New York Court of Appeals says defendant not entitled to represent himself after telling trial court he would "love to go pro se"

The New York Court of Appeals is a collegial court where the judges treat the lawyers cordially at oral argument and write opinions and dissents that are straight from the judicial opinion-writing handbook. This is the rare case where anger filters into a dissenting opinion.

The case is People v. Duarte, issued on February 15. The criminal defendant appeals from his conviction for forcible touching because, he claims, the trial court ignored his request to represent himself rather than proceed with his assigned counsel, whom he said was not paying attention to the case. During a colloquy with the judge on this issue, the defendant said, "I would love to go pro se." Yet the trial court did not allow defendant to proceed without a lawyer. The Court of Appeals votes 4-2 in holding that the record as a whole "did not reflect a definitive commitment to self-representation that would trigger a searching inquiry by the trial court."

The Appellate Term said this about the pro se issue:

Rather than being unequivocal, defendant's expression of a desire to represent himself came within the context of his complaints about his counsel. In any event, defendant abandoned his request by proceeding with the scheduled suppression hearing and subsequent trial without expressing any further desire to represent himself 

The Court of Appeals agrees with that analysis, but Judge Rivera dissents, joined by Judge Wilson. Rivera opens her dissent with defendant's quotation, "I would love to go pro se." She adds:

The import of these seven words is obvious: defendant wanted to represent himself. Under People v. McIntyre, 36 N.Y.2d 10 (1974), this clear and unequivocal statement required an inquiry by the court into defendant's request. Here, that inquiry could have been as brief as asking defendant a single question confirming that he meant what he said. Contrary to the majority's suggestion, defendant, unlike the court, did not need to say or do anything else. Once defendant invoked his constitutional right to self-representation, it was for the court to inquire whether his decision was made knowingly and intelligently. The court's failure to do so constitutes reversible error. Therefore, I dissent and would reverse and order a new trial. And in case there is any doubt as to my intent, let me repeat: I dissent, unequivocally and without hesitation.

In response to Judge Rivera's dissent, the majority says in a footnote that the relevant facts are disputed.  We consider the totality of the circumstances in reviewing these issues, including the defendant's conduct, manner of expression, demeanor, and word choices. "Whether defendant’s statement was an unequivocal request in the context of the Sixth Amendment is determined by the facts of the surrounding circumstances in the case as well as defendant’s conduct, including manner of expression, demeanor, and word choices. This record demonstrates that the court did not clearly deny the purported request, and neither defendant nor defense counsel sought any decision on that issue from the court at any point in the proceedings. Both factors suggest that the request was not considered genuine in the first instance by those present in the courtroom who heard the statement."

Plaintiff can win her racial demotion claim under Title VII but not Section 1983

The plaintiff in this case was demoted and she claims it happened because of her race. As I write in this blog post, the district court granted summary judgment on this claim but the Court of Appeals reinstated it, finding that, despite the supervisor's concerns about plaintiff's job performance, the fact that the supervisor told plaintiff she had to "deal with" a coworker's racial comments allows the jury to find that racial discrimination motivated the demotion. But that was on the Title VII claim. Plaintiff also asserted a Section 1983 claim. While this evidence is enough to win under Title VII, the Court says, it is not enough to win under Section 1983, which also prohibits racial discrimination in employment.

The case is Milord-Francois v. New York State Office of the Medicaid Inspector General, a summary order issued on February 17. How can the case survive summary judgment under Title VII but not Section 1983? Because under Title VII, the plaintiff only has to show that race was a motivating factor in the adverse decision. That allows plaintiffs to win even if race was not the determining factor; race only needed to play a role in the decision. But while Title VII codifies the "motivating factor" test, Section 1983 does not. Under that statute, which allows you to sue government officials for constitutional violations, the plaintiff has to show that racial (or gender, etc.) discrimination was the "but-for" or determinative reason. 

It's a fine line separating "motivating factor" and "but-for" causation, and the Court of Appeals did say a few years ago that summary judgment is not really the place to distinguish these two causation standards and that we should leave that task to the jury. In Kwan v. Andalex, the Circuit said the but-for analysis is similar to the pretext analysis in motivating-factor cases: "A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action. From such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason." 737 F3d 834, 846 (2d Cir. 2013). 

