New police misconduct trial for Occupy Wall Street protester

Occupy Wall Street cases continue to work their way through the courts. In this case, the plaintiff sued the police over assault and battery arising from an Occupy anniversary get-together in 2012. The case went to trial, and plaintiff lost. The Court of Appeals revives her case because the trial court did not properly instruct the jury on the elements of her claim.

The case is Tardif v. City of New York, issued on March 18. I wrote about the disability discrimination portion of the case at this link. Tardif lost the ADA  battle, but she also claims that officers shoved her and caused her head to strike the pavement, causing her to lose consciousness and sustain a concussion. Plaintiff claims this assault was not justified. The police claimed they were trying to prevent the situation from further escalating and they grabbed her and pulled her over to the side to prevent her from running into another officer. This is a classic fact dispute in most police misconduct cases, to be resoled by a jury. That is what happened here, but there will have to be a new trial.

The best way to appeal from an adverse jury verdict is to challenge the jury instructions. The trial court has no discretion to charge the jury properly. Either it's done right or it's done wrong. In contrast, you can't appeal on the basis that the jury improperly weighed the evidence. 

The trial court charged the jury that it "may consider the need for the application of force, the relationship between the need and the amount of force that was used, the extent of any injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline, or maliciously for the very purpose of causing harm." During the deliberations, the jury asked the court to clarify the instructions. The court again told the jury that it should consider, among other things, whether the officer used force "in a good faith effort to maintain or restore discipline, or maliciously for the very purpose of causing harm." 

Under the law, the jury is only supposed to examine the officers' actions through an objective standard, i.e., whether the officer acted reasonably under the circumstances. Cases have held that the officer's subjective intent is not relevant to this analysis. So even if the officer acted maliciously, if a good officer would have used the same amount of force, then there is no excessive force claim. An officer's motives simply do not count. The Court of Appeals (Bianco, Livingston and Parker) says the jury instruction in this case, to the extent it asked the jury to consider whether the officer acted maliciously or in good faith as a means to maintain or restore discipline, was wrong. Since the error was not harmless in that the proper instruction could have yielded a favorable verdict for plaintiff, we got ourselves a new trial.

Appellate Division upholds recent vaccination requirements

In June 2019, the State Legislature revised the vaccination rules for measles following an outbreak in Rockland County. The new law eliminated the religious exception for these vaccinations, sparking protests statewide among parents who do not want this immunization for their children. Since public schools may reject students who are not vaccinated, the new law created an urgency for these parents, who cited their religious objections to the vaccination requirements. Litigation followed. The lower courts have ruled against the parents, and now the Appellate Division has rejected those challenges as well.

The case is F.F. v. State of New York, a Third Department ruling issued on March 18. This constitutional challenge stems from the parents' rights under the Free Exercise Clause, which protects religious freedom. As a preliminary matter, the Third Department determines that since the legislative revisions apply to everyone, and not just parents with religious objections, the standard of review is whether the the law has a rational basis, a legal term of art that means any justification that the legislature could have relied upon in passing the law. Rational basis review is the death knell for constitutional challenges, as courts will always find a reason why a legislative body passed a particular law.

The Third Department says the law was motivated by important health concerns: that under mass immunization, we will have nearly 100% immunity against measles, and that the legislature was entitled to rely on medical and scientific experts for this judgment. 

Plaintiffs' primary claim is that the law was not rational because it was motivated by anti-religious hostility. The Supreme Court recognized such an argument in the Masterpiece Cakeshop case from 2018, where they ruled that a state administrative agency ruled against an anti-gay baker because the agency demonstrated hostility toward religious beliefs. But that case does not apply here, the Third Department says, because the 11 floor statements that plaintiffs claim demonstrate religious hostility are simply not enough to win. Not only were the statement made by only five of the more than 200 legislators who voted on the bill, but "many of the statements do not demonstrate religious animus" but instead "display a concern that there were individuals who abused the religious exemption to evade the vaccination requirement based on non-religious beliefs" by, for example, hiring consultants to help evade the vaccination requirement through false applications for the religious exemption. 

What about the argument that repealing the religious exemption would actually target religious freedoms under the First Amendment? That is not the case, the Third Department says, because repealing the religious exemption now makes the law a neutral one that applies to everyone. While the religious exemption had favored religious families, its repeal "subjects those in the previously covered class to vaccine rules that are generally applicable to the public." And, given the significant public health concern over stopping any measles outbreak, that repeal was rational under constitutional standards. The Appellate Division also rejects the parents' Equal Protection and free speech arguments, finding on the basis of Supreme Court authority that "there is no equal protection violation where children are not permitted to attend school without a vaccination," and the new rules regulate conduct, to speech, and parents remain free to express their views on vaccinations, even the rule forces parents to make difficult choices about whether to vaccinate their children.

