Highway stop for impaired driving gives rise to false arrest claim

The police pulled over this woman while she was driving on the New York Thruway and given a series of field sobriety tests. The officer determined that plaintiff failed some of the tests, and he brought her into the police station and charged her with driving while ability impaired by drugs. Turns out, plaintiff had not taken any drugs, and the charges were dropped. The false arrest case was dismissed on summary judgment, but plaintiff wins the appeal and the Court of Appeals reinstates the case.

The case is Gatling v. West, a summary order issued on April 6. False arrest cases are difficult because even if the plaintiff was actually not guilty of anything, the police can still show probable cause and have the case dismissed if he reasonably thought the plaintiff was guilty of something. In this case, the officer said plaintiff exhibited impaired speech and impaired motor coordination and though something was wrong with her balance. He also testified that she failed the walk-and-turn test, the one-leg-stand test, and the finger-count test. Plaintiff said she had passed those tests and there was nothing wrong with her that day.

My instinct was that plaintiff would lose this case because officers can show probable cause through their reasonable belief that the plaintiff did something wrong and, and courts often give the police the benefit of the doubt in he-said she-said case. The defendant in the case says the plaintiff's testimony that she did nothing wrong and had passed the sobriety tests was self-serving and subjective. But the Court of Appeals (Bianco, Parker and Lynch) says plaintiff can win the case at trial. The Court reasons:

A jury could rationally credit Gatling’s testimony and conclude that she could determine whether she passed those tests based only on hearing Trooper West’s instructions, especially with tests as basic as standing on one leg and finger-counting. As to Trooper West’s testimony regarding his belief that she passed only two of the tests, upon which the district court relied, we recognize that probable cause may exist even if it is based on mistaken information, as long as the officer acted in reasonable reliance upon that information. See Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). 

However, if Gatling performed the tests exactly as instructed by Trooper West, a rational jury could find that he fabricated her negative test results or, at a minimum, any belief that she failed was not reasonable. Moreover, Gatling notes that, at his deposition, Trooper West was unable to explain which “clues” or factors led him to conclude that she had failed three of the tests, and no such explanation exists in his paperwork. Therefore, viewing the record as a whole, a jury is not required to credit Trooper West’s testimony that he believed that she failed three tests, nor is it required to find that any such belief was reasonable.

Plaintiff also wins the appeal for other reasons. While the officer said she had glassy eyes, he did not note that problem on the DWI Bill of Particulars, so the jury may find this was a post-hoc accusation against plaintiff. While the officer said plaintiff was driving erratically, 

although there was a 911 call regarding erratic driving by a car meeting the general description of Gatling’s Impala (i.e., the color and model), Trooper West’s observations as he followed the car did not corroborate the 911 call; to the contrary, he testified that he followed Gatling’s car for one-half mile and witnessed no erratic driving whatsoever. Moreover, Trooper West’s observation that Gatling was travelling too close to the car in front of her in that she was twenty-five to thirty-five feet behind the car travelling at a rate of fifty to fifty-five m.p.h. – even if true – hardly provides probable cause for charging the driver with driving while impaired by drugs.

The false arrest case therefore goes to trial. Plaintiff's racial discrimination claim, however, will not go to trial. She argued that the officer pulled her over and lied about her sobriety because of her race. But the Court of Appeals, while recognizing that a racial discrimination could proceed under 42 U.S.C. 1981 with the right facts, says the facts are not present here and that plaintiff cannot simply allege racial discrimination "from thin air." Without additional evidence, arresting someone without probable cause does not demonstrate racial animus. She does allege that the Trooper, while driving her to the police station, was playing music in the police car that referred to women in a derogatory manner. But that is not an allegation of racial discrimination, the Court says, and this evidence alone will not prove racial discrimination.

Shooting at fleeing suspect constitutes a seizure under the Fourth Amendment

The Supreme Court has ruled that the Fourth Amendment protection against unreasonable seizures applies when the police fire their guns at a fleeing vehicle. 

The case is Torres v. Madrid, issued on March 25. The case began when the police tried to execute an arrest warrant against Torres, who took off at a high rate of speed because she thought he police were carjackers. The police shot her car 13 times, striking her twice. She sued the police for excessive force.

This may seem a simple issue, but it's not. Chief Justice Roberts votes with the liberal majority, making this a 5-3 case (Justice Barrett not participating). Roberts notes that prior Supreme Court cases hold that a "seizure" arises when the police use force with intent to restrain someone. Under the common-law in place when the Fourth Amendment was drafted, a seizure does not have to result in the actual control or detention of the suspect. Old cases also hold that "the slightest touch was an arrest in point of law." And, of course, arrests are "seizures." The majority digs into old cases from England in summarizing this area of the law.