The Kwan language is good for plaintiffs, but the Court of Appeals does not refer to it here. It finds instead that while plaintiff has evidence to show that racial stereotyping was a motivating factor, it was not a determining factor. The reasoning:

Milord-Francois has failed to show that racial stereotyping “played a decisive role” in her demotion, such that she can establish “but-for” causation, as required for a § 1983 claim. Indeed, she failed to show that Daniels-Rivera’s proffered reason for her demotion—poor performance—was false and inadequate, especially given that Defendants put forward significant evidence that Daniels-Rivera’s decision to demote Milord- Francois was based on perceived deficiencies in Milord-Francois’s work rather than any racial considerations. Daniels-Rivera started providing negative feedback before Milord-Francois told her in May 2016 about the interactions between Milord-Francois and Henzel. Moreover, Daniels- Rivera’s criticisms were frequent, documented, thorough, and unrelated to Milord-Francois’s race.

Title VII demotion claim is reinstated after supervisor tells Black plaintiff to "deal with" co-worker's racial comments

The Court of Appeals in this case reinstates a racial discrimination claim, one of the few cases of late where the Second Circuit finds that the employer's reason for the plaintiff's adverse action is a pretext for discrimination.

The case is Milord-Francois v. New York State Office of the Medicaid Inspector General, a summary order issued in February 17. Plaintiff is a Black lawyer who worked for a state agency. She was a senior attorney who was eventually promoted to Associate Attorney. A White colleague, Henzel, made racial comments, summarized by the Court of Appeals (Nardini, Perez and Park) as follows:

While Milord-Francois was a Senior Attorney, Henzel once loudly asked Milord-Francois if she was “getting drugs in there?” when Milord-Francois entered a colleague’s office for an aspirin. Henzel then told everyone at the office “that she was concerned about [Milord-Francois] taking drugs.” Another time, during a ticker tape parade in front of the OMIG building, Henzel approached Milord-Francois “out of the blue” and said, “oh my God, your black face, your black face scares me.” Lastly, Milord-Francois stated that she overheard Henzel telling other workers that she had to go to a funeral in Harlem and, if she did not return, then “they” killed her, which Milord-Francois understood to refer to black residents in Harlem.

Plaintiff reported these comments to General Counsel Daniels-Rivera, who is also Black. After plaintiff told Daniels-Rivera that Henzel "uses racial slurs towards me," Daniels-Rivera replied, "as a manager, you have to accept it -- as a manager, I have dealt with it. . . . [Y]ou have to deal with it." Later that year, Daniels-Rivera demoted plaintiff back to Senior Attorney, citing what Daniels-Rivera claimed were plaintiff's performance deficiencies. When plaintiff told Daniels-Rivera that she had not told her there was anything wrong with her work, Daniels-Rivera said there was "nothing wrong with your work, but she "wasn't implementing my vision."

On the Title VII demotion claim, the Second Circuit deems it a close case but finds plaintiff has made out a prima facie case because of Daniels-Rivera's statements to "accept" and "deal with" the racial comments. The Court reasons:

Although those statements may very well have been intended to convey to Milord-Francois nothing more than a view that she had a responsibility as a manager to address racially charged comments by a subordinate, there is just enough ambiguity in those statements—given the particular facts of this case, and viewed in the light most favorable to the non-moving party—to create a genuine issue of material fact as to whether Daniels-Rivera was instead perpetuating a racial stereotype by suggesting that Milord-Francois, as a black woman, should ignore racism.

The key to this reasoning is the ambiguity. Maybe Milord-Francois was perpetuating a racial stereotype, but maybe she was not. The Court cannot tell on a cold record. So the jury will make that decision. Plaintiffs' lawyers often try to avoid summary judgment by claiming the evidence was sufficiently ambiguous to send the case to the jury, but I do not see the Second Circuit accepting that argument very often. It does so here.

That brings us to pretext. If the plaintiff makes out a prima facie case of discrimination and the employer says the plaintiff was demoted (or fired) for a neutral reason, the plaintiff can win by showing that reason is a pretext for discrimination. I do not see too many Second Circuit cases these days holding the plaintiff has satisfied her burden on pretext, but the Court says plaintiff can do so at trial. It's the "deal with it" and "accept" the racial statements comment that does it. The Court reasons:

Milord-Francois raises several arguments as to why a jury could conclude, by a preponderance of the evidence, that this reason was pretextual. We are unpersuaded by most of Milord-Francois’s arguments, but viewing the evidence in the light most favorable to the non- moving party, we conclude that there is a genuine issue of material fact as to what Daniels-Rivera meant when she told Milord-Francois to “accept” and “deal with it.” Milord-Francois has “raised sufficient evidence upon which a reasonable jury could conclude by a preponderance of the evidence” that Daniels-Rivera’s reason for demoting her is pretextual, and that this decision “was based, at least in part,” on her race. 

