their judgment in determining what a jury can legally accept in finding causation. At some point, the court will decide that an independent event in the chain of events will absolutely kill the retaliation case. This is one of those cases. 

Court clarifies retaliation standards for Federal Railroad Safety Act cases

A relatively obscure federal statute protects railroad workers from retaliation for certain protected activity. The statute is the Federal Railroad Safety Act. In this case, the Court of Appeals clarifies how the Act applies in practice, issuing this ruling a full year after oral argument.

The case is Tompkins v. Metro-North Commuter Railroad, issued on December 17. The Act says the railroad cannot retaliate against employees "for refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties." Plaintiff was disciplined because he refused to walk to a wheel shop at his work location, claiming it was too icy and dangerous, as evidenced by other workers slipping on their way to the wheel shop. 

To win a case like this, the plaintiff has to show the hazardous condition presented an "imminent danger of death or serious injury" and "the urgency of the situation did not allow sufficient time to eliminate the danger without such refusal." The Second Circuit (Walker, Sullivan and Nathan [D.J.]) says for the first time in this Circuit that the plaintiff must objectively prove such a danger, and that his subjective belief of a dangerous condition is not enough. Other Circuits have applied this formulation, and now it applies in the Second Circuit. Under the rule, plaintiff loses. The Court says he submits no evidence to support his generalized statement that the walkways at the rail yard were unsafe, other than that other employees had slipped when they walked. In addition, "it is not necessarily true that an employee slipping on a walkway indicates that the trip as a whole presented a hazardous condition." Other employees did not refuse to make that walk to the wheel shop, and while they ultimately drove to the wheel shop, that could mean it they were tired or cold. The foremen also believed the walk was safe. While plaintiff could have argued that the foremen reached this conclusion as a means to convince the workers to get to the wheel shop and continue working, plaintiff did not make such an argument. 

Plaintiff also claims that management retaliated against him for reporting the unsafe walkway condition. This issue also allows the Court of Appeals to clarify the standards for these cases, holding for the first time that plaintiffs must provide some evidence of retaliatory intent. As other Circuits have held, the statute expressly requires the plaintiff to show that management "discriminated" against him for engaging in protected activity. That implies a requirement that the plaintiff show retaliatory intent. While the plaintiff need not show that retaliatory intent was the sole factor behind the discipline, or that management acted only with retaliatory motive, "the plaintiff must . . . show more than a temporal connection between the protected conduct and the adverse employment action" to win the case. This standard is in line with that reached in other Circuits, from which the Second Circuit devises the following guidelines: 

we will consider the following factors: (1) whether and to what extent the disciplinary measures were related to the protected activity, (2) the temporal relationship between the protected activity and the disciplinary measures, including whether any intervening incidents occurred that could independently justify the discipline, (3) whether the disciplined employee was represented by counsel or a similar representative in the disciplinary proceedings, and whether the disciplinary measures were upheld on appeal, (4) whether, if applicable, the disciplinary measures were upheld following Department of Labor proceedings, and (5) whether the persons accused of hostility towards the employee’s protected activity participated in the disciplinary decision.

Under the retaliation test, plaintiff loses. Factors 3 and 5 favor Metro-North. Factor 4 is inapplicable because DOL did not get involved, and factors 1 and 2 favor plaintiff, but only slightly. "Rather, the record supports that Tompkins was disciplined for failing to meet a legitimate expectation by an employer that when orders are given employees will comply." 

Plaintiff further claims retaliation because he was disciplined for conduct unbecoming an employee after speaking to his foreman in the lunchroom about the discipline and discrepancies between the foreman's account and that provided by other witnesses (a conversation that made the foreman feel threatened). Plaintiff says this discipline was also motivated by his safety complaint. While factor 3 favors plaintiff because an arbitrator overturned the discipline from that incident, factors 1 and 2 strongly favor management; the lunchroom incident with the foreman was an intervening event that killed off the causation between the protected activity relating to safety and the discipline. The fact that the discipline was overturned does not support plaintiff's argument.

You can sue government defendants for religious discrimination under the Religious Freedom Restoration Act

The Supreme Court has held that plaintiffs in religious discrimination cases against the government can name individual governmental supervisors in their lawsuit. This is the rare unanimous Supreme Court ruling in favor of civil rights plaintiffs. 

The case is Tanzin v. Tanvir, issued on December 10. Plaintiffs claim the federal government violated the Religious Freedom Restoration Act by placing them on the no-fly list solely because they are practicing Muslims who would not act as informants against against their religious communities. The Second Circuit interpreted RFRA to allow plaintiffs to sue individual defendants, and the Supreme Court agrees.

RFRA was enacted by Congress in the 1990s after the Supreme Court, in Employment Division v. Smith (1990), made it more difficult for plaintiffs to sue the government under the Free Exercise Clause. The Smith court said that neutral governmental policies or rules that incidentally disadvantage people on the basis of their religious practices do not violate the Establishment Clause. This controversial ruling deviated from prior Supreme Court cases, so Congress (back in the days when Congress still worked together) made passing RFRA a priority. The questions is how do we interpret RFRA and does it allows plaintiffs to sue individuals or only the government.

Statutory analysis is not the most exciting topic in the legal world, but it's actually pretty important, because if the court views the statute in a particular way, that is how the statute will be applied in the future unless Congress deals with the misinterpretation. Here, the Court finds that since the statute says plaintiffs can sue "the government," defined as "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States." That language seems clear, that you can sue an individual in his personal capacity. The federal government had its own interpretation, though, which the Court rejected: that you can only sue governmental officials in their official capacities. The feds said this interpretation makes sense because the statute references "official[s]" as among the appropriate defendants. Writing for the Court, Justice Thomas says this argument may be "plausible," but it does not work here in part because the statute also says you can sue an official "or other person." This language "clarifies that 'a government' includes both individuals who are officials acting under color or law and other, additional individuals who are nonofficial acting under color of law." In Section 1983 litigation, suing people acting under color of law means suing them in their individual capacities. Congress presumably had that principle in mind when it enacted RFRA.

The final question in this case is what can plaintiffs under RFRA sue for? The statute says you can recover "appropriate relief." What does that even mean? The Court says that phrase encompasses damages claims. The Court notes that such relief has always been available under Section 1983, and it seems that Congress wanted plaintiffs under RFRA to recover the relief that had been available to them under the Smith ruling that RFRA was intended to correct.

No Cat's Paw for plaintiff claiming retaliation for filing safety objections at the railroad

Every now and then the Court of Appeals decides a retaliation case brought under the Federal Railroad Safety Act (FRSA). This is a little-known statute that provides relief for employees who suffered retaliation for speaking out against safety violations on the railroad. These cases are normally resolved under the same legal principles that guide cases under Title VII and the other well-known anti-retaliation laws. And like those cases, lawsuits brought under the FRSA often lose under the complex evidentiary model covering all retaliation claims.