Denial of medication while in police custody does not violate Americans with Disabilities Act

This case arising from the Occupy Wall Street protests a decade ago sets forth a new interpretation of the Americans with Disabilities Act. The plaintiff was arrested in March 2012 during an Occupy anniversary commemoration, and while in police custody, she was denied medicine for her epilepsy for hours on end before they finally administered it to her at 4:30 in the morning, about 12 hours after she first entered police custody. She normally takes her medication at 10:00 pm. Does she have a case under the ADA? The Court of Appeals says she does not.

The case is Tardif v. City of New York, issued on March 18. The district court granted the City summary judgment on this claim, and the Second Circuit (Bianco, Livingston and Parker) affirms. Under the ADA, no disabled person may be denied the benefits of any services from a public entity "due to her disability." Plaintiff claims she was denied a reasonable accommodation in violation of the ADA. While that theory can work for many plaintiffs depending on the circumstances, it does not work for plaintiff. As the Court of Appeals frames the issue:

Whether the alleged failure by the police to provide custodial medical services to Tardif in a timely and adequate manner prior to her arraignment, by itself, constitutes a failure to make a reasonable accommodation "by reason of" an individual's disability under the ADA.

Prior case law, Henrietta D. v. Bloomberg,  331 F.3d 261 (2d Cir. 2003), holds that plaintiffs must prove their "disabilities were a substantial cause of their inability to obtain services," rather than "so remotely or insignificantly related to their disabilities as not to be 'by reason' of them." Ultimately, the Court held in Henrietta D., "the demonstration that a disability makes it difficult for a plaintiff to access benefits that are available to both those with and without disabilities is sufficient to sustain a claim for a reasonable accommodation." This is a fine distinction. 

Plaintiff loses under that distinction because there is no evidence that plaintiff's disability made it difficult for her to access benefits, i.e., medical services, that were available to all pretrial detainees. Her epilepsy did not cause a deprivation of medical services. "At its core, the issue here is not whether Tardif as denied medical services because of her disability. Instead, her claim relates solely to whether she received adequate medical treatment in police custody for her disability, and such a claim is not cognizable under the ADA." Any contrary holding would allow inmates to sue in federal court virtually any medical malpractice clam arising from a custodial setting. In other words, the Court of Appeals sees this as a medical malpractice case, not an ADA case. 

The Court of Appeals issued a similar holding in Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998), stating that where someone challenges "the substance of the services provided" rather than "illegal discrimination," there is no ADA violation.

What relief would plaintiff have in this situation? In a footnote, the Court of Appeals notes that pretrial detainees like Tardif could sue for the denial of medical treatment under the due process clause for deliberate indifference. The Court of Appeals cites Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996), a case I argued 25 years ago, for that proposition. The opinion in Tardif's case does not indicate whether she pursued such a claim.

A hell of a win for the inmate

This case is a hell of a win for the inmate, who won summary judgment against the jail on his claim that he was placed in isolation despite his mental health issues, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. That victory is now only partially gone, as the Court of Appeals finds the district court resolved disputed issues of fact in ruling in plaintiff's favor on the confinement issue. But the Court still finds in plaintiff's favor on another issue, holding that plaintiff's re-sentencing following the abolition of the death penalty in Connecticut was an unconstitutional bill of attainder. Plaintiff also wins an equal protection argument because he was treated differently than two other inmates who also committed heinous crimes.

The case is Reynolds v. Quiros, issued on March 11. Plaintiff was convicted of murdering a police officer and given the death sentence. But after the Connecticut Supreme Court ruled the death penalty was unconstitutional under the state constitution, plaintiff was re-sentenced to life imprisonment. The district court said the jail was deliberately indifferent to plaintiff's constitutional rights in placing him in confinement in light of his mental health condition. The court also held the jail violated due process in failing to provide plaintiff the minimal procedural protections in determining his reclassification following the state supreme court's death penalty ruling. For good measure, the district court said plaintiff was denied equal protection because two other inmates were able to live in the general population even though they had similar cases as plaintiff.

The state wins the Eighth Amendment appeal because the district court overlooked evidence that plaintiff was not actually placed in "solitary confinement" but went into the Special Circumstances Unit, which a jury may find is not quite solitary confinement. While true solitary confinement places the inmate in his cell 23 hours a day, where he eats his meals and the lights are always on, the Special Circumstances Unit allows plaintiff to exercise outside the cell, they could talk to inmates during that recreation period, and they can have social visits and phone calls. So a jury must determine whether this was really solitary confinement or not.

Plaintiff does win the equal protection argument, though. The two inmates who got more favorable treatment at the jail were comparable to plaintiff even though plaintiff was the only one who killed a police officer. The other two inmates also committed heinous crimes, however. One killed a sleeping man in his home as part of a contract killing, and the other killed a State Trooper during the commission of a burglary. Since plaintiff was classified differently than these inmates, his constitutional rights were violated. 

The final issue raised in this appeal is whether the state law that was enacted after State Supreme Court overturned the death penalty, sentencing inmates like plaintiff to life imprisonment, is an unconstitutional bill of attainder, which prohibits the government from determining guilt and inflicting punishment against people without a trial. The Court of Appeals (Cabranes and Kearse) rules it is not. This is a particularly obscure area of constitutional law. You almost never see bill of attainder cases. 