 

District court upholds $100,000 in punitive damages on sexual harassment claim

This sexual harassment case went to trial in federal court in Connecticut in November 2021. The plaintiff prevailed at trial, winning $10,000 in compensatory damages and $100,000 in punitive damages. The trial court upholds the verdict and the punitive damages, rejecting the defendant's post-trial motions.

The case is Champagne v. Columbia Dental, PC, 2022 WL 168967, issued by Judge Bryant on January 19. We don't have a summary of the facts adduced at trial on the hostile work environment, but the trial court does list the allegations in the complaint, which I assume the plaintiff proved at trial:

Here, Stanko threw and punched items in the office, and yelled and cursed during the course of Plaintiff's employment. He also addressed Plaintiff as his `hot assistant' and his `daytime wife,' and massaged her shoulder several times. He engaged in arguably misogynistic conduct, namely forcefully grabbing her hand to force a tube into a patient's mouth, and jamming a drill into her hand, puncturing her glove, and angrily telling her to hold it in place. Plaintiff complained to district manager Ochrim who did not address or attempt to remedy the issue. Plaintiff told Ochrim that because of Stanko's behavior, she could not go back to work with him. In response, Ochrim advised Plaintiff that if she did not work with Stanko then she would not have a job. On another occasion, Plaintiff complained and Ochrim focused on her parental status responding, `ok, but it's a job' and `you do have kids.' Plaintiff mentioned to other employees that because of Stanko's conduct her `anxiety was through the roof.'

While the district court held on the motion to dismiss that "None of these instances taken alone give rise to the conclusion that Plaintiff's work environment was permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe to alter the conditions of her employment and create a hostile or offensive work environment," when taken in the aggregate, the jury could find she subjectively perceived the environment to be hostile and that her mistreatment was based on her gender." And that's what happened, as proven by the verdict, which includes a successful constructive discharge claim, which plaintiffs rarely win because the legal standard is so high that these claims are usually dismissed on the summary judgment motion. Again, we don't have the trial evidence in this ruling, but the harassment must have been awful for plaintiff to quit and for the jury to find that she had no choice but to resign. Defendant does not even challenge the constructive discharge verdict on the post-trial motion. That concession in many ways is fatal to the post-trial motion: if the trial loser concedes an important part of plaintiff's successful verdict, it is hard to show the verdict in other respects was unjust.

Post-trial, the employer wants the court to take away the verdict, arguing that the jury had no factual basis to find that plaintiff had complained about the sexual harassment, a necessary prerequisite to winning any such claim. Since plaintiff testified that she told the office manager about the harassment, as well as the scheduling supervisor of dental assistants, it does not matter if plaintiff did not follow the reporting procedure to the letter. Here is where the trial judge expresses outrage over the defendant's argument:

Defendant's argument that Plaintiff's informing four of its employees about Dr. Stanko's harassment, two of which were office managers and one of which, Jolanta Ochrim, had responsibility for "safety," constitutes insufficient notice, is callous in the extreme. What Defendant is arguing is that no matter how egregious the sexual harassment, and no matter who the victim informed, a plaintiff's hostile work environment claim must fail if the technicalities of the employer's sexual harassment policy are not followed to the letter, and, in fact, failure to grant Defendant judgment as a matter of law in such a case would constitute "manifest injustice." The Court refuses to countenance such a result, especially considering Defendant's failure to even provide its sexual harassment policy to Dr. Stanko or train him on it.

 Defendant also wants the court to reject the punitive damages award. No dice, says the court. 