The case is Petronio v. National Railroad Passenger Corp., a summary order issued on December 2. Plaintiff says he was fired after sending emails to Amtrak management requesting trainings and reporting safety concerns. But this claim fails, the Second Circuit says, because there is no evidence that the Amtrak officers who charged and terminated plaintiff even knew about his protected activity. To get around this, plaintiff relies on the Cat's Paw theory of liability, which holds that even if the decision makers did not know about the protected activity, the organization is liable if a lower-level supervisor who did know about the retaliatory activity played a meaningful role in the plaintiff's termination. (If you are wondering what this has to do with the cat's paw, it has something to do with Edgar Allen Poe and a story he wrote about a monkey who fooled the cat with a chestnut near the fireplace).

The Cat's Paw is a nice evidentiary tool for plaintiffs who need to connect their protected activity with their termination, but it will not work in every case, like this one. Plaintiff says that Collins, who knew about his safety reports, played a meaningful role in his termination because he suspended plaintiff and testified at his disciplinary hearing. But someone else, Obey, was responsible for filing the charges, and it was Obey who advised Collins on how to proceed against plaintiff. While Collins testified at the hearing, others testified against plaintiff also, and decision makers relied on that testimony as well in finding that plaintiff had violated company policies. 

Plaintiff tried to show that Collins was biased against him because Collins said that he thought it was odd that a new employee like plaintiff would complain about safety violations outside the chain of command. But this testimony does not show bias against plaintiff; it only shows that Collins thought plaintiff's conduct was unusual. A fine distinction, but a distinction nonetheless.

Pretext not enough to avoid summary judgment in discrimination case

Here is another case demonstrating that even if the plaintiff can show the employer lied about the reason for his termination, the court can still dismiss the case on a summary judgment motion if that lie is not enough to prove discriminatory intent.

The case is Palencar v. New York Power Authority, a summary order issued on December 8. Prior to 1997, the Second Circuit usually held that if the employee makes out a prima facie case of discrimination and can prove the employer's articulated reason for his termination (or demotion, etc.) was knowingly false, the case will go to the jury on the discrimination claim. That changed in 1997, when the Circuit issued Fisher v. Vassar College, an en banc ruling that said pretext is not always enough to prove discrimination, and that plaintiff may still have to proffer other evidence of discriminatory intent. We call that the "pretext plus" theory. Although the Supreme Court in Reeves v. Sanderson Plumbing (2000) suggested that pretext alone is usually enough and that pretext plus is the exception, the Second Circuit continued to adhere to a pretext-plus evidentiary model, though every few years it reverses the grant of summary judgment on pretext alone. That's rare, though.

The Court of Appeals in this case assumes plaintiff has made out a prima facie case. It focuses on whether plaintiff can prove he was fired for discriminatory reasons. In doing so, the Court (Sullivan, Park and Nardini) reminds us that this requires a totality-of-the-circumstances approach, drawing from cases that were decided in the last 1990s and early 2000s. 

From that angle, the Court says, plaintiff has no case because the record shows that plaintiff's subordinates "lodged repeated complaints against him over the course of several years, that he was consistently combative and defiant toward his supervisors, and that he was unwilling to incorporate constructive feedback in response to his reviews over that time." What it all means is that even if plaintiff can show "some evidence of pretext," that evidence cannot override the evidence of plaintiff's performance deficiencies. The Court finds that plaintiff cannot prevail on his sexual orientation discrimination claim.

Sexual harassment and assault at Suffolk County jail may violate Section 1983

This case is disturbing on several levels. It involves inmates at the Suffolk County jail who claim one of the correction officers got away with sexually harassing and assaulting them for years because jail management knew about it but looked the other way. The primary question raised on appeal involves whether the plaintiffs can prove municipal liability under Section 1983. The Court of Appeals says they can.

The case is Lucente v. County of Suffolk, issued on November 17. The offending officer's name is Joseph Foti. The Court of Appeals (Kearse, Carney and Bianco) lays out the allegations. After Internal Affairs investigated, it found that Foti had violated departmental guidelines in the course of sexually assaulting the inmates. But prior to Foti's ultimate retirement (which he claimed had nothing to do with the Internal Affairs report), none of his supervisors ever spoke to him about this. Yet, the district court dismissed this Section 1983 case against the County, holding that Foti was merely a rogue officer whose actions cannot give rise to the "policy and practice" that plaintiffs need to prove municipal liability under Monell v. Dept. of Social Services, the seminal Supreme Court ruling on this issue from 1978. The district court also excluded allegations of Foti's misconduct from the 1990s as time-barred, and ruled that no county policymaker had knowledge of Foti's actions. The district court also ruled that plaintiffs cannot sue the county, focusing on whether management knew about the assaults rather than the allegations of sexual harassment. The Court of Appeals reverses, rejecting the district court's analysis in its entirety.

First, there was nothing isolated about Foti's misconduct, the Court says, because "the record is replete with evidence of inappropriate touching and/or other sexual harassment of female inmates on a regular basis by Foti" over the course of 18 months. And it was not limited to the six plaintiffs in this case. The evidence suggests this harassment was "open and notorious" as others at the jail saw Foti as an "accident waiting to happen." Foti also created opportunities for himself to get the female inmates alone so he could engage in the inappropriate behavior. This was not isolated behavior but severe, persistent, and pervasive, "executed in a manner that would have been difficult to conceal from supervisory personnel at the Riverhead facility, including policymakers."

Plaintiffs' case is strengthened by evidence that the Sheriff knew about Foti's sexual misconduct from the 1990s outside the jail. Off-duty conduct may be relevant in proving a Monell claim, as per Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995). Internal affairs reports from the 1990s involving jail-related sexual misconduct also support plaintiffs' claims. While some supervisors were aware of sexual harassment but not sexual assault, their knowledge of the harassment can hold the County liable for the overall sexual misconduct because even sexual harassment violates the Equal Protection Clause. These officials knew about Foti's unconstitutional misconduct, and that is enough under Monell. 

Finally, we have a statute of limitations issue. The district court rejected evidence that fell outside the three-year limitations period, but the Court of Appeals finds the older harassment constitutes the kind of continuing violation that is unique to sexual harassment claims, as the harassment as a whole was part of the overall policy and practice. We associate this principle with employment discrimination claims, but the Court of Appeals notes that it applies in other contexts as well, including land-use claims under Section 1983.

School principal is not a policymaker under Monell

A unique aspect of Section 1983 litigation is that it is almost impossible to sue a municipality for a civil rights violation. A long time ago, the Supreme Court said that towns, villages and cities cannot be sued under this statute unless the plaintiff can show the civil rights violation was caused by a municipal policy or practice. Policy and practice can be proven in a variety of ways, but that is a difficult task, so most plaintiffs simply sue the individuals who violated their rights. But the question always remains, who is a policymaker?

The case is Agosto v. New York City Dept. of Education, issued on December 4. Plaintiff is a schoolteacher who claims that management violated his rights under the First Amendment because it retaliated against him after spoke out on matters of public concern. As it happens, the Second Circuit (Menashi, Lohier and Cabranes) says that plaintiff actually did not engage in First Amendment speech because his grievance were either personal to him or did not otherwise involve matters that would concern the community. 