The Court holds there is no reason to draw "an artificial line between grasping with a hand and other means of applying physical force to effect an arrest." The majority rejects the dissenting argument that arrests are limited to cases when the police lay their hands on the suspect. While there were firearms at the time the Constitution was drafted, law enforcement did not carry them until the late 1800's. So there are no cases holding that shooting at a fleeing suspect constitutes a Fourth Amendment seizure. This case is the first from the Supreme Court, which emphasizes that while not every touch from a police officer constitutes a seizure, it will be a seizure when the police do so with intent to restrain. 

Employer's prior concerns about a plaintiff's job performance can undermine the inference of retaliation

A well-known principle guiding retaliation claims under the anti-discrimination laws goes something like this: if the employer has been thinking of terminating the plaintiff even before the plaintiff engages in protected activity, and the employer then fires the employee shortly after he engages in that protected activity, there is no prima facie case of retaliation because the plaintiff was on the way out the door anyway. That principle kills off this case.

The case is Perez v. City of New York, issued on April 15. The principal Second Circuit case on the issue of pre- and post-protected activity motives is Slattery v. Swiss Reinsurance, 248 F.3d 87 (2d Cir. 2001). The Court in Slattery stated that temporal proximity between a plaintiff’s protected activity and a defendant’s adverse employment determination will not prove causation if the adverse employment determination (such as the termination or demotion) was “both part, and the ultimate product, of an extensive period of progressive discipline” that began before the plaintiff’s protected activity. 

In Slattery, the progressive discipline and the reason for the plaintiff's termination related to the same  performance issues. In Perez, the pre- and post-protected activity related to different issues. Prior to Perez's request for a reasonable accommodation, management has issued him a series of negative performance memos. Following the accommodation request, management conducted an investigation into Perez's job application and determined that he had engaged in fraud. Management said it conducted the fraud investigation after looking into Perez's performance issues, triggering questions about the possible fraud. 

I represented Perez on this appeal. I argued that the fraud was unrelated to the prior performance issues such that plaintiff's termination did not grow out of the prior issues but a new concern, the alleged fraud (which plaintiff disputed in any event). The Court of Appeals disagreed, holding that the fraud investigation grew out of the unrelated performance issues and that plaintiff therefore could not make out a prima facie case of retaliation. The Court (Carney, Wesley and Nardini) writes:

1. the record shows that since June 2015, Defendants had been moving towards terminating Perez’s employment in response to the litany of complaints made about his job performance: his “repeated failure to perform [his] duties,” his “disturbing” behavior, and his “incompetence.” Defendants ultimately terminated Perez in April 2016, citing fraud—his denial and nondisclosure of past employment issues—that they alleged he committed while applying for employment with DCAS. The record leaves no doubt that his termination grew out of the ongoing disciplinary investigation that Defendants initiated regarding Perez in June 2015, four months before Perez made his reasonable accommodation request, and of which the fraud issue was only the most recent component. Consequently, the mere temporal proximity of Perez’s protected activity and his termination cannot support an inference of the requisite causal connection.

This case extends the Slattery reasoning, or at least that is how I argued it. The Court of Appeals did not see it that way. Below is the Law 360 write-up on the case: 

2nd Circ. Topples NYC Engineer's ADA Case

APRIL 16, 2020

Law360 (April 13, 2021, 7:13 PM EDT) -- The Second Circuit on Tuesday tossed a former New York City engineer's suit accusing a city agency of wrongly firing him a few months after he requested a disability accommodation, saying the worker couldn't disprove the city's claim it terminated him for misconduct.

A three-judge panel affirmed a March 2020 summary judgment ruling in favor of New York and its Department of Citywide Administrative Services, saying former employee Gil Perez was clearly fired for poor performance and fraud. The panel further affirmed the firing was not because of his request for a few weeks' notice of schedule changes to help deal with his sleep apnea.

"The record leaves no doubt that his termination grew out of the ongoing disciplinary investigation that defendants initiated regarding Perez in June 2015, four months before Perez made his reasonable accommodation request, and of which the fraud issue was only the most recent component," the panel said in a Tuesday summary order.

Perez sued the city and DCAS in August 2016 claiming discrimination and retaliation under the Americans with Disabilities Act and state law. He appealed only his retaliation claim in April 2020.

But the six months between Perez's disability accommodation request and his firing alone weren't enough to suggest that the request caused him to lose his job, the court found.