First, Defendant's ignoring of Plaintiff's complaints of sexual harassment to four different employees of Defendant, at least two of whom had supervisory responsibilities and one of whom was responsible for, inter alia, "safety," could have been seen by the jury as malicious or recklessly indifferent to Plaintiff's rights, especially since the reports occurred over a six-month period from October 2016 to March 2017. Second, the argument that Defendant's sexual harassment policy immunized it from an award of punitive damages rings hollow, especially in this case where Defendant failed to even provide it to the very person who inflicted the hostile work environment on Plaintiff. Third, the argument that Defendant is not liable for punitive damages because it, or its supervisory employees, did not know that an actual hostile work environment could constitute a violation of Title VII is meritless.

As for the amount of the punitive damages award -- $100,000 -- that falls within the reasonable range of punitives for cases like this. In Cush-Crawford v. Adchem Corp., 271 F.3d 352 (2d Cir. 2001), the Court of Appeals upheld a $100,000 punitive damages award in a sexual harassment case. 

 

Here, Stanko threw and punched items in the office, and yelled and cursed during the course of Plaintiff's employment. See [Dkt. 15 at ¶¶ 19-20]. He also addressed Plaintiff as his ‘hot assistant’ and his ‘daytime wife,’ and massaged her shoulder several times. He engaged in arguably misogynistic conduct, namely forcefully grabbing her hand to force a tube into a patient's mouth, and jamming a drill into her hand, puncturing her glove, and angrily telling her to hold it in place. Id. at ¶¶ 21-22 & 30. Plaintiff complained to district manager Ochrim who did not address or attempt to remedy the issue. Id. at ¶¶ 40-41. Plaintiff told Ochrim that because of Stanko's behavior, she could not go back to work with him. In response, Ochrim advised Plaintiff that if she did not work with Stanko then she would not have a job. Id. ¶ at 29. On another occasion, Plaintiff complained and Ochrim focused on her parental status responding, ‘ok, but it's a job’ and ‘you do have kids.’ Id. at ¶ 43. Plaintiff mentioned to other employees that because of Stanko's conduct her ‘anxiety was through the roof.’ Id. at ¶ 32.

*2 None of these instances taken alone give rise to the conclusion that Plaintiff's work environment was permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe to alter the conditions of her employment and create a hostile or offensive work environment. However, when taken in the aggregate, a reasonable fact finder could determine that the Plaintiff subjectively perceived the environment to be hostile and that her mistreatment was based on her gender.

Champagne v. Columbia Dental, P.C., No. 3:18-CV-01390 (VLB), 2022 WL 168967, at *1–2 (D. Conn. Jan. 19, 2022)

Stanko threw and punched items in the office, and yelled and cursed during the course of Plaintiff's employment. See [Dkt. 15 at ¶¶ 19-20]. He also addressed Plaintiff as his ‘hot assistant’ and his ‘daytime wife,’ and massaged her shoulder several times. He engaged in arguably misogynistic conduct, namely forcefully grabbing her hand to force a tube into a patient's mouth, and jamming a drill into her hand, puncturing her glove, and angrily telling her to hold it in place. Id. at ¶¶ 21-22 & 30. Plaintiff complained to district manager Ochrim who did not address or attempt to remedy the issue. Id. at ¶¶ 40-41. Plaintiff told Ochrim that because of Stanko's behavior, she could not go back to work with him. In response, Ochrim advised Plaintiff that if she did not work with Stanko then she would not have a job. Id. ¶ at 29. On another occasion, Plaintiff complained and Ochrim focused on her parental status responding, ‘ok, but it's a job’ and ‘you do have kids.’ Id. at ¶ 43. Plaintiff mentioned to other employees that because of Stanko's conduct her ‘anxiety was through the roof.’ Id. at ¶ 32.

*2 None of these instances taken alone give rise to the conclusion that Plaintiff's work environment was permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe to alter the conditions of her employment and create a hostile or offensive work environment. However, when taken in the aggregate, a reasonable fact finder could determine that the Plaintiff subjectively perceived the environment to be hostile and that her mistreatment was based on her gender.

Champagne v. Columbia Dental, P.C., No. 3:18-CV-01390 (VLB), 2022 WL 168967, at *1–2 (D. Conn. Jan. 19, 2022)

Circuit reinstates criminal case following vehicle search which produced an illegal gun

It is unusual to see a federal court grant a motion to suppress on Fourth Amendment grounds. There are many exceptions to the general rule that warrantless searches are illegal. In this case the district court held a police search had unlawfully uncovered an illegal handgun, and the indictment was dismissed. The Court of Appeals disagrees and the case returns to the criminal docket.