Many Section 1983 plaintiffs who sue school districts will argue that the principal who retaliated against them was a municipal "policymaker" because the principal had final authority over the plaintiff's employment. That argument applies the general rule that a final policymaker is the only one who can make policy for the district. The seminal Supreme Court for that principle is Monell v. Dept. of Social Services, 436 U.S. 658 (1978). As the Second Circuit puts it,

Agosto  has  apparently  settled  on  the  theory  that  Ureña’s disciplinary letters and negative evaluations were unreviewable by higher-level  officials  within the Department  of  Education, making Ureña  the  de  facto  final  municipal  policymaker  on those  specific matters involving Agosto. Even assuming that Ureña’s actions were unreviewable, Agosto’s claim  still fails because the Supreme Court has rejected the “concept of ‘de facto final policymaking authority.’”

That argument will not work, the Court says, because it it another way of imposing respondeat superior liability onto the district for the principal's actions, and Monell prohibits that theory of liability. Instead, plaintiff says that "even if Ureña were not the final municipal policymaker for teacher discipline and evaluations, he was the  final  policymaker  at  least  for  his  own  “discriminatory and harassing behavior towards Mr. Agosto.” In support of this proposition, plaintiff cites a few dozen district court rulings that "for  the  proposition  that  'a  public school  principal acts as a final  policymaker  to  the  extent  that  the ultimate  harm  that befell  the  plaintiff  was  under  the  principal’s control.'" The Court of Appeals says these cases were all wrongly decided.

by erroneously equating a principal’s final decisions with  a  municipality’s  final  policies,  those  cases  make  the  same mistake as Agosto. We do not believe that approach is consistent with Monell and accordingly decline to adopt it. Such an approach would risk imposing Monell liability for almost every action a principal takes.

The real policymaker, then is the Department of Education, not the principal. The Second Circuit had previously held as such in an unpublished summary order, Hurdle v. Board  of Education of City of New York, 113 Fed. Appx. 423 (2d Cir. 2004). Agosto's case now confirms this is the law of the Circuit. To that end, this case is an important one for civil rights plaintiffs and their lawyers who seek to prove municipal liability under Section 1983. 

You may ask, who cares about Monell liability when you can sue the individual decisionmakers? Because if the decisionmakers are entitled to qualified immunity, the municipal liability is the only way to win the case, since municipalities cannot invoke qualified immunity. Also, if you think the government employer for some reason will not cover the individual defendant's damages, then you want to sue the municipality.
 

No sexual harassment case involving lewd talk and lollipop licks

This hostile work environment case fails because the plaintiff cannot show his working conditions were severe or pervasive under Title VII to make out a true sexual harassment claim. While this is a male-on-male harassment case, that is permissible under Title VII if the plaintiff can show the workplace abuse was based on sex and was so offensive that it altered the conditions of the workplace. Plaintiff cannot prove that, and the case is dismissed.

The case is Agosto v. New York City Dept. of Educ., issued on December 4. Plaintiff was a public school teacher. He claims the school principal, Urena, would stare, sneer, cat-call and clap at plaintiff, sang lyrics from the musical Annie while staring at him and said "Hi, Mr. Agosto" in a feminine voice. This is not enough to create a hostile work environment under Title VII. This behavior would qualify as the kind of workplace annoyance that courts have in mind when they remind us that Title VII is not a "general civility code," as the Supreme Court put it more than 20 years ago.

Plaintiff cites a few other incidents to bolster his claim. For various reasons, these incidents are not enough to force defendants to trial. First, plaintiff says, Urena stood closely behind him while plaintiff was bending over. Urena did not touch plaintiff, who says this was a "simulated act of anal penetration." While the Court of Appeals (Menashi, Lohier and Cabranes) says this is a serious charge, it is contradicted by plaintiff's summary judgment affidavit, which said the sexual harassment began in January 2017; the "anal penetration" incident purportedly happened in March 2016. If your summary judgment affidavit contradicts your claim, then the affidavit will be disregarded. The Court of Appeals has been saying this for years, and it says it again. Nor was this incident cited in the complaint, and the summary judgment record does not contain deposition testimony that references this episode under oath.

The second incident that the Court of Appeals disregards was the lollipop incident. Plaintiff says the principal licked a lollipop in a manner that simulated oral sex, and that he had directed this gesture toward plaintiff. While the Court agrees this incident was "offensive and inappropriate," it does not by itself support a hostile work environment claim. The Court does recognize that a single episode can create a hostile work environment, but those cases usually involve serious episodes, like rape or physical assault. One case found a hostile work environment when the plaintiff was "covered . . . .with shaving cream" while being subjected to "racially offensive comments." Cases in this area include Ferris v. Delta Air Lines, Inc., 277 F.3d 128 (2d Cir. 2001), and Patterson v. City of Oneida, 375 F.3d 206 (2d Cir. 2004). But in Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998), there was not hostile work environment where the plaintiff's coworker made a crude comment about her physical appearance  and "deliberately touched her breasts with some papers he was holding in his hand." Plaintiff's case is closer to Quinn than to Ferris or Patterson. The principal did not touch plaintiff, and the lollipop incident did not interfere with plaintiff's ability to maintain discipline over his students or modify the terms of his employment.

Teacher's union-related grievances not protected under the First Amendment

It's been a few years since we got a comprehensive ruling from the Second Circuit on what constitutes protected speech for government employees who claim retaliation for speaking out. This case involves various categories of speech from New York City school teacher who challenged his school principal. The Court of Appeals says that none of the plaintiff's speech is First Amendment speech and that the principal was therefore allowed to take action against him. This is a tough loss for the plaintiff.

The case is Agosto v. New York City Dept. of Education, issued on December 4. Under Supreme Court case law, public employees do have speech rights, but they are only protected from retaliation if they speak on matters of public concern. Private grievances do not count. Only speech that would interest the public. That means a good deal of speech among government workers, including teachers, is not protected. 

One grievance said the principal had altered the way that teachers would be evaluated without showing the proposed changes to the union chapter as a whole in violation of the union contract. This is not free speech on a matter of public concern, the Court of Appeals (Lohier, Menashi and Cabranes) says, because the form of this speech -- internal union ad PERB grievances -- "suggests the absence of a matter of public concern" under Borough v. Duryea, Pa. v. Guarnieri, 564 U.S. 379 (2011). Plaintiff does not explain how his grievance would be of any interest to the New York City community. Another union grievance challenged the principal's refusal to give plaintiff copies of the school budgets for 2011-14, as plaintiff wanted to "know where that money went, what happened with those budgets" because a prior principal had given too much budgetary influence to an assistant principal without enough input from the union. Rather than reflect plaintiff's desire to protect the public welfare, this grievance "appears to have been prompted by his personal grievance against the school's leadership for denying input of the chapter in financial decisions relating to the school." It is therefore not free speech.

Yet another grievance accused the principal "of attempting to enlist another teacher to attend a union meeting and report back because [the principal] hoped to have Agosto replaced as the union’s chapter leader." Not only does the fact that this comprised a internal grievance suggest it is not First Amendment speech, but "Agosto’s concern appears to have been the protection of his own union leadership position rather than to address a matter of general public interest."

The final speech act involved plaintiff's grievance with PERB accusing the principal of retaliating against him for representing other teachers during union activity. But, the Court says, "Filing a grievance raising his own alleged injuries is a paradigmatic example of an action that 'principally focuses on an issue that is personal in nature and generally related to the speaker’s own situation or that is calculated to redress personal grievances' and that we have therefore held 'does not qualify for First Amendment protection” from retaliation.'" Moreover, "this court has rejected the notion that 'all activities undertaken through a union necessarily become matters of public concern merely by virtue of their collateral connection to the union,' and Agosto does not explain how his advocacy regarding other employees’ internal employment disputes would transform those disputes into matters of public concern."