The decision turned on the Second Circuit's 2001 ruling in Slattery v. Swiss Reinsurance America Corp. In Slattery, the court held that close timing between protected activity and a negative employment action isn't enough to suggest retaliation if the adverse action was linked to discipline that predated the protected activity.

New York, meanwhile, showed it had been inching toward firing Perez since June 2015 based on problems with his job performance — and an investigation that revealed Perez had failed to disclose previous employment issues when he applied for his DCAS job.

"Perez has failed to adduce sufficient evidence for a jury to infer causation," the panel said, adding, "The record evidence of complaints about Perez's behavior and management's related concerns is overwhelming."

But Stephen Bergstein, partner at Bergstein & Ullrich and an attorney for Perez, told Law360 Tuesday the court took the Slattery standard too far.

Bergstein noted that the DCAS discipline that began before Perez sought a disability accommodation wasn't the root of his firing. Rather, his termination was for something completely different: the city's investigation, which took place later.

"That investigation had nothing to do with negative write-ups. That [investigation] didn't arise prior to the protected activity," Bergstein said. "I'm surprised by this because they're really stretching Slattery beyond what I think is reasonable."

Perez started working for DCAS in November 2012 after resigning from the city's sanitation department. He was disciplined starting in fall 2014 for poor performance and insubordination, according to court filings.

Perez had sleep apnea and his doctor said a more regular schedule would help, so in October 2015 he requested six weeks' advance notice for future shift changes, according to his brief. He was granted a version of the accommodation six months later, in April 2016, according to court filings.

Meanwhile, the city had begun investigating Perez's departure from the sanitation department and found he had resigned to avoid getting fired, according to the city's appellate brief. However, Perez hadn't disclosed that issue when he applied to DCAS — giving the city reason to fire him, the court found.

A spokesperson for the New York City Law Department did not immediately respond Tuesday to a request for comment.

Judges Richard Wesley, Susan Carney and William Nardini sat on the panel.

Perez is represented by Stephen Bergstein of Bergstein & Ullrich.

New York is represented by Richard Dearing, Claibourne Henry and Scott Shorr of the New York City Law Department.

The case is Perez v. City of New York et al., case number 20-1301, in the U.S. Court of Appeals for the Second Circuit.

 

Inmate wins appeal arising from grievance over beating

The inmate wins this appeal on a technical issue. The Court of Appeals reinstates this claim alleging that correction officers had assaulted him in violation of the Eighth Amendment. The case was dismissed because the trial court said plaintiff did not prove he had filed an internal grievance, a requirement under the Prison Litigation Reform Act, a mid-1990s law that makes it harder for inmates to proceed with their cases, imposing the grievance requirement, among other things.

The case is Smith v Dodge, a summary order issued on February 10. I am not sure an internal grievance over a prison assault will solve anything, but the Supreme Court said about a decade ago that excessive force constitute the kind of prisons conditions that are subject to the grievance requirement. 

The law does account for the possibility that an inmate will have filed a grievance but the prison will argue that no such filing occurred, and that the case should therefore be dismissed. One way for the inmate to get around this defense is to show that "prison administrators thwart[ed] inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation." The case for that is Ross v. Blake, 136 S.Ct. 1850 (2016).

Plaintiff's affidavit permits the finding that he did file a grievance but the jail did not process it. The jail denies this claim but on a motion for summary judgment, we accept non-conclusory affidavits as true. While the district court said plaintiff's affidavit was conclusory and was therefore not good enough, the Court of Appeals (Livingston, Jacobs and Lynch) disagrees, stating:

Smith alleges, inter alia, that he submitted not one but two grievances in connection with the purported assault on September 9. He further asserts that he submitted the second grievance because of his concern, after speaking with another inmate, that his first grievance would be intercepted by prison staff. Smith also claims that he contemporaneously mailed an additional copy of the second grievance to his lawyers. He specifically alleges that the second grievance was picked up by a corrections officer on September 29 and that he sent a follow up letter to prison authorities with copies of both grievances on October 15 . According to his affidavit, Smith received notice in late October that his second grievance was untimely. Smith alleges that other grievances he submitted during this period also went missing, but that he subsequently received notice that they had been received and accepted. Smith asserts that all these grievances were interfered with as a result of his repeated complaints about the September 9 incident.

While the case is remanded to the district court, we still have a factual issue on whether plaintiff filed the grievance. The district court still has to decide that issue as a factual matter. I don't want to be cynical, but the inmate has to overcome the testimony of jail officials who will deny the allegations that they had mishandled or suppressed the grievances. That's a tall order. I don't know what plaintiff did to wind up in prison, but my guess is that crime will undermine his credibility. Whether Congress took this into account when they imposed the grievance requirement under the PLRA, I know not.