 

Plaintiff wins this argument because the law actually singles him and other death row inmates for punishment, it is punitive in placing inmates in administrative segregation, and the state legislature intended to punish plaintiff and other inmates in passing the law. And there was no judicial trial to mete out the new punishment. 

Working remotely was not a reasonable accommodation (pre-Covid) under the ADA

This case acquaints us with how reasonable accommodations work under the Americans with Disabilities Act, which requires employers to accommodate disabled employees provided the accommodation does not dispense with an essential job function. The question here is, What is an essential job function? Plaintiff said his proposed accommodation still allowed him to perform all of his work, but the Court of Appeals says that's not true, and summary judgment for the employer is affirmed. 

The case is Frantti v. State of New York, a summary order issued on March 9. As the Court of Appeals (Cabranes, Raggi and Kaplan [D.J.]), "Not all accommodations are reasonable. . . . [A]n accommodation is not reasonable if it, in essence, requires an employer to eliminate an essential function of a job. Although the term ‘essential functions’ is not defined by the ADA, regulations promulgated by the Equal Employment Opportunity Commission . . . indicate that it encompasses ‘the fundamental job duties of the employment position. In approaching this inquiry, a court must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position.” 

With those principles out of the way, plaintiff loses. He says he can work from home to accommodate his disability, or take on an alternate work schedule. But that will not cut it, the Court says, because the record shows that "Frantti’s job required him to perform involved analysis on complex, collaborative projects that unfolded over long periods of time. He also needed to be “in the office and available on a consistent basis, for assignments” and to communicate with co-workers and other parties."

What's critical is that plaintiff's employer, the Division of Criminal Justice Services, could not technically accommodate remote work." At least not at the time. The Court of Appeals notes this is now a quaint management deficiency now that we're living through "this extraordinary era of pandemic-necessitated remote work." Ain't that the truth. The Court of Appeals has not heard cases in person since last spring, hearing oral arguments now over the phone and Zoom. But what matters is what management was able to do for plaintiff at the time, and at the time, working remotely was not feasible. 

For years, employment specialists have wondered if telecommuting might constitute a reasonable accommodation under the ADA. Many courts have not accepted that principle on the theory that, sometimes, your presence in the office is required to interact face to face with coworkers. I wonder if that will change in the age of Covid-19, where most employers found a way to get by through remote employment. My guess is that, once we're all vaccinated and the US reaches herd immunity, the next round of telecommuting cases will find courts ruling for the plaintiffs on this issue.

Arbitrator to determine whether employer rescinded the arbitration agreement in sexual harassment case

The Appellate Division, First Department, has held that an arbitrator and not a court must determine whether a company rescinded a mandatory arbitration agreement by telling its employees in a written policy that sexual harassment claims may be filed in court. This ruling vacates a State Supreme Court ruling that held that New York's recent law that intended to outlaw mandatory arbitration in such cases is not preempted by the Federal Arbitration Act.

The case is Newton v. LVMH, issued on March 18. I argued the appeal on Newton's behalf. A few years ago, in the wake of the "Me Too" movement, New York enacted CPLR 7515, which states that sexual harassment claims should not be subject to mandatory arbitration. The plaintiffs' bar and sexual harassment activists hailed this law because it brings these cases into the open and not behind closed doors, and the courthouse is a more hospitable place to litigate these claims than private arbitration, in which arbitrators are not required to comply with the rules of evidence or even settled case law. (Also, there is no appeal from an adverse arbitration ruling, and the employer pays the arbitrator for her time on the case). But many courts have held that Section 7515 is a nullity because the Federal Arbitration Act authorizes the arbitration of employment discrimination cases. In Newton's case, the state trial court ruled in her favor, determining that the FAA does not preempt Section 7515. That ruling made news, as it was among the few arbitration rulings that favors the plaintiff. 

The First Department does not directly resolve whether the FAA renders Section 7515 a nullity, as it decides that Section 7515 does not have retroactive effect. That ruling means Newton cannot invoke Section 7515. Another appellate court is going to have to decide whether Section 7515 is enforceable in light of the FAA, which has been interpreted quite broadly over the years by the Supreme Court to include just about any claim you can imagine, so long as the parties have signed an arbitration agreement, usually at the outset of the plaintiff's employment when, let's face it, her bargaining position is minimized and management is not going to negotiate away its desire to take any employment disputes to arbitration.

What makes this case unique is that, after New York enacted Section 7515, it issued policy language to employers that found its way into personnel handbooks. LVMH, which includes the Louis Vuitton brand for which Newton works, did place that language into its policy manual, telling employees that they may pursue their sexual harassment claims in state court. That is what Newton did. 

Does the policy language supersede the arbitration agreement that Newton signed a few years earlier? The First Department cannot say, because the arbitration agreement also says that issues of arbitrability are to be resolved by an arbitrator. Newton tried to get around that threshold issue by arguing that this issue implicates strong issues of state public policy against sexual harassment, and the issue also touches upon traditional contract law, which is always a matter for the courts. The First Department disagreed, holding that the issues of whether an arbitration agreement may be rescinded by subsequent company policy is not a matter of strong state public policy. The court did not address the contract issue.

