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.

Court of Appeals rejects disparate impact pregnancy discrimination claim

The Court of Appeals has ruled that a trial court was able to rule against a woman who claimed that a county jail's light duty policy had a disparate impact against pregnant women, even though the policy only allowed CO's with job-related injuries to take light-duty assignments, requiring pregnant women who did not want to risk injury to miss work and forfeit pay.

The case is Legg v. County of Ulster, a summary order issued on October 29. I tried the case and argued the appeal. This was a bench trial. Plaintiff said the light-duty rule discriminated against women because, unlike men who suffered work-related injuries, they were not able to take light duty if they feared suffering an injury resulting from their pregnancy. As you may have heard, only women can get pregnant; that's the gender connection here. Her fears were borne out: late in her pregnancy, Legg came close to serious injury when an inmate fight broke out, requiring her to miss work under the policy. Following that event, Legg did miss work, as the injury caused her significant stress and she was close to term.

When Legg first sought light-duty under the policy, she handed in a doctor's note that said she should not have direct contact with inmates. The Sheriff told Legg that the light-duty policy did not apply because she did not have a work-related injury. So two days later, Legg came in with a new doctor's note that said she could work. She argued at trial that the second note was written up because she could not afford to miss work. The trial court, however, credited the second note but discounted the relevance of the first note because the second note said she could work without restrictions. On that basis, the case was dismissed.

Legg appeals from that ruling. It is difficult to appeal from a bench verdict that turns on disputed facts. Legg argued that the trial court got it wrong because the second note that cleared her to work was written solely out of financial need, not because her health concerns had dissipated overnight. The Court of Appeals rejects that argument under the theory that the trial court's factual findings are entitled to great deference on appeal. The Court of Appeals (Lynch, Carney and Hall) rules that the Pregnancy Discrimination Act requires plaintiffs to show that "some pregnancy women are similar in their ability or inability to work" to non-pregnant employees, and that plaintiffs cannot win simply by requesting that the district court "assume that pregnant women are inherently incapable of full duty. While the conflicting doctor's notes are susceptible to different interpretations, the appellate court does not think the trial court's view of the evidence was clearly erroneous, the heightened standard in challenging a trial court's factual findings. The Second Circuit further notes that the doctor's notes in this case were conclusory and did not provide enough information to support his medical recommendations.

The Second Circuit notes that the district court overlooked some evidence, including the fact that Legg had again requested a light-duty position later on in her pregnancy, and that she did suffer a serious health-related condition as a result of working closely with inmates late in her pregnancy, when the fight broke out. Still, the Second Circuit holds, plaintiff cannot overcome the trial court's ultimate factual findings on whether she suffered disparate impact discrimination. The Court of Appeals does note that plaintiffs in these cases are not required to show that policies like this have a statistically significant impact on women, an impossible burden in cases like this were few women worked as correction officers at the jail. In the end, while the Court of Appeals is sympathetic to Legg's Hobson's choice between working at full pay and missing work to protect her baby at reduced pay, "we are compelled to conclude that the district court did not clearly err in finding that the evidence presented by Legg was insufficient to sustain her claim."

When can you appeal from a judgment after taking remittitur on a different claim?

In this blog post, I discussed a thorny procedural issue: when does a party waive her objection to an untimely post-trial motion? That issue arose in a sexual harassment case that I argued, which the Court of Appeals resolved on October 29. The other complex procedural issue in this case is discussed below. That two procedural issues of first impression would arise in the same case makes this a Moore's Federal Practice bonanza.

The case is Legg v. County of Ulster. Here is what happened: co-plaintiff Watson won her sexual harassment claims brought under Title VII and Section 1983. Most people associate such harassment claims with Title VII, which requires that the plaintiff prove the abuse was severe or pervasive and altered the work environment for the worse. But if the plaintiff works for the government, as Watson did, she can also sue under Section 1983, which enforces the equal protection clause of the Constitution, except that to sue a municipality you have to show the harassment was sufficiently pervasive that county policymakers acquiesced in the harassment, a difficult legal burden. Still, Watson won both claims, winning $200,000 on  the Title VII claim and $200,000 on the Section 1983 claim.

The County next filed post-trial motions challenging the verdicts under Title VII and Section 1983. The trial court sustained the verdict under Title VII but said there was not enough evidence of municipal liability to support the Section 1983 claim. This means the Section 1983 verdict was vacated. While the Title VII verdict survived, however, the district court reduced the Title VII damages award from $200,000 to $75,000. That reduction is called a remittitur, which means the plaintiff has two choices: either accept the $75,000 or demand a new trial on damages. The problem with a new trial is that the remitted amount (in this case, $75,000) represents what the trial court thinks is the outer limits of what a jury could award the plaintiff in a case like this. So a new trial on damages is usually not worth the effort; if you get another $200,000 verdict, the trial court will probably reduce it again to $75,000. Watson accepted the $75,000 damages award, thereby ending the Title VII claim. If a plaintiff accepts the remittitur, she cannot appeal from the trial court's ruling that the case is only worth $75,000. The only way to take up that appeal is to have the second trial on damages and, when that trial is over, appeal from the remittitur ruling. Again, few parties actually do this, so accepting the remittitur forfeits any appeal from the remittitur ruling.