 

Wrongful death case will go to jury and qualified immunity is denied, for now

This police misconduct case will go to trial because the parties dispute what happened when the police shot and killed a motorist in Troy, New York. The factual disputes prevent the police from claiming qualified immunity, the defense that normally is available when the law at the time of the constitutional violation was not clearly-established.

The case is Thevenin v. French, a summary order issued on March 15. Plaintiff's representative says the officer killed the decedent on a bridge after he refused to be arrested for suspected driving while intoxicated in the course of a low-speed chase. Plaintiff says the victim posed no threat to the police when he pulled the trigger.

Every lawsuit has a defense. In this case, the police say the officer fired the shots because the driver had used his car to pin him between the driver's car and his police vehicle, the officer heard the engine revving, and he thought he was going to die. On the basis of these factual disputes, the district court denied the officer's motion for summary judgment, and the officer appealed, invoking a rare procedure that allows a party to appeal directly to the Court of Appeals when a summary judgment motion is denied. Qualified immunity allows public officials to appeal right away when immunity is denied, in furtherance of the policy that immunity allows the defendant to avoid the lawsuit altogether if, and only if, he deserves immunity.

But a jury must decide what happened here, not a court on a motion for summary judgment. As you can see, factual disputes make it impossible for the court to resolve this case on the cold papers. We need live witnesses to tell the jury what happened. For starters, the law was clearly established at the time of this incident that the police cannot use deadly force to apprehend a fleeing motorist unless the officer has probable cause to believe that force was necessary to prevent a significant threat of death or serious injury to the officer or others. The Second Circuit cites Cowan v. Breen, 352 F.3d 756 (2d Cir. 2003), for that proposition. 

While the driver did resist arrest and took off in his car away from the police, the chase ended when the motorist's car hit a concrete barrier. At that point, an eyewitness said, the officer exited his police car and shot the driver 8 to 12 times without saying a word. The witness said the motorist's car was not moving when the officer shot him. The witness also said that, after the shooting, the motorist's vehicle began rolling forward, causing the officer to be trapped between his car and the motorist's car, and the eyewitness helped to free the officer. The Court of Appeals (Leval, Lynch and Bianco) says under this version of the facts the officer can be held liable for excessive force. 

An interesting footnote says there are also factual disputes about what happened prior to the shooting, when the officer first tried to arrest the victim. The officer who shot the driver is also dead, by the way. While there are no witnesses who can dispute the officer's version of events prior to the shooting, "plaintiff is still free to argue to the jury that French's testimony as to the earlier events should not be credited based upon other evidence in the record and/or credibility issues that plaintiff asserts exists with French's testimony as a whole." The Court cites Reeves v. Sanderson Plumbing, Inc., 530 U.S. 133, 150 (2000), for that proposition. Reeves does say that, but you don't see it quoted for that purpose very often.

Pro se case is reinstated after trial court dismissed it over technicality

This prisoners' rights case was dismissed on the ultimate technicality. The Court of Appeals brings it back, finding the district court improperly threw out the case on the basis that the inmate did not properly update the district court as to his address.

The case is Mayanduenas v. Bigelow, a summary order issued on March 16. Plaintiff brought this case pro se arising from his prison conditions. After the left jail, he was homeless. You can imagine the difficulties he had in updating the court about his address. The case was dismissed for failure to prosecute under Rule 41 after his updated address contained "a small typographical error," as the Court of Appeals (Raggi, Cabranes and Kaplan [D.J.]) puts it. Plaintiff ultimately sent the court his correct address. By then it was too late. The case was dismissed for failure to prosecute. 

When cases are dismissed for failure to prosecute, the Court of Appeals will reinstate the case only if the trial court abused its discretion. That standard of review makes it quite difficult to win the appeal. But the Second Circuit notes that a dismissal for failure to prosecute is particularly harsh result that should be utilized in extreme circumstances, especially when the plaintiff is pro se.

What saves the case for plaintiff is the fact that he was homeless, had mental health struggles, and a limited language proficiency. While the trial court did apprise him of the need to notify it of his change of address, that directive was sent to the correctional facility after plaintiff had been released from jail. Prior to his release, plaintiff had kept the court apprised of his address. And, there is no prejudice to the state in this case as a result of plaintiff's failure to comply with the court's rules, as the delay did not increase the likelihood that evidence favorable to the state in this case would have been lost because of the delay. Discovery was not even scheduled to conclude when the case was dismissed. Plaintiff's case is back on the docket. 

