For Federal Rules junkies only

This is a case that only a federal litigator will love, including trial and appellate lawyers. The Supreme Court is telling us when a party that files an unsuccessful motion for summary judgment can take up those issues on appeal after losing at trial even if they fail to preserve their objection to that issue during trial. The bottom line is that purely legal issues may be raised on appeal even if the party did not assert an objection at trial.  

The case is Dupree v. Younger, issued on May 25. The decision is unanimous, which is often the case when the Supreme Court interprets the Federal Rules of Civil Procedure. 

Here is how things work in practice. You are defending a lawsuit and file a summary judgment motion, arguing that the plaintiff does not have enough evidence to win at trial. The district court denies the motion, the case goes to trial, defendant loses and then takes up an appeal, challenging the verdict on the basis that plaintiff did not have enough evidence to win the trial. Defendant cannot do that. The real appeal from the verdict will be from the trial court's ruling under Rule 50(a), as that motion for judgment as a matter of law will be based on the evidence at trial, not the summary judgment record, which by the time the case reaches trial everyone has forgotten about. So a defendant has to make that evidence-sufficiency motion at trial under Rule 50(a) and then renew that motion post-trial under Rule 50(b) if the trial judge denied the motion for JMOL at trial. 

The exception to that above rule has now been endorsed by the Supreme Court. Here is what happened. Plaintiff is an inmate who claims the correction officer assaulted him. Dupree moved for summary judgment prior to trial, claiming that plaintiff did not comply with the grievance requirements under the Prison Litigation Reform Act, which requires inmates to file an internal complaint before he proceeds in court. At trial, the jury found for the plaintiff and awarded him $700,000 in damages, which could very well make him the wealthiest man in the building. At trial, defendant did not raise the administrative exhaustion defense. But he raises that issue on appeal, claiming the trial court should have granted him summary judgment on that issue.

Plaintiff opposed that appeal, citing case law in some circuits that you cannot raise any issue on appeal that was denied on the summary judgment that you did not renew at trial. The Supreme Court agrees with the defendant correction officer and says the Fourth Circuit may in fact find that defendant did not have to renew that objection under Rule 50(a) at trial since it is possible that nothing would have happened at trial that would have further developed the record and it therefore may have been a purely legal issue.   

What it means for this case in particular is that the Fourth Circuit has consider this issue on remand. The Court of Appeals has to consider if defendant's PLRA objection is "purely legal." If it finds the issue was purely legal, and the Court of Appeals finds that plaintiff did not file the proper grievance under the PLRA, then plaintiff's verdict will disappear. 

Excessive force and false arrest verdict is upheld on appeal, but no punitive damages

The Court of Appeals has sustained a police misconduct verdict in which the plaintiff claimed a Syracuse police officer subjected him to excessive force, false arrest, and malicious prosecution. But the Court also held that plaintiff is not entitled to punitive damages for these civil rights violations.

The case is Franco v. Gunsalus, a summary order issued on May 23. I briefed and argued the appeal. Fred Lichtmacher, Esq., tried the case. The case began when Franco showed up to a party in Syracuse just as the crowd was dispersing. The officer claimed that he gave a loud order to disperse and that Franco ignored him, but Franco and his witnesses testified that no such order was given and the officer instead out of frustration over Franco's bad attitude beat him up on the street, even after Franco hit the ground. He was arrested for disorderly conduct, harassment, and resisting arrest, and the charges were ultimately dismissed. The jury found in his favor under Section 1983.

The Court of Appeals affirms the verdict as supported by the weight of the evidence. It opens this discussion by stating, "We have held that a police officer violates a clearly established Fourth Amendment right when he 'use[s] significant force against an arrestee who is no longer resisting and poses no threat to the safety of officers or others.' Moreover, it was well established in our circuit at the time of the altercation 'that the use of entirely gratuitous force is unreasonable and therefore excessive.'" To this end, the verdict is upheld only a few weeks after oral argument as the Court of Appeals (Calabresi, Menashi and Lee) do not find this case especially remarkable.

Plaintiff did ask the trial court to allow the jury to award punitive damages. The trial court said it would not do so and that it would vacate any punitive damages award were he to do so. Trial counsel expressly placed his objection on the record. Franco appealed from that ruling, arguing that excessive force, false arrest, and malicious prosecution can be sufficiently wanton and malicious to support a punitive damages award. The Court of Appeals rejects that argument on the basis that trial counsel waived his objection to the trial court's ruling and that it was not to say "I object" on the record. I have not seen this analysis much over the years, but the Court of Appeals says that under Fed. R. Civ. P. 51, the trial lawyer has to say more than simply "I object" to the rejected jury charge. Under that rule,“A party who objects to ... the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection.” Without a specific reason to request punitive damages, the Court of Appeals says, counsel's objection was insufficient. In my experience, lawyers usually just say "I object" to a trial court's jury charge, but under this analysis, we have to amplify our objections.