Racial comment to teacher brings her case to a jury

Corene Carter was an English teacher in the Syracuse City School District who sued her employer for racial discrimination. She told the school principal that others at work were mistreating her. The Principal told plaintiff that this was happening because "You're a well-educated Black woman. They're intimidated by you." Evidence like this returns the case to the docket after the trial court dismissed the case on summary judgment.

The case is Carter v. Syracuse City School District, a summary order issued on March 10. The first question for the court is whether plaintiff suffered any adverse actions that make it worthwhile for her to sue in the first place. The Court of Appeals (Livingston, Chin and Bianco) says she does. The City argued that plaintiff's mistreatment was not sufficiently adverse, but the Court of Appeals disagrees. 

A rational juror could find that a Carter, who claims she was (1) subject to a negative evaluation carried out under irregular circumstances, (2) placed on an improvement plan, (3) reassigned from classroom teaching to teaching from a cart, (4) excluded from a master teacher program, (5) removed as chair of the English Department, (6) assigned to teach tenth grade while her cohorts advanced to eleventh grade, and (7) passed over for assignment to teach Advanced English, has adduced enough evidence to demonstrate at least one adverse employment action.

Further adverse actions took the form of her removal as chair of the English Department to a less-distinguished title, and she was also assigned to teach from a cart, staffed to the tenth grade, and passed over for an Advanced English class. The school district argued these were mere "alterations of job responsibilities" that could take place in any workplace and therefore do not qualify as adverse actions under the discrimination statutes, but the Court of Appeals thinks that, as a whole, we have enough here for a lawsuit. Sometimes, even the lack of any financial loss will give rise to an adverse action if enough bad things happened to the plaintiff. This is one of those cases. 

A few points about the adverse action analysis. First, while a negative performance evaluation, without more, may not be enough, the evaluation in this case, along with her placement on an improvement plan, "contributed to the other actions she claims [the District] took against her." Second, while the district court said there was no evidence the master teacher program exists, the jury may find otherwise, since plaintiff testified that such a program does exist, and the Director of Personnel referenced it during an interview with the State Division of Human Rights. “Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.” The Court cites Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996), for this proposition.

Plaintiff also has to prove these adverse actions took place because her race. The Court of Appeals finds a jury may answer that question in the affirmative. When Carter told the principal Dittman that her colleagues were mistreating her, "he agreed that they were intimidated by her because she was a Black woman and stated that he was also intimidated by her. Later, after being put on an improvement plan and experiencing professional fallout, Carter asked [the] Vice Principal ... 'Why are they doing this to me?' He responded, 'You’re a well educated Black woman. They’re intimidated by you.'" The Court of Appeals hold that "[t]hese comments by senior school officials attributed Carter’s professional setbacks to prejudice against Black women. They are thus enough not only to surmount Carter’s minimal burden of making a prima facie case but also to permit a finding that the neutral reasons the School District gave for its actions were pretext for racial discrimination."

Plaintiff also sues over a hostile work environment because of her race. That claim is also revived on appeal following the grant of summary judgment. Colleagues and supervisors "made a number of racially hostile comments to her," including (1) Her colleague, List, repeatedly talked about the school’s “cute little Black kids” and how “poorly behaved” and “ill mannered” they were.; (2) another colleague, Pairaino, began to tell Carter a racist joke, stopping only upon seeing her disapproval.; (3) another colleague, Resti, told Carter, regarding a fight between two Black students, that “it was ‘cultural’ so what could you expect.” When Carter complained about her colleagues’ behavior to the Principal, he agreed “that the White teachers felt intimidated by [her] because of [her] status as a ‘tall, Black, well-spoken, educated, professional woman,’” and stated that he was intimidated by her. And, as noted, when Carter asked the Vice Principal, “Why are they doing this to me?” after she received a negative evaluation and was put on an assistance plan, he responded, “You’re a well educated Black woman. They’re intimidated by you.”

What strikes me about the hostile work environment claim is that we have fewer than a half-dozen racial comments. Published cases sometimes hold that only a few comments within a few years are not enough to create a hostile work environment, but HWE cases can be all over the place on this issue. Sometimes, you know an HWE when you see one.

Anti-gay religious organization cannot sue over Vimeo censorship

The Court of Appeals does not say this, but this case dovetails with the so-called "cancel culture" that involves a media or some other corporate entity distancing itself from an odious or unpopular speaker. This case asks when a religious organization can sue Vimeo after the video platform took the organization off its menu.

The case is Domen v. Vimeo, issued on March 11. Vimeo is like YouTube. It allowed plaintiff's organization, Church United, to run its videos through the platform until plaintiff began running Church United's videos that violated Vimeo's policies barring the promotion of "sexual orientation change efforts."  In other words, plaintiff was promoting gay-conversion therapy and Vimeo took the organization off Vimeo.

Can you sue over this? Not this case. In the Communications Decency Act, no provider or user of an interactive computer service shall be held liable for:

any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or any action taken to enable or make available to information content providers or others the technical means to restrict access to [the] material described.