Disability discrimination claims under Obamacare carry a four-year statute of limitations

Did you know that Obamacare includes provisions that allow people to sue over certain forms of disability discrimination? It does. The Affordable Care Act does many things, but it also allows for certain lawsuits. Like this one. The question here is what is the statute of limitations. The answer is four years.

The case is Vega-Ruiz v. Northwell Health, issued on March 24. Plaintiff is hearing-impaired. She accompanied her brother to the hospital and requested a Spanish-speaking sign-language interpreter to help fulfill her duties as her brother's proxy as he underwent surgery. She was denied the sign-language interpreter and instead given someone who communicated to her through written notes and lip reading. 

The case does not ask whether plaintiff has a case under the ACA. The question is whether she waited too late to bring this lawsuit, three years and three months after the incident. The district court dismissed the case, holding the statute of limitations is three years because her case was made possible by the Rehabilitation Act of 1973, a disability discrimination statute which carries that deadline. 

The Court of Appeals (Newman and Pooler) says this is really an ACA case, not a Rehabilitation Act case. The ACA does not articulate a statute of limitations. In the face of such an omission, the courts look to a law that Congress passed in 1990, 28 U.S.C. 1658(a), which provides a catch-all statute of limitations for laws that don't have one. The deadline under Section 1658(a) is four years for any act of Congress that was enacted after December 1, 1990.

The Court takes the time to examine the Americans with Disabilities Act, the Rehabilitation Act and the Affordable Care Act to determine what statute really applies in this case for purposes of the statute of limitations. It looks like the ACA provides greater rights to plaintiffs than the ADA and the Rehabilitation Act. And, the Court holds that ACA plaintiffs have a different case than those brought under the ADA. That means the plaintiff has a four-year statute of limitations, and her case is timely.  

Excessive force case against Mount Vernon will go to trial

It all started when plaintiff Ketcham, a former police officer, was approached by the police on the street. The police thought plaintiff had an outstanding warrant. Not seeing their badges or identification, plaintiff thought the officers were trying to mug or abduct him, so he called out for bystanders to call the police. At that point, officer Patterson overpowered Ketcham, grabbing his wrist. Patterson then "twisted Ketcham’s arms behind his back, threw him into a nearby chain link fence, and snapped handcuffs tightly around his wrists, causing him substantial pain." When "Ketcham told Patterson that the handcuffs were hurting his wrists, Patterson ignored the complaints, and the officers then slammed Ketcham's head into the car's door frame. The police then realized they had the wrong person and they let him go.

The case is Ketcham v. City of Mount Vernon, issued on March 29. The case was dismissed on summary judgment even though plaintiff claimed the officers had used excessive force against him. Of course, the officers gave a different account of what happened. Normally, cases like this proceed to trial without the defendants even filing a motion for summary judgment, as the factual disputes are so obvious there is no way for the municipal lawyers to argue that no jury can find for the plaintiff. But such a motion as made in this case, and the district court dismissed the case. The Court of Appeals reverses and returns the case to the district court docket.

What the district court got wrong was to hold that the plaintiff suffered minimal injuries and therefore cannot proceed with his case. The district court also saw the evidence from defendant's point of view in granting summary judgment, but that was improper. The Court of Appeals (Pooler, Wesley and Carney) writes:

Drawing all inferences in Ketcham’s favor, as required when considering a summary judgment motion, a reasonable factfinder could determine that Patterson, who acknowledged he did not feel that he was in any danger, unnecessarily threw Ketcham against a wall, placed him in overtight restraints despite his protestations, and deliberately pushed Ketcham’s head into the car door. We have held in similar cases that this type of judicial evidence weighing constitutes reversible error. 

The jury can instead find, that "Patterson used unnecessary force to restrain an unresisting individual and deliberately attempted to harm Plaintiff when he was already in handcuffs." While “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates [an individual’s] constitutional rights,” cases hold that unnecessary handcuff tightening and pushing an arrestee’s head into a police car door can constitute excessive force. 

The district court also got it wrong in holding that plaintiff has no case because his injuries were minimal. The Court of Appeals provides some good language for plaintiffs' lawyers on this issue:

we have never held that a court may grant summary judgment to officers on an excessive force claim merely because the injuries were. minor even where the force was unreasonable. Any such holding would violate the rule announced in Graham and would grant a windfall to officers who commit misconduct but could escape liability based upon the hardiness of their victims. While the absence of serious injury is certainly a matter that the jury can consider in assessing both the reasonableness of the force and potential damages from any misconduct, a district court should not grant summary judgment on this basis alone.