For good measure, the Court says that even if plaintiff's speech were protected under the First Amendment, he would lose on qualified immunity, as the law is not clearly-established that at the time the events unfolded in this case, "our caselaw was unclear about whether filing employment grievances was an act undertaken as a private citizen, though that issue was subsequently clarified" in Lynch v. Ackley, 811 F.3d 569, 582 n.13 (2d Cir. 2016).

Charles Oakley wins appeal against Madison Square Garden

This is one of those celebrity cases that only arise in the Second Circuit, home of New York City, where famous people live and work and play and bring lawsuits against other famous people.

The case is Oakley v. Dolan, issued on November 16. Plaintiff used to play basketball for the Knicks from 1988 to 1998. Dolan is chairman of the company that owns Madison Square Garden, home of the Knicks. Plaintiff is suing Dolan for assault and battery. So what the hell happened here?

According to the complaint, in 2017, plaintiff showed up at MSG to watch a Knicks game, when within minutes of his arrival, Dolan told security to "forcibly remove" plaintiff from the building. The decision suggests that plaintiff was sitting near Dolan. I guess Barkley and Dolan do not like each other. Plaintiff says that security shoved him to the ground and instigated a physical altercation without any provocation. After security grabbed plaintiff some more, he pushed their hands away in self-defense. Security again threw plaintiff to the ground. They then escorted plaintiff out of MSG. 

The district court dismissed the assault and battery claims, finding the complaint did not allege a plausible cause of action. The trial court said, "the mere allegation that the guards subsequently grabbed him and pushed him to the ground is not enough to demonstrate unreasonable force." Also, the district court said, plaintiff did not allege the guards intended to hurt him, and he does not allege excessive force."

The Court of Appeals reinstates the claim. It looks like the trial court may have over-analyzed the complaint. Under the rules guiding motions to dismiss, there is a case here, the Second Circuit (Newman, Calabresi and Carney) says, because "when a plaintiff alleges that he was 'thrown to the ground' by actions that 'greatly exceeded the amount of force that was necessary' and 'clearly exceeded the bounds of reasonable behavior,' and that he 'has suffered and continues to suffer harm,' the reasonable inference to be drawn is that he has been subjected to an unreasonable amount of force."

Plaintiff also brings a disability discrimination and defamation claim, alleging that after this incident happened, Dolan said on the radio that plaintiff has a problem with anger, is physically and mentally abusive, may have an alcohol problem, and had arrived at the game impaired and treated MSG staff abusively. Even if these statements are false, there is no case because plaintiff is a public figure and therefore has to allege the statements were made with malice, i.e. that the speakers had recklessly disregarded they were false. Nor is there a defamation per se claim, which allows plaintiffs to win without showing actual damages as defamation per se inherently damages the victim's reputation. Defamation per se is only proven in a few ways: falsehoods that allege serious criminal conduct, falsehoods that allege a loathsome disease (usually a sexual disease of some kind), or falsehoods that impute unchastity to a woman. The statements at issue in this case involve none of these exceptions. 

The disability claim is also dismissed. Plaintiff says that defendants discriminated against him based on his perceived disability, alcoholism, plaintiff does not adequately plead that he was kicked out of MSG as a result of his perceived alcoholism, as opposed to his alleged inebriation at that time and the resulting disruption." At most, plaintiff is alleging that Dolan speculated after the fact that plaintiff had a problem with alcohol. But since the complaint alleges that Dolan said this because staff were concerned that plaintiff appeared impaired, plaintiff has not alleged that Defendants discriminated against him because they believed he was a alcoholic.

Subpoena fracas case yields one dollar in nominal damages

This case began when a sheriff's deputy showed up at someone's property to serve process. People hate it when process servers show up. This one was a subpoena for debt collection. A fracas broke out and other police showed up. The property owners brought a lawsuit for excessive force and trespass. The case went to trial and there was a mistrial. In the end, the plaintiffs end up with a dollar.

The case is Wierzbic v. Howard, a summary order issued on December 1. After trial, the jury deadlocked and a mistrial was declared. That did not prevent the trial judge from entertaining defendants' motions for judgment as a matter of law under Rule 50.

The false arrest and excessive force claims were dismissed under Rule 50. One plaintiff loses the false arrest claim because the officer had "arguable probable cause" in that he had a reasonable basis to believe the plaintiff was violating the law when he waived a pair of pliers at head level and shouted profanities at the officer and told him to get off the property. When the officer told this plaintiff to put down the pliers, the plaintiff refused to do so. That is enough to arrest someone; the officer rationally believed the plaintiff intended to place him in fear of physical injury, which violates the New York menacing law. The Court of Appeals (Parker, Chin and Stanceu [D.J.]) affirms this holding. 

The district court also granted JMOL on the excessive force claims. While the plaintiff said the officer punched him in the head, that happened after plaintiff was placed under arrest and would not drop the pliers. Plaintiff was also trying to flee. So some force was justified in effectuating the arrest. While the officer punched plaintiff in the back and in the back of the head, this was a de minimus use of force, not enough for a Section 1983 claim. The same analysis applies to the use of pepper spray to subdue plaintiff. While plaintiff claimed the officer smashed his face into the ground, such a claim would normally be sent to the jury, but not this one. The claimed injuries were not consistent with that claim because it took place on a stone driveway, but the photographs only depicted small scratches and some discoloration. There is no evidence that plaintiff went to the hospital or received treatment for his injuries.

The trespass claim is a different story. The officer would not leave the property as directed, so that constitutes a trespass. But what are the damages? Plaintiffs say the damages are the lost tomato plants they could not water that day because the officer had shown up at the property and would not leave, resulting in their arrest. But the trial judge noted that it was plaintiffs' affirmative actions that day which prevented them from watering the plants, in resisting the officer's authority. That will get you nominal damages. The Court of Appeals agrees.

Student's excessive force claim against the school is revived on appeal

It never would have occurred to me back in high school that I could actually sue the high school over anything. I did not know that students have rights and that the federal courts will sustain those rights if the kids have a case. In this case, the student sued the school over the use of excessive force by one of the security guards. 

The case is Concepcion v. New York City Dept. of Education, a summary order issued on November 30. Plaintiff brought two claims: false arrest and excessive force. It all started when plaintiff showed up to a school assembly a minute late; the teacher says plaintiff cursed at her when she asked if he was supposed to be there, but plaintiff testified that he only said, "I do belong here." When the security officer began escorting plaintiff to the dean's office, plaintiff refused and said he wanted to call his mother. The officer and plaintiff went to a stairwell to talk this over. Eventually, other security officers had to push plaintiff along because he was blocking foot traffic. On the way to the dean's office, according to plaintiff, the officers grabbed his arms. The officers say plaintiff tried to take a swing at them. When the officers grasped plaintiff's arms, everyone fell to the floor. Plaintiff says one security officer next pushed him through a doorway and threw him to the floor. Someone else put a knee to plaintiff's head to hold him down until someone handcuffed him. 