That's broad discretion afforded to Vimeo and YouTube when they want to pull videos that, in their opinion, fall within these content-based restrictions. We are not talking First Amendment here, in which the government enjoys no such discretion to censor speech. The CDA deals with private speech restrictions, which are not held to constitutional standards. As the Court of Appeals (Pooler, Wesley and Carney) writes, "the provision explicitly provides protection for restricting access to content that providers “consider[] . . . objectionable,” even if the material would otherwise be constitutionally protected, granting significant subjective discretion. Id. (emphasis added). Therefore, Vimeo is statutorily entitled to consider SOCE content objectionable and may restrict access to that content as it sees fit."

The statute does not even require providers like Vimeo to use any particular form of restriction. This means Vimeo was able to delete Church United's entire account as opposed to deleting only those videos promoting its anti-gay message. 

Finally, the plaintiff can win upon showing the video provider acted in bad faith. But the complaint in this case alleges bad faith in a conclusory manner, not enough to open this case up for discovery. While plaintiff says bad faith is proven buy all the other videos "relating to homosexuality [that] exist on Vimeo's website." 

Appellants point to titles of videos that allegedly remain on Vimeo’s website: “Gay to Straight,” “Homosexuality is NOT ALLOWED in the QURAN,” “The Gay Dad,” and “Happy Pride! LGBTQ Pride Month 2016.” However, the mere fact that Appellants’ account was deleted while other videos and accounts discussing sexual orientation remain available does not mean that Vimeo’s actions were not taken in good faith. It is unclear from only the titles that these videos or their creators promoted [sexual orientation change efforts]. Moreover, one purpose of Section 230 is to provide interactive computer services with immunity for  removing “some—but not all—offensive material from their websites.” Given the massive amount of user-generated content available on interactive platforms, imperfect exercise of content-policing discretion does not, without more, suggest that enforcement of content policies was not done in good faith.

Some unpleasant realities when suing for retaliation under Section 1983

There are some unpleasant realities guiding employment law that plaintiffs may not know about. This case highlights a few of them.

The case is Gonzalez v. City of New York, a summary order issued in February 9. Plaintiff worked for the City. He claims retaliation under Section 1983 because, after he refused to terminate a Black employee under his supervision, he was denied a promotion. Plaintiff may have a prima facie, or preliminary, case of retaliation, but he cannot prove that management's reason for the promotion denial are false. Management said plaintiff was denied the promotion because he did not interview well for it. In a shrewd evidentiary maneuver, management produced the interview notes that said his resume misstated his work, he dissembled over this failure to pass the bar examination, he was promoted very recently and could not articulate a reason why he was ready for a second promotion so quickly, or what lasting improvements had he'd made in his division that warranted a promotion. 

What this evidence means is that while plaintiff may be able to show he was denied the promotion shortly after he refused what he deemed a racially-motivated termination, that timing is not enough to prove the employer's reason for the promotion denial was pretextual. The case holding that is El Sayed v. Hilton Hotels Corp., 627 F.3d 931 (2d Cir. 2010). So that's one unpleasant reality of these cases. 

The other unpleasant reality is what happens when an administrative tribunal, such as the NYC Office of Administrative Trials and Hearings (OATH), reaches adverse findings against the plaintiff pursuant to Civil Service Law section 75, and those findings are relied upon by management tries to justify the adverse action, in this case, a failure to interview the plaintiff for another position. The OATH administrative law judge said plaintiff had excessive absences and had engaged in other misconduct. Those are the reasons the City claimed justified the failure to interview the plaintiff. Cases hold that ALJ findings can constitute a defense to cases like this. We call that issue preclusion, provided the plaintiff had a full and fair opportunity to defend himself at the OATH hearing and the issues at the hearing and in the lawsuit are identical. The case on that point is Matusick v. Erie County Water Auth., 757 F.3d 31 (2d Cir. 2014).

Plaintiff noted that a finding of termination for just cause does not necessarily mean there was no discrimination. This argument could win the appeal. But the City has a way around it, the Court of Appeals (Jacobs, Bianco and Park) says, because the district court expressly declined to preclude plaintiff's case on the preclusion issues and instead determined that his excessive absenteeism and other misconduct were legitimate reasons for the City not to interview him for the position.

Court of Appeals enjoins anti-abortion protesters from disrupting operations at abortion clinic

It took over a year for the Court of Appeals to decide this case, arising from the New York Atttorney General's effort to enforce the Freedom of Access to Clinic Entrances (FACE) law, which protects women from harassment while obtaining an abortion. The district court denied the AG's motion for a preliminary injunction against the organization that was protesting outside a Brooklyn abortion clinic. The Court of Appeals reverses and says a number of evidentiary errors denied the AG a fair trial. The Second Circuit also orders injunctive relief in favor of the abortion providers.