 

8. 
   

Sex-stereotyping claim involving sexual harassment allegations fails

Fact patterns like this often reach the office of plaintiffs' lawyers. Someone over the age of 40 is fired unfairly, or so the caller says. We now have a potential claim for age discrimination. There may be more to the story, but that's the case. Turns out the extra facts are that the ex-employee was accused of sexual harassment in the workplace. Now what?

The case is Bockus v. Maple Pro, Inc., a summary order issued on March 19. Plaintiff worked for the company for 13 years. He was let go when management told him they had received complaints about "some inappropriate behavior" toward other employees, and that the investigation uncovered a "pattern of disrespectful and inappropriate conduct." Plaintiff says management never even provided him with details of these complaints, and the state Department of Labor found these allegations were "unsubstantiated." Does plaintiff have a case?

The Court of Appeals (Leval, Lynch and Bianco) says he does not. This case was dismissed under Rule 12(b)(6), and the Second Circuit has relaxed pleading standards for discrimination claims, as per Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). But even under these pleading standards, plaintiff cannot make out a plausible case of age or sex discrimination.

As for the sex discrimination, the Second Circuit in Sassaman v. Gamache, 566 F.3d 314 (2d Cir. 2009), said it is unlawful for an employer to presume that male employees were guilty of sexual harassment allegations and then to act upon that presumption, i.e., firing the man on the basis of that stereotype. I have not seen too many cases (if any) that have been sustained under the Sassaman principle, and this case fails as well. This is not a sex-stereotyping case, the Court of Appeals says, because (1) plaintiff does not allege that anyone at the company ever said or did anything that suggested the company treated men less favorably than women, and (2) his threadbare complaint "does not even identify the gender of the co-workers allegedly subject to harassment by him."

As for age discrimination, the case fails because "other than listing his age and date of birth, the complaint does not contain any allegations whatsoever relating to his age." While plaintiff contends that his "clam of bot sex stereotyping-plus-age discrimination is a claim of 'intersectional discrimination,'" the complaint simply does not allege enough facts to entitle the plaintiff to some discovery, and Being fired over the age of 40 is not enough to proceed under the Age Discrimination in Employment Act.

Evidence fabrication claim is revived on appeal as Court of Appeals says trial court misled the jury

This case implicates an unsettled area of constitutional law involving the fabrication of evidence against criminal defendants and when they can sue the police for that misconduct. The Court of Appeals holds the the plaintiff may sue the police because the criminal charge against him was dismissed in criminal court as facially insufficient, and the prosecutor ended up abandoning the charge altogether.

The case is Ashley v. City of New York, issued on March 26. The Second Circuit has long recognized the right to bring a fabrication of evidence claim. It has never held that the plaintiff must show the charges against him terminated in his favor, a necessary requirement for the different claim of malicious prosecution. But a recent Supreme Court case, McDonough v. Smith, 139 S.Ct. 2149 (2019), contains language that municipal defendants now think added the malicious prosecution-style "termination in favor of the accused" element to fabrication claims. 

In this case, the plaintiff's criminal case ended after the criminal court found the charges against the plaintiff insufficient and the prosecutor did not persist in pursuing the charge of marijuana possession. The city argues this dismissal was not a "favorable termination" because the prosecution's failure to proceed with the charge does not imply a lack of reasonable grounds to prosecute him. That language draws from "favorable termination" cases in our jurisdiction.

The Court of Appeals revives the fabrication claim following the district court dismissal without determining whether McDonough changes the landscape in adding a "favorable termination" element to these claims. Instead, it finds that, even if there is such a requirement, the jury may find the charges did terminate in plaintiff's favor because, while it was dismissed for facial insufficiency, the criminal court was super-critical of the charge, the prosecutor's second attempt at filing a clean charge was rejected, and then it abandoned the charge altogether. While facial insufficiency dismissals are not usually "favorable terminations," the problem with the prosecution's case, the Court of Appeals (Calabresi, Carney and Katzmann) says, is that the criminal court did not think the prosecution had any case against the plaintiff in the first place. 

The fabrication case originally went to trial in the Southern District. Plaintiff lost the jury verdict. But the Court of Appeals revives the claim and remands for a new trial because the jury charge was improper. The trial court told the jury that, in determining whether the police had a constitutional or fabricated basis to  arrest plaintiff for drug possession, it told the jury that paperwork errors, or mere mistakes by a police officer in making a written record, does not give rise to a constitutional violation. This was wrong, the appellate court says, because it could cause the jury to mistakenly believe "that fabrication turns in part of the severity of the error rather than simply the knowing falsity of the statement" used against the plaintiff. Since a fabrication claim only requires a knowing falsity against the plaintiff, this bad jury charge could have made a difference at trial. 