The case is United States v. Patterson, issued on February 4. After the police in Northern Westchester got a 911 call that two black men in a black Camaro had menaced a woman and displayed a handgun in the ShopRite parking lot, the police headed to the neighborhood and began following a black Camaro leaving the ShopRite parking lot and turning onto Route 6. The officers stopped the vehicle at a gas station, blocked the Route 6 entrance point, pointed their firearms at the driver and occupant of the car, told them to exit the vehicle, and saw the driver (Patterson) reaching around the car's interior as if he were trying to hide something. Patterson then ran away and jumped over a fence to hide in the woods. The police eventually got Patterson and the passenger and found a gun in the glove compartment. That gun is the basis for the criminal prosecution.

The district court granted the motion to suppress the gun because the officers lacked probable cause to detain the motorists. The fact that the police saw a black Camaro within 10 minutes of dispatch was not enough to believe the occupants had committed a crime. Since that unlawful stop ultimately led to the gun seizure, the seizure was illegal, the district court said. The trial court, Judge Seibel, "did not 'discourage'" the government from taking up this appeal, which it did.

The Court of Appeals (Raggi, Lynch and Park) says the whole thing was legal under the Fourth Amendment because the police were allowed to make an investigatory stop upon seeing the black Camaro under the less stringent "reasonable suspicion" standard. Under the totality of the circumstances, it was simply too coincidental to think the black Camaro had nothing to do with the gun menacing, in part because cars like this are rarely seen on area roads (if this were Long Island in the 1980s, it might be a different story, as these cars were issued upon high school graduation), and the guys were in the same neighborhood as the 911 call. The Camaro had two black men inside, just as the 911 call had stated. The police could at least stop and ask questions.

Moreover, the force used to conduct the stop was reasonable under the circumstances and not excessive as the stop was short in duration, used the least intrusive means as the police thought the occupants might be armed and dangerous in light of the 911 call. And let's face it, Patterson did not help his case by running away when the officers tried to handcuff him. As for the search of the Camaro, that was legal also, as the police by now had probable cause to think they would find evidence of criminal activity.

The district court thought this was a close case, which is why it suggested an appeal might not be a bad idea. The scholarship in this case shows us how complicated Fourth Amendment jurisprudence really is.  What it means for Patterson is he must return to federal court to answer for these charges, three years after the arrest.

Court awards $500,000 in punitive damages award in brutal inmate beating

The jury awarded the state prisoner $50,000 in compensatory damages for his beating at the hands of three Fishkill Correctional Facility guards. The jury also awarded punitive damages awards in the amount of $950,000, divided among the three defendants. The district court last week finds punitive damages are warranted but remits the award to $500,000, throwing in some choice words about the officers and the state's willingness to cover the punitive damages for this unprovoked act of violence.

The case is Magalios v. Peralta, SDNY No. 19-CV-6188, 2022 WL 407403, decided on February 10. After an officer yelled at plaintiff for greeting his wife with a hug and kiss during visitation (the rules allow for such an embrace), the three guards attacked him after removing any witnesses from the room and "brutally kick[ing] and punch[ing]" him for 30 to 60 seconds while a guard held plaintiff down. Plaintiff had bruise marks all over his body, "including a mark in the shape of a boot print." We have a formula for assessing punitive damages awards, including whether the ratio between compensatories and punitives is too high, whether the amount is consistent with any criminal penalties, and awards in similar cases. This formula upholds the punitive damages awards in this case, but there are some notable parts of the district court's ruling.

First, a $1 million civil rights verdict is quite uncommon, particularly when most of the money is through punitive damages. $950,000 in punitives creates an unhealthy ratio with the $50,000 compensatory damages, potentially threatening the award and commanding a remittitur or new trial. At least that's what the state says. But Judge Seibel says the real way to assess the ratio is to look at the compensatory damages in comparison to the individual punitive damages awards. So instead of $50,000:$950,000, it's $50,000:$350,000, and the same formula for the $250,000 punitive damages awards against the other officers. Other district courts have done it this way. This framework takes into account how plaintiff's compensatory damages are joint and several among the three defendants, and punitives punish a particular defendant. From this angle, the proper ratio is 7:1, 5:1 and 5:1, within due process standards as defined by the Supreme Court. It looks like the Second Circuit has yet to address this issue. Under this formula, the $950,000 is still too high, so Judge Seibel reduces the overall punitives to $500,000.