The case is People of the State of New York v. Griepp, issued on March 10. To win the injunction, the AG had to show the antiabortion group impeded access to the clinic. The AG claimed the activists would crowd patients and escorts with their bodies and signs, lean into cars to provide literature or counseling, made threatening comments, and tried to engage patients and escorts against their will. On appeal, the AG challenges a series of evidentiary rulings from the district court.

Evidentiary challenges are just about the hardest way to win a reversal in the Court of Appeals (Pooler, Calabresi and Livingston [in dissent]) following trial. But a little-known fact is that hearsay is admissible in preliminary injunction hearings. The district court also does not have unlimited discretion to keep out evidence that might make a difference at the trial. These principles guide the AG to victory on appeal.

One evidentiary problem was the district court allowed Protester Experience Questionnaires (PEQ) and Escort Recaps into the record even though they were hearsay. These are written accounts that contemporaneously record the goings-on outside the clinics so the clinic has a record of what kind of harassment it endured while trying to go about its business. But the district court afforded these documents no evidentiary weight because the clinic was able to prove these facts through live testimony. That was wrong, the Court of Appeals says, because the Escort Recaps still provided relevant information, even if some people exaggerated the facts in their recaps. The PEQ's were afforded no weight at trial because the district court said that only a sample were admitted in evidence and were not representative. That was wrong, the district court said, because they were useful to prove specific examples of protester misconduct. Excluding this evidence at the hearing was not harmless error because the Recaps contained enough relevant and useful information to prove the protesters had physically obstructed clinic patients. The same cannot be said about the PEQ's; they do not contain the kind of useful information found in Recaps. I will tell you this: if you want a good discussion about the rules of evidence in the context of injunction hearings, this is the case for you. The Court worked hard on this case, going through all the exhibits and extensive trial testimony.

The Court of Appeals ultimately holds the AG was entitled to a preliminary injunction after all, and that she had proven a likelihood of success on whether the protesters had physically obstructed patients, threatened the use of force against them, and violated the rules against follow-and-harass. The Court also finds that, without the injunction, the clinic patients will suffer irreparable harm and that without the injunction, there will be future violations of the FACE Act. The Court also holds the FACT Act does not violate the First Amendment right to speech and protest, as it prohibits true threats, which fall outside the First Amendment's protections.

No liability for termination over plaintiff's association with the mayor

The plaintiff worked for the Village of Monticello in Sullivan County. He was suspended and then fired from his position. His lawsuit claims this happened because of his political association with Mayor Gordon Jenkins. It may be that he was fired for that reason, the Court of Appeals says, but that termination is not actionable because the individual defendants are entitled to qualified immunity.

The case is Snowden v. Solomon, a summary order issued on March 10. The general rule is the government cannot fire you because of your political associations. But that right is not unlimited. The government can fire you if it can point to a vital interest in distancing itself from you over that association.   Vital interests include "considerations such as maintaining efficiency, discipline, and integrity, preventing disruption of operations, and avoiding having the judgment an professionalism of the agency brought into serious disrepute." The Second Circuit said that in Piscottano v Murphy, 511 F.3d 247 (2d Cir. 2007). But under qualified immunity, the plaintiff has to cite a binding case that says what happened to him has already been found to be illegal. He cannot do so. 

The Court of Appeals (Livingston, Park and Chin) says plaintiff's association with Jenkins was a real problem. They were both indicted as co-defendants from crimes undertaken in their official capacities. They were accused of planning to demolish a building that had contained asbestos without obtaining a proper abatement, which would have endangered community members. The indictment also said they agreed with contractors that, in exchange for a discounted demolition fee, they would funnel more demolition work to them in the future. Mayor Jenkins pleaded guilty to three misdemeanors arising from this indictment. 

The Court said it is not "the conventional role of the First Amendment" to allow a government employee to keep his job despite his political association with a mayor where both of them are indicted as co-conspirators for misconduct undertaken in their official roles, and the mayor pleads guilty. "Such a decision does not bear the risk of telling other public employees that they engage in protected First Amendment activity at their own peril." The Second Circuit cites Heffernan v. City of Patterson, 136 S. Ct. 1412 (2016), for that proposition. Instead, such a decision restores the public faith in the integrity of the village and its officers, the Court of Appeals says. Qualified immunity attaches because reasonable governmental decision makers could have understood there was a vital interest in firing plaintiff over his association with the mayor.

What happens when a court decides the lawyers are not properly representing the class action?

This case acquaints us with an aspect of class action litigation that we don't hear too much about. At least I don't hear about it much. For the court to certify a class action, it has to determine that the lawyers handling the case are capable of properly representing the class. What happens if the court decides that the lawyers are not capable?

The case is Jin v. Shanghai Original, Inc., issued on March 9. This is a wage and hour case alleging the restaurant did not properly pay its employees minimum wage and overtime. Wage and hour claims are rampant in New York City. The district court certified a class action and appointed a law firm to represent the class based on its experience in handling cases like this. But, the Court of Appeals (Kearse, Livingston and Wesley), that representation "faltered" because counsel, upon petitioning the court to reopen discovery to prove that management was impermissibly persuading employees to opt out of the class, did not complete the necessary depositions to prove that. As the Court writes:

The magistrate judge reopened discovery for a limited amount of time to allow  class  counsel  to  conduct  depositions  of  three  restaurant  managers  and twenty-five  class  members  who  opted  out  to  investigate  the  Owners’  alleged interference.  During a status conference on the last day of the discovery period–– which  class  counsel  tried  twice  to  delay––class  counsel  revealed  they  had conducted only a few depositions of the managers, none of the employees, and stopped conducting the remaining planned depositions more than a month before the deadline without notifying the court.