The false arrest claim (premised on the seizure) is rejected on appeal. The Second Circuit (Lohier, Park and Rakoff [D.J.]) finds there was probable cause to detain plaintiff for obstructing governmental administration, as there is no dispute that plaintiff physically restricted the security officers on the way to the dean's office. 

But the excessive force claim, dismissed on the summary judgment motion, is revived on appeal. While the district court held that plaintiff had resisted the officers' authority, that does not mean that any force was necessary. Excessive force claims require the court to consider the nature of the charge against the plaintiff and whether the necessary force turned into excessive force. The leading case on this issue is Sullivan v. Gagnier, 225 F.3d 161 (2d Cir. 2000), holding that "the fact that person whom the police attempts to arrest resists . . . no doubt justifies the office using some degree of force, but it does not give the officer license to use force without limit." The obstructing governmental administration charge was relatively minor such that any force to restrain plaintiff had to be judicious. We also consider whether the plaintiff posed a safety threat to the officers. While the officers claimed that plaintiff made a threatening gesture, plaintiff denies that and the record does not conclusively prove he did so. These issues are for the jury.

Two out of three ain't bad on inmate-plaintiff's excessive force claims

Excessive force claims are not uncommon in the prisons and jails. The question is whether anyone will believe the inmates who claim their jailers beat them up for no good reason. I've seen plaintiffs win and lose these cases, including my own clients, but you can imagine how difficult it is for an inmate to convince a jury that a correction officer broke the law in using force inside the prison walls. In this case, the plaintiff has two excessive force claims reinstated after the trial court dismissed them on summary judgment. Whether the jury will believe the plaintiff at trial is another story, but for now, plaintiff will savor this victory.

The case is Frost v. New York City Police Department, issued on November 12. This is the case that keeps on giving, as the various issues give rise to three blog entries at this link (reinstating the fabrication of evidence claim) and that link (relating to the malicious prosecution claim, which has been dismissed). The final discussion for this case involves excessive force. 

There were three incidents that give rise to plaintiff's case. First, on October 9, 2012, plaintiff says he was transported to Bronx Supreme Court for an attorney visit. Plaintiff told one of the escorting CO's, "I should spit in your fuckin' face." At deposition, plaintiff admitted that he might have said this. As an initial point, inmates who say this to law enforcement are asking for trouble. I am not suggesting they deserve to be beaten up for such a thing, but you know how the world works. In response to plaintiff's comment, the officers took him to the ground, kicked him in the ribs and dragged him by his leg shackles. Plaintiff suffered a ruptured eardrum and bruising on his forehead and cheek. While the district court dismissed this claim because the courts have rejected excessive force claims when inmates spit or threatened to spit on correction officers, this was not really a threat but a statement that plaintiff "should" spit on the officers. A minor distinction, but enough for trial. "Although  it is possible that this statement would have been interpreted as a threat, . . . it is also possible that it would have been interpreted as an insult or an expression of disdain." If the jury agrees with the latter interpretation, then plaintiff can win, as the record does not establish that he had otherwise provoked the beating. You cannot assault inmates simply because you are mad at them.

The next incident took place on January 16, 2013, when plaintiff hid something in his rear-end and would not take it out when the CO's demanded that he do so. The officers used force to get the potential contraband, and they found that plaintiff had been secreting a small weapon. Video footage of the incident shows that the officers did not use excessive force. Rather, plaintiff had resisted the officers and tried to prevent them from doing their jobs. He also struggled with the officers. The Court of Appeals finds that plaintiff cannot win this claim at trial, and it's gone, goodbye.

The third incident happened on July 16, 2013, when CO's had to extract plaintiff from a recreation yard and plaintiff had resisted their authority during that maneuver. Video footage convinces the Court of Appeals that the officers did not use excessive force in trying to do their jobs. But plaintiff can still win this claim because after plaintiff was subdued following a "vigorous" struggle, an officer struck him. One of the officers had repeatedly moved his knee toward plaintiff's head, and other inmates were yelling at the officer to stop striking plaintiff. This sounds like a close call, but the Court of Appeals thinks there is enough for plaintiff to win this claim, even if plaintiff is not the most sympathetic plaintiff in the world, having resisted the officer's authority on multiple occasions.

Supreme Court stays Cuomo's order restricting religious gatherings in New York

The other day, I wrote about a Second Circuit ruling that upheld Governor Cuomo's Covid-19 executive order limiting the size of religious gatherings, rejecting a constitutional challenge that the order violated religious freedoms. That Second Circuit ruling has now been stayed by the Supreme Court, which holds that the order likely violates the Free Exercise Clause of the First Amendment.

The case is Roman Catholic Diocese v. Cuomo, issued on November 25. While you were preparing Thanksgiving dinner, the Justices were working on this case. The Court summarizes the issue as follows:

[Plaintiffs] seek relief from an Executive Order issued by the Governor of New York that imposes very severe restrictions on attendance at religious services in areas classified as “red” or “orange” zones. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25. The two applica- tions, one filed by the Roman Catholic Diocese of Brooklyn and the other by Agudath Israel of America and affiliated entities, contend that these restrictions violate the Free Exercise Clause of the First Amendment, and they ask us to enjoin enforcement of the restrictions while they pursue appellate review. 

Citing a variety of remarks made by the Governor, Agudath Israel argues that the Governor specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included. Both the Diocese and Agudath Israel maintain that the regulations treat houses of worship much more harshly than comparable secular facilities. And they tell us without contradiction that they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.

To win an injunction in the Supreme Court, you have to show (1) you will likely win the case and (2) without the injunction, you will suffer irreparable harm that cannot be undone even if you ultimately win the case a year from now. Injunctions are not easy to win, as you are asking the court to declare preliminary victory at the outset of the case. 

By a 5-4 margin, the Supreme Court says the religious plaintiffs are likely to win the case. The Justices say the executive order singles out houses of worship "for especially harsh treatment." How so?

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.

When the government singles out religion in issuing regulations, it must show these restrictions are necessary to satisfy a "compelling" interest and that they are narrowly-tailored. That did not happen here, the Court says. 

Stemming the spread of COVID–19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as “narrowly tailored.” They are far more restrictive than any COVID–related regulations that have previously come be- fore the Court, much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.

Since the denial of constitutional rights even for a limited period of time creates irreparable harm, the religious plaintiffs easily satisfy that standard as well. 

The Court sums up this way:

Members of this Court are not public health experts, and we should respect the judgment of those with special exper- tise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.

The four dissenters include the liberal Justices (Sotomayor, Kagan, and Breyer) and Chief Justice Roberts, who write that since the Governor has since revised the regulations, this case is moot. The majority says the case is not really moot because the restrictions could resurface at a later date. On the substantive issue, Justice Sotomayor writes that there really is no discrimination on the basis of religion because the executive order treats everyone the same when it comes to public gatherings, where large groups of people are more likely to infect each other. That is different from more generous rules guiding retail establishments, which do not typically attract large groups of people.

New York applies “[s]imilar or more severe restrictions . . . to comparable secular gatherings, including lectures, con- certs, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” Likewise, New York “treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.” That should be enough to decide this case.

    . . .  

Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today. The Constitution does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives. 