Second, this decision is notable for the district court's discomfort with the officers' behavior and the litigation strategy pursued by the Attorney General. I rarely see language like this in court rulings. Judge Seibel "find[s] it disturbing that Defendants' counsel would argue 'there is no evidence in the record that Defendants acted maliciously or wantonly to support a punitive damages award'" or that the actions were not sufficiently reprehensible to warrant a high punitive damages award. The judge writes that "Counsel's obligation to advocate for their clients does not require them to bury their heads in the sand or to risk their own credibility." The court also notes the officers lied on the witness stand and tried to cover up their misdeeds in creating false records. They also gave "laughable" testimony at trial. All of this factors into the punitive damages analysis. 

Finally, Judge Seibel is wondering why the state might cover the punitive damages award rather than make the officers pay it themselves, openly encouraging state policymakers to adopt the latter approach as a means to let other officers know that beatings like this will not be tolerated and will personally cost them. If the state covers the damages, the plaintiff will get his money. If the officers have to pay these damages, they will probably go bankrupt or lay out the money under some payment plan. We always assume that the employer covers all damages, including punitives, but this is the second time in two years that I have seen a federal judge from the White Plains courthouse question such indemnification (the first time involved a similar case that I worked on, Anderson v. Osborne, which Judge Seibel cites in support of the damages award). The district court closes out with this statement:

The jury's verdict here sent a strong message about what the community thinks about the use of excessive force by correction officers against the inmates in their care. The members of the jury were plainly disgusted by Defendants’ conduct, and they would likely be equally disgusted if they learned that Defendants were to suffer no professional or financial repercussions from their actions and that the taxpayers of New York State were instead going to satisfy Plaintiff's judgment. Further, I cannot think of a more effective tool for deterring future misconduct than a correction officer, who has been found to have engaged in wanton or malicious violation of constitutional rights, having his wages garnished or losing his savings or real property.

Connecticut's prohibition against pornography in the prisons does not violate First Amendment

The State of Connecticut in 2012 overhauled its policies guiding when inmates can possess sexually-explicit materials. The corrections people issued guidelines which First Amendment advocates then challenged in court. The Court of Appeals holds these guidelines do not violate the First Amendment.

The case is Reynolds v. Quiros, issued on February 3. Prior to these guidelines, inmates had all sorts of pornography in their cells, which caused discipline and other problems in the jails, what the Second Circuit calls a "very sexually charged environment." Under the new rules, enacted after considerable deliberation and study, there is a total ban on pictorial depictions of sexual activity and nudity. But you can possess sexual images if the material, taken as a whole, has literary, artistic, educational, or scientific value. Written material can be banned if it poses a threat to security, good order, or discipline, or it facilitates criminal activity.

The trial court held a lengthy hearing on how these new rules were implemented. It held the rules do not violate the First Amendment. The Court of Appeals affirms. Yes, inmates have some First Amendment rights, but they are limited to ensure security and order in the jails. Courts will defer to the judgment of prison officials in making these determinations. The ultimate test is "reasonableness," which gives these officials the benefit of the doubt and usually means the plaintiffs lose, as "reasonableness" is the lowest level of constitutional review, as per Supreme Court case law.

The Second Circuit (Bianco, Kearse and Cabranes) agrees with the district court, finding that (1) the corrections system had a legitimate need to restrict sexually-charged materials to avoid a hostile work environment for the staff (the evidence on this point is pretty disgusting); (2) these restrictions prevent fights among inmates and reduce inmate aggression overall; (3) these restrictions help in rehabilitating sex offenders; (4) the new rules are sufficiently neutral to satisfy Supreme Court standards (such as in Turner v. Safley (1987), still the go-to case on inmate speech issues; (5) and the standards are not too vague to be unenforceable. 

Plaintiff's lawyers in social security benefits case gets their full attorneys' fees

The Court of Appeals is not happy that the lawyers in this case was not properly compensated for his work in winning his client's social security disability benefits. That's how the Court of Appeals opens this rare decision that reverses a lower tribunal's attorneys' fees ruling. Hey, plaintiffs' lawyers: the Court wants us to get paid! At least in certain social security cases.