Then, when the court scheduled the case for trial, since there were no records to prove the case as management had lost the required record-keeping, 

class counsel’s revised witness list did not reflect an understanding that witness testimony would be essential for proving the class’s claims. Their first revised witness list included thirty-four witnesses and gave inadequate details on each witness’s anticipated testimony.  The second revised list revealed that class counsel planned to call just four witnesses, only two of whom were class members. The two non-class members were not employed at  Joe’s  Shanghai  in  Flushing, and  the anticipated  testimony  of  one  seemed  to undermine the class claim because he was paid an hourly, rather than flat, wage. Class  counsel  also  submitted  a  final  class list  consisting  of  thirty-eight  class members.

At this point, the district court decertified the class on the basis that  “by calling only two   relevant   witnesses”   class   counsel   was   not   “fairly   and  adequately represent[ing] the interests of the class,” in violation of Rule 23(g). The two plaintiffs did proceed to a bench trial without the class action and won their cases. But no class action.

The Court of Appeals resolves two issues. First, it holds that the sole plaintiff who took the appeal in challenging the dissolution of the class may pursue that appeal even though he got the relief he wanted in the bench trial. Jin retains a personal stake in the appeal. The Court reasons:

Even accepting that Jin lacks a financial interest in the class certification issue,12  neither we nor the Supreme Court  have  required  that  to  satisfy  personal  stake  in  the  context  of  a named plaintiff appealing the denial of class certification following a favorable judgment  on  the  merits  at  trial. Indeed,  as  noted  above,  the  [Supreme] Court  [has] identified several types of relevant interests and determined “the narrow question presented  requires  consideration  only  of  the  private  interest  of  the  named plaintiffs.” The Court nowhere required that a named plaintiff’s personal stake be financial.

Moreover, the state Labor Law allows "private attorneys' general," or private plaintiffs, to bring these claims. "The NYLL is an excellent example of a law for which class actions help enforce important public policies, as its goal is to protect workers from abusive employment practices and ensure compensation in accordance with hours worked. The class Jin  seeks  to  represent  serves  this  goal: given  the  small  size  of  many  of  the individual claims, those class members lack incentive to pursue the alleged NYLL violations and would not obtain relief without class certification."

The Court next finds the district court did not abuse its discretion in decertifying the class based on counsel's inadequate representation. "The  district court  need  only  find  that  a  previously  satisfied  requirement  of  Rule  23  is  now lacking. . . . The district court acted within its discretion in decertifying the class on the ground  that  class counsel  was  no  longer  adequately  representing  the  class. Competent representation by class counsel is crucial to the prosecution of a class action." The Court goes on to explain:

The record is replete with counsel’s   shortcomings   before   the   class   was   decertified:   class   counsel   (1) attempted numerous times to delay trial without any meritorious basis; (2) had the court reopen discovery to conduct twenty-eight depositions related to the Owners’ alleged misconduct but  conducted only three and failed to inform the court until over a month after they abandoned depositions; (3) repeatedly failed to submit a witness list that complied with Judge Ross’s instructions; and (4) in its final revised list,  indicated  they  would  only  call  two  class  members  as  witnesses  despite indications in the JPTO of the significance of class-member testimony.  Counsel’s representation   of   the   class   fell   woefully   short   of   the   skilled   and   zealous representation    expected    of    class    counsel    under    Rule  23(g),  justifying decertification.

 

 

Let's hear it for nominal damages!

A common misconception about constitutional law is that a constitutional violation automatically entitles you to money damages. Such a violation may get you money, but only if you can prove damages. Some constitutional violations do not produce damages. What happens then? If you can prove, for example, that the government censored your speech but you did not suffer any emotional or economic harm, you will get nominal damages. At least that's been the law in the Second Circuit. The question before the Supreme Court in this case is whether nominal damages are actually available under the Constitution. The answer is Yes.

The case is Uzuegbunam v. Preczewski, issued in March 8. I have brought free speech cases over the years where the plaintiffs did not suffer emotional or economic damages. But these cases were still worth filing because there was a principle at stake. One way around the lack of damages is always a claim for injunctive relief, or a court order for the government defendant to stop the policy or practice that caused the speech violation in the first place. If the government tries to moot the claim by revising its policy before the lawsuit is resolved, then your only option is punitive damages (if the speech violation is outrageous enough) or nominal damages. In the Second Circuit, the nominal damages claim keeps the lawsuit alive and repels any mootness argument.