Collateral estoppel: how it works

Every dispute must end one way or another. One unhappy ending for the plaintiff is collateral estoppel, which means that a state court says something happened between the parties, the losing party in that case cannot bring another lawsuit in a different court that would challenge that initial adverse finding. So that plaintiff loses twice. This case shows us how it all works.

The case is Watley v. Department of Children and Families, issued on March 22. Plaintiffs are the parents of a child who was the subject of child neglect proceedings in Connecticut. The mother has significant disabilities, including narcolepsy, schizotypal personality disorder, antisocial personality disorder, etc. The state claimed the mother was not capable of raising the child, and sought to terminate her parental rights. The mother ultimately lost that battle. The plaintiffs then had two boys, and the state sought to terminate those parental rights under a "predictive neglect" theory, which I have never heard of but is self-explanatory. The plaintiffs lost their rights over the boys under state-law proceedings, as well. While the plaintiffs' defense to these proceedings invoked their disabilities, the state proceedings rejected those arguments on the basis that the Americans with Disabilities Act does not create special obligations in either termination or neglect proceedings. 

After the parents lost their cases in Connecticut court, they sued in federal court under the ADA and the Rehabilitation Act, claiming their rights under these statutes were violated, and they wanted a TRO to get the children back. They lost in the district court and appealed to the Second Circuit, which holds the factual findings in the state proceedings are binding on the federal court and cannot be challenged in the federal forum. 

That brings us to collateral estoppel. Under that rule, you cannot challenge state court findings in federal court when the state court resolved the same or a similar issue as the federal claim. The key to collateral estoppel is the identity of the issues in the state and federal cases. This is why the plaintiffs lose on that theory. While the state court proceedings did not consider the ADA or Rehabilitation Act defenses, they did consider the parent's mental condition in resolving this dispute. In other words, the arguments that plaintiffs advance in federal court were, for all intents and purposes, already resolved in the state court proceedings. So the plaintiffs lose.

A sad case all around, as the Court of Appeals (Pooler, Parker and Lynch) recognizes at the end of the opinion. But the Court notes that the Full Faith and Credit Clause under the Constitution compels this result and implicitly recognizes the collateral estoppel principle. 

When Rule 68 offers go wrong

I would say the most confusing rule in the Federal Rules of Civil Procedure is Rule 68. What makes the confusion even worse is that misunderstanding the rule can have huge financial consequences. Rule 68 says the defendant can serve an Offer of Judgment on the plaintiff for a sum of money that the plaintiff has 14 days to accept or reject. If the plaintiff rejects the offer and then goes to trial but recovers less money than the defendant had offered under Rule 68, then the plaintiff suffers a penalty. The rule does not make this clear, but the Supreme Court 25 years ago interpreted Rule 68 to mean the punishment requires the plaintiff to cover the defendant's costs, but not attorneys' fees, and that if the case involves fee shifting (such as an in a civil rights case), the plaintiff cannot recover any fees that accrued after the Rule 68 offer was served. It's all very complicated, and lawyers have to ensure that the Rule 68 offer is clear and unambiguous for these penalties to kick in. The offer in this case was not clear.

The case is Electra v. 59 Murray Enterprises, issued on February 9. Plaintiffs are eleven professional models and actresses whose images were used to promote what we call "Gentlemen's Clubs" in New York City. They brought eight causes of action. Plaintiffs says they did not consent to have their photos used for this purpose. As the case proceeded, the defendants served a Rule 68 offer on the plaintiffs. The offer read, that Defendants were offering "Plaintiffs collectively to take a judgment against Defendants in the amount of $82,500.00 . . . on each of the Causes of Action contained in the Complaint," inclusive of interest, attorneys fees, etc. Plaintiffs accepted the offer, claiming in their response that they were expecting $660,000.000 in the settlement checks.

You can imagine the confusion and rage among defendants' attorneys when they learned that plaintiffs had accepted the Rule 68 offer but were now demanding more than $600,000.00.  Its moments like that that cause lawyers to drink. "Where the hell do they get off demanding $660,000!" Or something like that. Plaintiffs said they $82,500 referred to each of the eight claims asserted in the lawsuit. Defendants probably responded that they never interpreted the offer to be interpreted that way. So the courts had to deal with this problem. The trial court rejected the plaintiffs' interpretation and said the were not entitled to the $660,000. The Court of Appeals (Pooler, Kearse and Calabresi) agrees and finds against the plaintiffs. 