The case is Fields v. Kijakazi, issued on January 28. Most who handle civil rights cases know the general rule guiding fee applications. After the plaintiff wins, her lawyer files a fee application, generally multiplying the hours expended on the case by the hourly rate, with some adjustments for overwork, vague billing entries, etc. We call that the lodestar equation. In social security cases, the formula is different, allowing the lawyer up to 25% of the overall recovery. There is no lodestar in social security cases; courts instead ask whether the attorney is getting a "windfall." The Supreme Court endorsed this test in Gisbrecht v. Barnhart (2002). Since there is not much guidance on the windfall question, the Court of Appeals (Calabresi, Parker and Pooler) "make[s] clear that the windfall factor does not constitute a way of reintroducing the lodestar method."

The lawyer in this case, the lawyers spent 25.8 hours in winning his client's case. The Court notes that less-experienced attorneys might have spent twice the amount of time on the case. So, while the attorneys fees amount to more than $1,500 per hour, that is not really a windfall, as "it would be foolish to punish a firm for its efficiency and therefore encourage inefficiency." The lawyers were also "particularly successful" in this case, winning their client a six-figure awards "after the government fought long and hard to keep him from recovering anything." Nor did the client object to the fee award, which comes out of his recovery. Plus, the Court says, this case was always uncertain, and lawyers who handle cases on contingency, "even the very best ones" will "lose a signifiant number of cases and receive no compensation when they do." Victory in this case was no sure thing, as shown by the fact that it was denied multiple times at the agency level before the plaintiff finally won his benefits.

You know where the Court of Appeals is going with this. While plaintiff's lawyers wanted about $40,000 in attorneys fees, the federal court only gave them about $19,000, deeming the $40,000 amount a windfall. But that ain't no windfall, the Second Circuit holds, and the lawyers will get what they deserve.

Wrongful death case will go the jury

There's a reason why the Appellate Divisions in Brooklyn and Manhattan have 20 cases on the calendar each day and the U.S. Court of Appeals has a fraction of that: in state court, you can appeal anything at any time, but in federal court, any court rulings cannot be appealed until the court enters a final judgment, years after the case was originally filed. There is an exception to that rule in federal court, as shown in this wrongful death case.

The case is Scism v. Ferris, a summary order issued on February 1. Ferris is a detective for the City of Schenectady. He and a partner, Kent, were sitting in an unmarked van by plaintiff's residence, preparing for an undercover drug buy. Believing they were up to no good, plaintiff told the guys in the van he did not want anyone selling drugs in his neighborhood. When plaintiff walked away, the van guys saw that plaintiff had a gun. Moments later, defendant fired his gun at plaintiff. This is where they factual disputes come in, which is why the trial court denied defendant's motion for summary judgment. The trial court wrote:

there is contradictory evidence regarding Scism's final acts. To that end, Kent testified that he saw Scism start to make a move towards Ferris with his gun in his hand. (Dkt. No. 95-32 at ¶ 25.) Ferris, likewise, testified that he saw Scism stop running, grab his handgun with his right hand, pull it out of his waistband, and begin to turn towards him. (Dkt. No. 95-27 at ¶ 27.)³ The CI, on the other hand, testified that he did not see Scism turn or make any movement towards Ferris or Kent before he was shot. (Dkt. No. 102-7 at 11-14, 47, (the CI Deposition transcript, currently filed under seal).) Furthermore, the medical evidence demonstrates Scism was struck in the back of his head and the medical examiner testified that it would be “extremely unlikely” that it would have hit the back of his head if he had been facing Ferris shortly before he was shot.

Scism v. City of Schenectady, No. 1:18-CV-672 (TWD), 2021 WL 4458819, at *2 (N.D.N.Y. Sept. 29, 2021)

there is contradictory evidence regarding Scism's final acts. To that end, Kent testified that he saw Scism start to make a move towards Ferris with his gun in his hand. (Dkt. No. 95-32 at ¶ 25.) Ferris, likewise, testified that he saw Scism stop running, grab his handgun with his right hand, pull it out of his waistband, and begin to turn towards him. (Dkt. No. 95-27 at ¶ 27.)³ The CI, on the other hand, testified that he did not see Scism turn or make any movement towards Ferris or Kent before he was shot. (Dkt. No. 102-7 at 11-14, 47, (the CI Deposition transcript, currently filed under seal).) Furthermore, the medical evidence demonstrates Scism was struck in the back of his head and the medical examiner testified that it would be “extremely unlikely” that it would have hit the back of his head if he had been facing Ferris shortly before he was shot.