The newest Justice, Amy Coney Barrett, voted with the majority. Since Justice Barrett replaced Justice Ginsburg, who probably would have voted the other way on this issue, this final Trump appointment to the Supreme Court is already having consequences for constitutional law. 

I was telling someone the other day that constitutional law is interesting because every case is a puzzle, and there are technically no right or wrong answers in that way that math may only have one right answer to a problem. Constitutional law is in the eye of the beholder. The Free Exercise Clause on its own terms says nothing about how courts should interpret and enforce it. We leave that to judges. In any 5-4 ruling, both sides may have a good point. But five votes wins and four votes loses. Had this case arisen a year ago, the religious plaintiffs would have lost. Had Justice Ginsburg lived, same result. 

Every few years, the Court seems to adopt a legal issue that predominates its rulings. In the 1950s and 1960s, it was school segregation and the rights of criminal defendants. During the Vietnam War years, we have First Amendment cases involving the rights of antiwar protesters. In the 1970s, we had a series of due process cases that rewrote the standard for general governmental fairness in decision making. And so on. The current Supreme Court is on a mission to strengthen religious freedoms under the Constitution. This case highlights that trend.

 

Court upholds Cuomo's executive order on Covid-19 restrictions

We are slowly but surely developing a body of case law on rights and responsibilities arising from the Covid-19 pandemic. When the government began limiting public behavior in Spring 2020, I wondered if anyone would sue over these measures that would clearly be unconstitutional in the absence of a serious public health emergency. People have sued, and these cases are now wending their way through the courts. In this case, the Second Circuit finds that Gov. Cuomo had lawfully restricted public assemblies, rejecting the religious freedom objections raised by the plaintiffs. 

The case is Agudath Israel of America v. Cuomo, issued on November 9. The Governor issued a "red zone" for certain high-infection neighborhoods in New York City, prohibiting non-essential gatherings of any kind, closing non-essential businesses, prohibiting restaurants from seating customers, and preventing houses of worship from hosting more than 10 people or more than 25 percent of their maximum capacity, whichever number is lower. 

The courts do not seem to squarely resolve a threshold issue: whether the government has any authority to impose restrictions like this at all. At this point, we are just assume the Governor can impose restrictions on public behavior. The Court in this case starts off with grim statistics about the death toll caused by Covid-19. These are not ordinary times, when even a slight speech restriction can result in liability against the government. Now the government is able to impose serious public assembly restrictions that would never survive constitutional scrutiny in normal times.

Plaintiffs argue that the religious components of the Executive Order violate the Free Exercise Clause of the First Amendment. That's the freedom-of-religion clause. Plaintiffs are bringing the hail-Mary of legal arguments: an immediate injunction against this order, prior to trial. To win such an injunction, the plaintiff has to show it will likely win the case, will suffer irreparable harm without the injunction, and that the public interest favors its position. Plaintiffs cannot satisfy that high burden.

Governmental rules or laws violate the Free Exercise Clause when they single out a religion and treat that religion unequally from secular entities and people. In 1990, the Supreme Court said these rules do not discriminate against religion so long as these rules apply to everyone. The Court of Appeals (Lohier, Rakoff [D.J.]) rules against the religious plaintiffs because, while the Executive Order does impact these houses of worship, they are not being singled out by the Order. The color-coded zones that Gov Cuomo created depend on the severity of the infection rates in those neighborhoods. "Within each zone, the order subjects the religious services to restrictions that are similar to or, indeed, less severe than those imposed on comparable secular gatherings." The Circuit court cites a recent Supreme Court and Seventh Circuit case to support its holding, recognizing that a body of Covid-19 case law is starting to develop.

Judge Park dissents, demonstrating these are still difficult issues. The dissent looks at the record differently than the majority, writing that, within the same zones, houses of worship are subject to more strict restrictions than certain "essential" businesses, some of which have no restrictions. Judge Park adds, "the executive order does not impose neutral public health guidelines, like requiring masks and distancing or limiting capacity by space or time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retain stores, and construction) for favorable treatment, calling them 'essential,' while imposing greater restrictions on 'non-essential' activities and religious worship.'" This seems to be the key distraction between the majority and dissenting opinion. While the majority says the distinction between essential and non-essential was based on epidemiological evidence, Judge Park disagrees, stating there is no data or scientific study in the record, only observations by public health officials.

No malicious prosecution claim for plaintiff who was acquitted in murder case

Malicious prosecution claims are hard to win because, in addition to showing the criminal proceeding terminated in your favor (and an ACD does not count), the plaintiff has to prove the officers proceeded with the prosecution maliciously and there was no probable cause to justify the proceeding. That last element is what dooms this claim.

The case is Frost v. New York City Police Dept., issued on November 12. I wrote about Frost in a different context, at this link, where the Court of Appeals held that the plaintiff was able to proceed with his fabricated evidence claim against the police after proffering evidence that the police coerced an "eyewitness" to claim that plaintiff was involved in a murder for which plaintiff was ultimately acquitted at trial.

That acquittal was a great victory for plaintiff, but that does not mean he can sue the officers who arrested him. Acquittal at trial is an important first step in going after the police, but acquittal does not necessarily mean the police lacked probable cause. This reality is confusing for clients, many of who assume that they can seek money damages after the police put them through the wringer in arresting them in the first place. The problem with that logic is that the case law allows the police off the hook if there was probable cause to arrest, even if the guy was ultimately proven not guilty.

Probable cause exists when the police have information that "would lead a reasonable person to believe the plaintiff is guilty." The Second Circuit (Katzmann, Kearse and Bianco) finds the police had probable cause because they saw surveillance video depicting plaintiff and someone else walking down and then running up a stairwell from which the victim was shot, immediately after the victim was shot. The other guy identified plaintiff as the shooter. The police also believed plaintiff had a motive to shoot the victim, because the victim's friends had assaulted plaintiff the night before. This supports probable cause as a matter of law; there is no reason to bring this issue before a jury. 

While plaintiff says probable cause cannot exist merely because he was near the scene of a crime and a fellow suspect had identified him as the culprit, cases in this Circuit already hold that "an individual's presence in the location from which shots are fired can support a finding of probable cause. The cases cited in support of this proposition are unpublished Second Circuit rulings. While citation to cases like that are frowned upon in the Second Circuit, they can still provide guidance on the issues if they are close enough to the case at hand. To the extent that no published case has supported probable cause on facts like this, then this case provides the precedent once and for all.

Fabrication of evidence claim is revived on appeal

The Court of Appeals has reinstated a claim alleging that the police has manufactured evidence against a criminal defendant in the course of a murder investigation. The Second Circuit clarifies that evidence fabrication claims in this jurisdiction will continue to be analyzed as due process violations, notwithstanding a recent Supreme Court ruling that the dissenting judge believed changes the legal standard.