The problem with the Rule 68 offer is that it was ambiguous. The Rule 68 process requires that the parties have a meeting of the minds, as the offer is would create a contract between the parties. Here is the ambiguity: while the Rule 68 offer said the plaintiffs "collectively" would take judgment in the amount of $82,500.00 . . . on each of the Causes of Action," the offer was unclear as to the amount of the settlement. The offer was "reasonably susceptible to more than one interpretation because the word 'collectively' contradicts the use of the word 'each.'" The Court concludes, "An offer that states a dollar amount to be specified in the judgment but does so using language that would permit the defendant to argue later that the offer was for a different amount has no Rule 68 validity."

The Court then adds another gloss to this case: that even if a Rule 68 contract had somehow been formed calling for a judgment in the amount of $660,000, the Court would find that defendants would have been able to avoid the contract on the basis that the offer had a unilateral mistake. Under settled contract law principles, "where a mistake of one part at the time of a contact was made as to a basic assumption on which he made the contract has a material effect  . . . that is adverse to him, and the other party had reason to know of the mistake, the contract is . . . voidable by him." That principle works to defendants' advantage because, during settlement negotiations that predated the Rule 68 offer, it was clear the parties were not going to settlement in the high six-figures, and defendants then told plaintiffs they were going to serve a Rule 68 offer in the amount they had previously offered in settlement negotiations, which was $82,500. So plaintiffs knew the Rule 68 offer couldn't have been for $660,000.

Second Circuit scales back the scope of the Fair Housing Act

The Court of Appeals holds en banc that the Fair Housing Act of 1968, which aims to eliminate racial discrimination in housing, does not allow a tenant to sue the landlord over his deliberate indifference to racial harassment committed by another tenant. The rare en banc vote was 7-5.

The case is Francis v. Kings Manor, issued on March 25. Francis lived in an apartment complex in Suffolk County. His neighbor targeted Francis for horrible racial harassment that eventually got the neighbor arrested for aggravated harassment. Francis complained on multiple occasions to the landlord about this abuse, but the landlord did nothing, though it did handle other non-race-related disputes among tenants on other occasions. 

This case reaches the Court of Appeals on a Rule 12(b)(6) posture, so there is no discovery yet, just the pleading. The majority says the FHA cannot provide a remedy because, unlike racial harassment in the workplace, landlords do not have the "substantial control" over tenants that employers have over employees. Judge Cabranes, writes, "We are hard-pressed to presume that an employer's manner and degree of control over its agent-employees is equivalent to that of a landlord over its tenants." Not only do "most employers have ready access to, effective control over, and the ability to move within, the physical workspace and can freely dismiss at-will employees," and they can monitor and investigate employees to remediate misconduct, the same cannot be said about landlords. In addition, 

New York tort law has long been clear that a landlord has no general duty to protect tenants even from “the criminal acts of yet another tenant, since it cannot be said that [a] landlord ha[s] the ability or a reasonable opportunity to control [the offending tenant]” and the “power to evict cannot be said to . . . furnish” such control. 

Judge Lohier writes the main dissent, having written the majority decision in this case a few years ago that the en banc ruling now reverses. After reviewing the extent of the racial harassment visited upon plaintiff and the landlord's indifference to his complaints, Judge Lohier notes that under the minimal pleading requirements in civil rights cases in the Second Circuit, plaintiff states a case in part because he alleges the landlord had authority to counsel, discipline and evict the harasser and it had intervened in other disputes among tenants. The lease gives the landlord authority to control bad tenants, and in this case we are not talking about a loud stereo but criminal activity that got the harasser arrested. Plus, we have the warranty of habitability that state law imposes on landlords to ensure the tenants have a safe living environment. 

En banc rulings in the Second Circuit are rare. The last civil case that the entire court took up was Zarda v. Altitude Express, where the Court held for the first time that sexual orientation discrimination is a form of sex discrimination under Title VII, a ruling that the Supreme Court upheld in Bostock/Zarda in 2020. That en banc case was heard in 2017. If you are keeping score, the lineup in the Francis case is as follows: of the seven judges in the majority, one was appointed by a Democrat (Cabranes), one was appointed by George W. Bush (Livingston) and five were appointed by Trump (Bianco, Nardini, Menashi, Sullivan and Park). All the dissenters (Chin, Lohier, Pooler, Katzmann, and Carney) were appointed by Democratic presidents.