I did not realize that the availability of nominal damages was an open issue in the Supreme Court. But the Court thinks this is an easy call, ruling 8-1 that nominal damages are in fact available. Justice Thomas writes the majority opinion and Chief Justice Roberts is the sole dissenter. 

This case arose because religious students at a public university were ordered to stop their religious proselytizing. Then they graduated college, so they were no longer subject to this speech restriction. They sued anyway. The majority says nominal damages have always been available under the British legal system, from which the U.S. draws many legal principles. In 1838, the Supreme Court noted that a prevailing plaintiff "is entitled to a verdict of nominal damage" when ever "no other kind of damages be proved." So I guess the Court has recognized this principle for quite some time, though its viability may have been in doubt by 2021, which is why the Court took up that issue in this case. The Court notes that while nominal damages may only be a dollar, that is not a consolation prize or symbolic. Rather, they still constitute "relief on the merits of his claim" and can "affect the behavior of the defendant towards the plaintiff and thus independently provide redress."

In dissent, Roberts says the majority trivializes Article III of the Constitution, which gives courts authority to resolve "cases or controversies," and that an award of nominal damages is nothing more than court finding "that the plaintiff's interpretation of the law is correct." That turns the court into a moot court, or an academic exercise. Since judge are not "advice columnists," Roberts says,"I part ways with the Court regarding both the framework it applies and the result it reaches."

Nominal damages also provide a moral victory for the prevailing plaintiff. Courts sometimes forget that it means for a plaintiff to win her case even there are no damages. They beat the system. For the lawyer, nominal damages may not be a total victory, since the attorney will not recover any contingency share, and the Supreme Court has said that nominal damages in your typical case will not entitle you to attorneys' fees under the civil rights fee-shifting laws.

Bad Terry stop overcomes qualified immunity

When the plaintiff in this case exited the Palisades Mall with his family in November 2015, police officers frisked him, touching his body, including his private parts. This all happened in the parking lot in front of his family. The officers found nothing on this guy. They said they frisked him because one of the officers "believed there might be a judicially issued warrant for plaintiff's arrest." There was no warrant. Plaintiff has a case, the Court of Appeals says, because the officers violated clearly-established law.

The case is Vasquez v. Maloney, issued on February 4. In 1968, the Supreme Court said the police cannot frisk someone on the street without a warrant unless they have reasonable suspicion to believe that criminal  activity is afoot. That case was Terry v. Ohio, so we call them "Terry stops." The reasonable suspicion standard is lenient and is lower than the probable cause standard. Still, officers cannot speculate or guess that someone needs a Terry stop. Instead, the police need specific and articulable facts to show that someone was involved in a crime or wanted in connection with a crime.

The Terry precedent is clearly established law for qualified immunity purposes. That means the officers cannot invoke immunity on the basis that the law was too fuzzy in 2015 for them to know they were violating the Fourth Amendment in frisking the plaintiff on the basis of speculation that there might be criminal activity with this guy.

Qualified immunity cannot attach unless the law was clearly established. We look to Supreme Court and Second Circuit cases to determine what is clearly established. Most immunity cases rely on Second Circuit cases in proving the law was clearly established. But the Second Circuit (Nardini, Park and Cabranes) relies solely on Terry in finding the officers violated clearly established law. We don't see that very often, but the Court of Appeals makes it clear that, based on plaintiff's version of events (this case is at the summary judgment stage), this was an obvious Terry v. Ohio violation.

Excessive force against the Rikers inmate, but no case against bystander officer or the City

In this police misconduct lawsuit, the plaintiff says that correction officers beat him in his cell while he was handcuffed after he refused their directive to pull his hands back from the slot in the cell door. Sounds like a good case. After all, this was a team of officers who entered the cell and, assuming the plaintiff had no weapon, they were able to subdue him without excessive force, right? But the case was dismissed on summary judgment and the Court of Appeals affirms. The case is over.

The case is McGrier v. City of New York, a summary order issued on February 24. The Court of Appeals (Walker, Sack and Sullivan) agrees that "there is some evidence to suggest that one or more of the individual officers applied excessive force against McGrier." So plaintiff is off to a good start. Here's the problem: he named as a defendant officer Robles and the City of New York as defendants. They are not liable.

Robles is not liable because there is no evidence to suggest he was involved in the decision to use force. While you can sue officers over their failure to protect you from the use of force effected by other officers, that only works when the officer standing by had a realistic opportunity to intervene to prevent the harm. That's the rule in Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994). It does not look like Robles was in a position to stop the excessive force. That is a common issue in these cases, as the force often proceeds so quickly that the other officers could not have intervened even if they wanted to.

What about the case against New York City? If you sue the City under Section 1983, you have to show the injuries resulted from a policy or practice of excessive force. We call that Monell liability. Plaintiff's best evidence on this point is a report from the Department of Justice in 2014 that suggests there was a custom of excessive force at Rikers prior to July 2013 as to adolescent inmates. Plaintiff's assault took place in 2013. But that report does not address any pattern of excessive force against adult inmates for that time period. The Court of Appeals says that distinction means that plaintiff cannot show such a pattern against inmates like him, and the case against the City is dismissed.