The case is Frost v. New York City Police Dept., issued on November 12. While investigating a murder in the Bronx, police investigators found two witnesses who had implicated plaintiff. But plaintiff alleges that the police had coerced one of these witnesses, Vega, into implicating him. After plaintiff was acquitted at trial, he sued the officers for evidence fabrication, a claim grounded in the due process clause, as the Court of Appeals has held since at least 1997, when it issued Riccuiti v. N.Y.C. Transit Auth., 124 F.3d 123 (2d Cir. 1997). While the police argued that they had an evidentiary basis to prosecute plaintiff even without Vega's coerced statement, the Court of Appeals (Katzmann and Bianco) says that "probable cause is not a defense to a fair trial claim based on the fabrication of evidence" and that "even if a privileged arrest accounted for at least some portion of the deprivation of a Section 1983 plaintiff's liberty, a plaintiff may still suffer a deprivation of liberty as a result of an officer's fabrication." It is therefore irrelevant that "there was sufficient evidence to prosecute Frost without Vega's identification."

While Judge Kearse in dissent states that the coerced identification did not taint the trial, since Vega did not testify at trial, that does not matter, the majority says, because "a criminal defendant's right to a fair trial protects more than the fairness of the trial itself. Indeed, a criminal defendant can bring a fair trial claim even when no trial occurs at all." What matters is that the tainted evidence "would be likely to influence a jury's decision, were that evidence presented to the jury."

The monkey wrench in this case is a 2017 Supreme Court ruling, Manuel v. City of Joliet, 137 S.Ct. 911 (2017), that says a Section 1983 plaintiff can challenge his pretrial detention based on fabricated evidence under the Fourth Amendment even if a judge determines this evidence constitutes probable cause. The argument is that if this is a Fourth Amendment claim, the Fourteenth Amendment due process analysis does not apply, which could lead to a different result in the civil action. The City has been arguing in other cases that Manuel makes it easier to dismiss these cases, including a case that I am handling. But, the majority says, "our precedents establish that a fair trial claim under the Due Process Clause may accrue before the trial itself," which means that Manuel does not preclude this claim. 

Did he jump or was he pushed? Is this issue for a jury?

This is an interesting case about employment discrimination law and summary judgment. I argued the appeal, in which the Second Circuit holds the plaintiff did not present enough evidence that he was fired from his job.

The case is Ware v. L-3 Vertex Aerospace, a summary order issued on November 5. To make out a prima facie case of retaliation under Title VII, the plaintiff must show he was subjected to an adverse employment action, usually a termination or demotion. When they have lost their job, Plaintiffs will lose on this element of the claim when they argue they were constructive discharged, a difficult burden because the plaintiff must prove his job conditions were so bad that a reasonable person would have been compelled to resign. Prior to this one, I have not yet seen a case where the Court said the plaintiff was unable to prove that he was fired.

After plaintiff spoke out against racial discrimination in the workplace, he got on the phone with a supervisor, who had been one of the targets of plaintiff's complaints. When the call ended, plaintiff was out of a job. The question is how his job ended. The supervisor testified that plaintiff resigned his position. Plaintiff said at deposition and in his summary judgment affidavit that he never resigned. But he never affirmatively testified that he was fired, as in, "I was told my services were no longer needed," or that "I was fired." Should a jury decide if plaintiff was fired? The Court of Appeals (Lynch, Parker and Livingston) says this issue is not suitable for trial. Here is how the Court resolves this issue:

Ware contends that a material issue of fact exists as to whether Jardee terminated his employment during this conversation or whether Ware resigned. He asserted at his deposition that he “thought [he] was terminated” by Jardee and that he “never resigned.” But he also testified that he was “honestly . . . not sure” how his employment ended. Id. Apart from his own equivocal statements during his deposition, there is no other evidence that Ware was terminated. 

After their phone call, Jardee emailed, “Roy, Per our recent telephone conversation on December 22 we accept your resignation of employment effective immediately.” The subject line of the email was “Resignation.” Ware replied, “Yes you will here [sic] from my lawyer soon Todd for your discrimanation [sic] and unethical treatment towards me as a L-3 employee.” Although Ware argues now that he did not understand at the time that he was saying “yes” in response to an email stating that he resigned, such testimony is, absent any other support in the record, self-serving and inconsistent with the evidence. See Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 22 (2d Cir. 2014) (citing Jeffreys v. City of New York, 426 F.3d 549, 555 n.2 (2d Cir. 2005)).

The email evidence is interesting because I argued the "yes" was the equivalent of a verbal tick where you say something without really meaning it, as in normal conversation, and that it cannot by itself foreclose a trial or that he was conceding that he had resigned. The Court of Appeals disagreed, further noting that right after the call, the supervisor told others in management that plaintiff had resigned his position.

Courthouse argument leads to misdemeanor conviction

Mens rea is a Latin phrase that normally arises in criminal cases. It means the defendant's mental state contributed to the criminal or unlawful conduct. In this case, the Court of Appeals explores mens rea in a case where a woman showed up to the federal courthouse in Binghamton looking for a fight. She got one, and she got convicted.

The case is United States v. Wasylyshyn, issued on November 3. Defendant showed up at the courthouse, which also houses the IRS, claiming she wanted to visit that agency. The guards told her she needed to make an appointment. She said she only wanted to pick up some tax forms. The guards told her "this is how it is done." Next thing you know, an argument broke out. Defendant said she was a doctor and that the guards were public servants who paid her salaries (public officials hate when you say this). The shouting got loud. In the end, defendant was charged with disorderly conduct in violation of federal noise regulations. The U.S. Magistrate Judge tried the case without a jury and ruled against defendant, who challenges her conviction on appeal.

The appellate argument is that the federal regulation does not articulate a mens rea element and that she did not have the mens rea for the violation because she did not know her conduct was wrongful. This is an interesting argument, but the Court of Appeals (Carney, Livingston and Berman [D.J.]) rejects it. Criminal statutes are presumed to contain a mens rea element. "We apply a canon of statutory interpretation to read criminal statutes that are silent or ambiguous as to the required standard of mens rea[] to demand knowledge of enough facts to distinguish conduct that is likely culpable from conduct that is entirely innocent.”

The Court reads into the federal regulation "only a general intent requirement, i.e., that the defendant possessed knowledge with respect to the actus reus of the crime." Actus reus is another Latin phrase, sort of the brother of mens rea, which means the defendant committed the act that leads to the criminal violation. Under this principle, the court will "focus on 'knowledge of wrongdoing,' which, we have explained, 'requires knowledge only of facts that in a reasonable person would create an expectation that his conduct was likely subject to strict regulation.'”

The Court finds that defendant must have known she was doing wrong when she raised her voice at the courthouse. The Court puts it this way:

Courthouses are formal spaces where solemn government business takes place; a reasonable person would understand that shouting at security officers in a courthouse is a “non-innocent act,” likely subject to some form of regulation. Hence, a general intent requirement suffices to distinguish “likely culpable” from “entirely innocent” conduct. To convict Wasylyshyn of violating the Noise Regulation, the government had to prove that she had knowledge she was creating a “loud or unusual noise or a nuisance” on federal property, 41 C.F.R. § 102-74.390(a), not that she knew of a specific regulation proscribing her conduct.

Since the trial judge created the security officers' testimony that defendant was shouting at them and her voice could be heard 40 to 45 feet away, and she did not stop shouting after they told her to calm down, the court was able to find that she knowingly created a loud noise or a nuisance.

By the way, it took over a year for the Court of Appeals to resolve this appeal, as it raised complicated issues, including the mens rea question. All to address a misdemeanor conviction that carried a $50 fine and $30 processing fee. There was no jail time.