Scism v. City of Schenectady, No. 1:18-CV-672 (TWD), 2021 WL 4458819, at *2 (N.D.N.Y. Sept. 29, 2021)

there is contradictory evidence regarding Scism's final acts. To that end, Kent testified that he saw Scism start to make a move towards Ferris with his gun in his hand. (Dkt. No. 95-32 at ¶ 25.) Ferris, likewise, testified that he saw Scism stop running, grab his handgun with his right hand, pull it out of his waistband, and begin to turn towards him. (Dkt. No. 95-27 at ¶ 27.)³ The CI, on the other hand, testified that he did not see Scism turn or make any movement towards Ferris or Kent before he was shot. (Dkt. No. 102-7 at 11-14, 47, (the CI Deposition transcript, currently filed under seal).) Furthermore, the medical evidence demonstrates Scism was struck in the back of his head and the medical examiner testified that it would be “extremely unlikely” that it would have hit the back of his head if he had been facing Ferris shortly before he was shot.

Scism v. City of Schenectady, No. 1:18-CV-672 (TWD), 2021 WL 4458819, at *2 (N.D.N.Y. Sept. 29, 2021)

there is contradictory evidence regarding Scism's final acts. To that end, Kent testified that he saw Scism start to make a move towards Ferris with his gun in his hand. Ferris, likewise, testified that he saw Scism stop running, grab his handgun with his right hand, pull it out of his waistband, and begin to turn towards him. The [confidential informant] on the other hand, testified that he did not see Scism turn or make any movement towards Ferris or Kent before he was shot. Furthermore, the medical evidence demonstrates Scism was struck in the back of his head and the medical examiner testified that it would be “extremely unlikely” that it would have hit the back of his head if he had been facing Ferris shortly before he was shot.

Ferris moved for summary judgment on qualified immunity grounds, claiming he acted reasonably in firing his gun, but that motion failed in the district court, which reasoned that "there are genuine issues of material fact regarding the reasonableness of Ferris's use of force."

Ferris appeals, but the Court of Appeals agrees he cannot win qualified immunity at the moment. There was no final judgment, but an immunity appeal can be taken before the case ends, on the theory that if you really are immune from suit, then making the officer go to trial is a waste of time. Problem is that you don't get qualified immunity if the jury resolves the evidence in a way that shows the officer did not act reasonably. That's the case here. 

The Second Circuit (Lohier, Leval and Perez) says it has jurisdiction over the appeal if the court bases its analysis "on an independent review of the record, including the district court's explanation of facts in dispute." But that review shows there really are disputed issues of fact that cannot be resolved on the papers. Since plaintiff's estate can win the case at trial, the appeal is rejected.

For you Section 1983 junkies, it does not look to me that the law is clear about when you can appeal from the denial of qualified immunity when the trial court says there are disputed issues of fact as to whether the defendant violated the law. In Lennox v. Miller, 968 F.3d 150 (2d Cir. 2020), which the Circuit cites in this case in holding that it did have jurisdiction over the appeal, the Court of Appeals said "We ordinarily do not have jurisdiction to hear an appeal of a denial of summary judgment. Nonetheless, we have appellate jurisdiction to hear an interlocutory appeal from a district court's denial of qualified immunity “to the extent it can be resolved on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find.” 

But in Franco v. Gunsalus, 972 F.3d 170 (2d Cir. 2020), the Court said "Our court . . . has sobserved, “[t]he Supreme Court has made it clear that we lack appellate jurisdiction to decide an interlocutory appeal from a district court's denial of a claim of qualified immunity to the extent that the denial involves only a question of evidence sufficiency.” For that proposition, Franco cites Swain v. Town of Wappinger, 805 Fed. Appx. 61 (2d Cir, 2020), which said, “If the District Court says the evidence was sufficient to create a jury issue, then that is the end of our review.” If you have read this far and are looking at the language in Miller and Franco closely, it may look like a divergence in qualified immunity/interlocutory appeal doctrine.

cism v. City of Schenectady, No. 1:18-CV-672 (TWD), 2021 WL 4458819, at *2 (N.D.N.Y. Sept. 29, 2021)