While Watson voluntarily ended the Title VII case by accepting the $75,000, she wanted to appeal from the district court's adverse ruling on the Section 1983 claim. After all, that verdict was worth $200,000. But remember the rule that you cannot appeal from a trial court's remittitur claim. Does that rule mean that you cannot appeal from the dismissal of a second claim that the trial court had dismissed on the merits? Considering how many trials we've had over the years where trial courts issue split rulings like this, you'd think this issue would have arisen more frequently than it has. It has not. There was no case law in the Second Circuit on the issue of what claims are waived when the plaintiff accepts a remittitur on one claim in particular. This case provides that guidance. Here is what the Second Circuit does on this issue:

While the county argued that "Watson is foreclosed from appealing any portion of the judgment by accepting the district court's remittitur of her Title VII award," the Second Circuit (Carney, Hall and Lynch) won't go that far. The few Circuits that have taken up this issue already have held that "accepting remittitur on one claim does not bar a plaintiff from appealing claims that are 'separate and distinct'" from the claim from which the remittitur arose. Since Watson had to prove different elements to prove her Title VII and Section 1983 claims, in that the Section 1983 claim required evidence that the sexual harassment was "official policy of the municipality," the claims are separate and distinct. Watson benefits from this rule because the Court of Appeals went onto reinstate the Section 1983 verdict that the district court had dismissed on the merits. 

When does a party waive her objection to an untimely Rule 50/59 motion?

It took the Court of Appeals two years to decide this Title VII sexual harassment claim. One reason for that may have been the threshold procedural questions that the Court had to resolve before it reached the merits of the appeal. These procedural issues may be snoozeville for some readers, but they are important for federal practitioners.

The case is Legg v. County of Ulster, issued on October 29. I argued this appeal in September 2018. It was a different world. There was no pandemic, the mid-term elections hadn't happened yet, and oral argument day was the same day that the Senate took up the Brett Kavanaugh case. That was two Supreme Court appointments ago.

I will discuss issue number 1 in this blog post. The second issue will arrive tomorrow. Issue number 1 is: when does a party waive her objection to her opponent's failure to comply with the 28-day deadline to file post-trial motions? It's not like I am trying to persuade you to continue reading, but while this issue is a little dry, this really is an important issue if you try cases in federal court. Once the jury enters a verdict and the trial court issues a judgment, if the losing party wants to file a motion to vacate the verdict outright under Rule 50 or demand a new trial under Rule 59, he has to file that motion in 28 days. In 2016, when this case first reached the Second Circuit, the Court of Appeals said for the first time that the 28-day deadline is not jurisdictional but a claim-processing rule that still must be followed. Jurisdiction deadlines (those which are created by Congress) cannot be waived. Claim-processing deadlines (those which are created by the courts) can be waived. But if the moving party files the motion too late, the deadline is not self-enforcing. The trial court can deny the motion as untimely if the other party objects to his adversary's untimely filing. But that objection can be waived if you don't raise it in time. In that decision, reported at 820 F.3d 67 (2d Cir. 2020), the Court of Appeals remanded this case to the Northern District of New York to determine if the plaintiff had waived her objection to the County's untimely post-trial motion to vacate the favorable sexual harassment verdict.

This issue arose because, when the jury entered its verdict in August 2014, before the parties left the courtroom, the judge discussed the schedule for post-trial motions. The court gave the county's attorney two weeks after receipt of the trial transcript to file the motion. Plaintiff's counsel was OK with that schedule. No one objected. On its face, that schedule did not violate the 28-day rule, since the transcripts could have arrived within 28 days. But they did not; they arrived after the 28-day deadline had expired. When the County filed its post-trial motions under Rules 50/59, the trial court denied them right away, holding that they were untimely and the deadline was a jurisdictional rule that could not be extended even if the judge had proposed the extension and no one had objected. That was the rule at the time in the Second Circuit. The County appealed from that ruling and, in the 2016 decision, the Second Circuit said this is actually not a jurisdictional rule and that plaintiff's counsel may have waived the objection to the untimely deadline. On remand, the district court said that plaintiff's counsel had constructively waived that objection by remaining silent when the trial judge set forth the schedule.

The Second Circuit (Hall, Carney and Lynch) writes, "we now clarify the circumstances under which a litigant may fairly be deemed to have forfeited such an objection to timeliness." It rules that plaintiff's counsel forfeited the objection. "When a district court grants such an extension and a party has an opportunity to objected contemporaneously with the extension's grant, a party forfeits any objection to the timeliness of the motions by failing to do so at the time." This is so even if the court proposes the extension, or whether the opposing party requested it. The Second Circuit declines to follow the rule set out in Dill v. General American Life Ins., 525 F.3d 612 (8th Cir. 2008), which holds that the nonmoving party's objection is not untimely when he asserts it before the district court issues a ruling on the merits. Under Dill, you can make the objection in your brief in opposition to to the untimely post-trial motion, which is what the plaintiff did in Legg v. County of Ulster. While the plaintiff in Legg may not have knowingly waived her right to make a timeliness objection, since there was no way of knowing when the transcripts would arrive, the Court of Appeals still finds that plaintiff waived her right to object.

Even if plaintiff waived her objection, however, it did not affect the merits of the County's sexual harassment appeal, as the Second Circuit holds that the jury had a basis to find in plaintiff's favor on that claim. That's the same result as if the Court of Appeals had ruled the post-trial motion was untimely and therefore a nullity. What the waiver did accomplish was allow the trial court to reduce the damages award from $200,000 to $75,000 for pain and suffering. I discuss all of that in this blog post.