 

Court upholds criminal verdict against correction officers who assaulted inmate

It is illegal for law enforcement to beat up inmates, but they are not frequently prosecuted for it. But in this case, the Southern District of New York went after Fishkill Correctional Facility officers for conspiracy to violate the inmate's civil rights. The jury found against the officers, and the Court of Appeals upholds the verdict. 

The case is United States v. Scott, issued on November 5. Viewing the evidence from the inmate's perspective, the jury was able to find that, following a dispute over whether the inmate should be taken to the Forensic Diagnostic Unit, a CO punched inmate Moore in the chest. Someone else grabbed him from behind and pulled him to the ground, where other CO's held him down and beat him up for two to four minutes with his face to the ground. Someone pulled the inmate's hair out and kneed him in the abdomen. While the inmate did not fight back, a CO placed him in a leg hold to prevent him from defending himself. Someone kicked him in the eye, and he was kicked while he was in handcuffs. A supervisory officer was present but did not order the CO's to stop the attack. The inmate suffered serious physical injuries and spent time in two different hospitals. There was also evidence of a cover-up among the defendant officers, who altered their reports of the incident.

The Court of Appeals (Sullivan, Kearse and Park) affirms the jury's verdict that the officers had conspired to assault the inmate for no good reason. The defendants said there could not have been any conspiracy to violate the inmate's rights because the situation unfolded too rapidly for the to reach an agreement. The Court is not buying this, holding that there need not be "an extended period of premeditation or a distinct verbal agreement prior to the impetus of the assault. . . . While not every group beating is per se a conspiracy, the record here demonstrates that Defendants entered into a tacit agreement to violate Moore's civil rights." Here is the analysis (Santiago, Scott, and Lowery are the CO's):

Although Morris’s initial punch may have been spontaneous, the evidence at trial revealed that the other officers acted in concert and purposefully joined the assault. Santiago quickly grabbed Moore from behind to force him to the ground. Scott then ordered two probationary officers removed from the area, which the jury could reasonably infer reflected an approval of what followed and a conscious intent to reduce the number of witnesses as it continued. Scott and Lowery worked together to restrain Moore, with Scott pulling Moore’s arm behind his back and handcuffing his right wrist while Lowery, at Scott’s command, applied a figure- four leg hold that restricted Moore’s ability to protect himself. Santiago, leveraging the restraint provided by Lowery and Scott, continued to physically beat Moore. Although no one action on its own is necessarily sufficient, the evidence here demonstrates that the group consciously colluded for at least a couple minutes to deprive Moore of his civil rights and that Scott used her supervisory authority to facilitate that assault.

Put down your food when you read this blog entry

The Supreme Court has ruled that an inmate who was living in horrendous prison conditions can proceed with his lawsuit, and that the defendants cannot invoke qualified immunity, as the law is clearly established that the Eighth Amendment prohibits these conditions.

The case is Taylor v. Riojas, issued on November 2 without oral argument. The Court hands down rulings without oral argument when it thinks the issue is clear-cut. What makes this decision notable is that the Court almost always finds qualified immunity in civil rights cases against law enforcement. This case is the rare exception.

Qualified immunity allows municipal defendants off the hook from liability when the case law was not clearly-established at the time of the violation. So the constitutional clam may be legitimate, but if the cases did not already squarely point in that direction, then the defendants get the benefit of the doubt and are therefore immune from liability. This only applies in civil rights lawsuits against public officials.

Here, the inmate alleges that, for six days, he was "confined . . . in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in 'massive amounts of feces': all over the floor, the ceiling, the window, the walls and even 'packed inside the water faucet.'" Fearing contamination, the plaintiff did not eat or drink for nearly four days. Then he was sent to a freezing cold cell, which had a clogged drain in the floor to dispose of bodily wastes. Plaintiff did not urinate for over 24 hours. When he did relieve himself, it caused the drain to overflow and raw sewage to spill across the floor. Since he was confined without clothing and the cell had no bunk, plaintiff "was left to sleep naked in sewage." I hope you are not eating while reading this.

The Fifth Circuit said these conditions violate the Eighth Amendment but that case law in that circuit did not clearly show this was a constitutional violation. The Supreme Court reverses and said that the prison official who were responsible for these conditions can be held liable. Other than Hope v. Pelzer, 536 U.S. 730 (2002), the Supreme Court does not cite any case law for the proposition that these conditions were illegal, a rare omission in a qualified immunity case. Hope may have been the last time the Court rejected qualified immunity in a civil rights case. The Court does say, "no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time."

Justice Thomas dissented without comment. Justice Alito concurred but said the Court shouldn't have taken the case in the first instance because the Court was only correcting the Fifth Circuit's misapplication of the law; the Court normally takes cases that highlight a split among the circuits about legal standards. 

College student loses classroom speech case

Its' been a while since the Second Circuit has issued a precedential student speech case. In this case, the Court of Appeals holds that a college student cannot sue his teacher who censored his speech on a school assignment.

The case is Collins v. Putt, issued on October 9. Collins took a Communications 101 virtual class in which the students had to comment on a video that depicted a young man conversing with and assisting an elderly disabled person. In evaluating the video, Collins responded with a blog post that critiqued the assignment and said the video was "excruciating awkward," "ridiculous," and depicted "two complete idiots having a conversation that could only take place in an alternative reality on a planet far, far away." He also said the older character in the video was "cranky," "self-pitying," "angry," and engaged in "miserable griping." The teacher removed the blog post and said that some might find it offensive.

Student speech cases are evaluated under different legal standards, depending on the context. In Tinker v. Des Moines Indep. Sch. Dist. (1969), the Supreme Court said school administrators cannot restrict speech unless it materially disrupts the educationally environment. Since that case involved students silently wearing anti-war armbands, the kids won the case. But in Hazelwood Sch. Dist. v. Kuhlmeier (1988), the Court said that school-sponsored speech may be regulated if the restriction is reasonably related to legitimate pedagogical concerns. This is a much more difficult burden for plaintiffs to satisfy, and the Hazelwood plaintiffs lost because it involved censorship of the high school newspaper.

The Second Circuit (Lohier and Raggi) says this is a Hazelwood case because Collins' speech arose in a school-sponsored forum, a blog devoted to classroom assignments. It was not merely personal expression that arose in the school environment, taking the Tinker standard out of the case.

In partial dissent, Judge Menashi says this speech restriction violated the First Amendment because it constituted viewpoint discrimination. Under the pro-school district Hazelwood standard, while administrators can restrict the content of speech, they cannot restrict viewpoint expression. There is a difference between content and viewpoint restrictions. Judge Menashi says the professor restricted Collins' viewpoint because the class assignment examined student perceptions, and the teacher deleted the blog post because people might find it offensive, which makes it a viewpoint restriction. The Menashi opinion is probably the longest discussion on viewpoint discrimination I've seen in the Second Circuit. But he also holds that the teacher would still be entitled to qualified immunity since the law was not clearly established at the time that speech restrictions involving an in-class audience cannot be censored. "A professor might have reasonably believed that online posts were a continuation of classroom lectures and discussion that the professor could regulate more than student expression in a more traditional forum in which speech is directed to an outside audience." So even under Judge Menashi's concurrence, Collins would have lost on this basis.