Still, even with the waiver, plaintiff could win the appeal under the plain error doctrine. That poses a higher burden of proof for the plaintiff, who must show the trial court's ruling contravened established law. The Court of Appeals finds there was no plain error. Bear in mind that the trial court in its post-trial ruling under Rule 50(b) summarized the excessive force evidence in particular this way:

at trial, various witnesses testified that Plaintiff was on the side of the road, leaning into his friend's vehicle, when Defendant Gunsalus came up from behind him and began punching Plaintiff and dragging him to the ground. In these versions of the events, Plaintiff did not pose any immediate threat to Defendants or to passersby. As examples, there was no evidence that Plaintiff had a weapon, that he verbally threatened the officers, or that he was confronting others on the street.

That sequence of events would not automatically entitle Franco to a punitive damages charge, the Court of Appeals says, for this reason:

Neither an excessive use of force nor an unreasonable belief about probable cause necessarily entitles a Section 1983 plaintiff to punitive damages. We have long held that the availability of punitive damages requires more than what is required for liability under Section 1983. “To accept [the contrary] proposition would essentially expose a defendant to an award of punitive damages for any conduct not protected by qualified immunity, and would thereby make the availability of punitive damages equal to the availability of compensatory damages. That proposition is contrary to the principles [of our Section 1983 case law].” The district court concluded that Franco had failed to identify evidence of the officers’ subjective awareness of wrongdoing. On this record, we cannot say that its determination was plainly erroneous. At trial, various witnesses testified that Plaintiff was on the side of the road, leaning into his friend's vehicle, when Defendant Gunsalus came up from behind him and began punching Plaintiff and dragging him to the ground. In these versions of the events, Plaintiff did not pose any immediate threat to Defendants or to passersby. As examples, there was no evidence that Plaintiff had a weapon, that he verbally threatened the officers, or that he was confronting others on the street.

Franco v. Gunsalus, No. 516CV634FJSTWD, 2022 WL 93570, at *5 (N.D.N.Y. Jan. 10, 2022)

Wrongful death case (and expert opinion) is reinstated

This is a wrongful death case against Correctional Medical Care, Inc. An inmate died at the Schenectady County Correctional Facility. The trial court dismissed the case after crediting the defendants' medical expert and finding plaintiff's medical expert report to be inadmissible. The Court of Appeals reverses and the case returns to the district court.

The case is Richardson v. Correctional Medical Care, Inc., a summary order issued on May 17. When the trial court excludes evidence at the pre-trial stage, the standard of review is "abuse of discretion" which is as deferential to the trial court as you can get. These appeals are tough to win, but they can be won. Plaintiff wins this appeal.

First, the trial court rejected the plaintiff's expert opinion because it was submitted in the form of an unsworn letter. Such documents are generally inadmissible under Second Circuit precedent. But in this case, the doctor reaffirmed his opinion in deposition, emphasizing that the inmate's medical history and symptomology in the days leading up to his death made it imperative that someone check the functionality of cardioverter-defilibrator. This sworn deposition cures the unsworn expert letter. As a further footnote to this holding, the deposition was unexecuted, which means the doctor did not sign it. But the court reporter, who is a notary public, did certify that the transcript is authentic. That's enough to make the the doctor's opinion admissible.

Second, while the district court held the doctor's expert opinion was not reliable under Fed. R. Evid. 702 and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the district court improperly resolved disputed issues of fact in reaching this holding. The district court did not identify any basis for concluding that plaintiff's doctor's opinion was not based on sufficient facts or data or was not the product of reliable principles and methods that were reliably applied to the facts of this case. In the end, the Court of Appeals (Raggi, Livingston, and Carney) states, neither expert offered a definitive opinion that conclusively established the case of the inmate's death. In excluding the plaintiff's expert opinion, the trial court "deprived Ms. Richardson the opportunity to present her case to the jury tasked with assessing the credibility of the parties' competing experts and determining the weight that should be afforded to their opinions."

 

Local gadfly can't sue school district over speech violations

Every community has a gadfly who writes letters to the editor and to public officials. They may be difficult and even annoying but they do represent the First Amendment in action. In North Korea, this activity might land you in jail. In America, this activity might land you in court. That's what happened here, except the Court of Appeals says plaintiff has no viable First Amendment claim.

The case is Searle v. Red Creek Central School District, a summary order issued on May 12. From August 2019 through January 2020, plaintiff repeatedly emailed faculty and administrators, questioning their competence and professionalism. In response, the district told plaintiff that for the rest of the school year, he should direct any communications to the superintendent or get permission before entering school grounds. Plaintiff then wrote an editorial for the local paper referencing that directive and calling for the superintendent's removal. This case was dismissed under Rule 12, before the parties could take any discovery. The Court of Appeals(Livingston, Raggi and Nardini) affirms.

The case was properly dismissed because, while the district told plaintiff he needed permission before he entered school property, that is not enough for a First Amendment lawsuit in the context of this case. To win the case, plaintiff has to show the directive chilled his speech or caused him some other harm. The complaint does not allege that plaintiff changed his behavior in any way in response to the directive. Note that he published an editorial against the school district shortly after the district issued the directive. Nor does he allege any other harm flowing from the directive. Key cases on chilling and other First Amendment harms in this context are Curley v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001), and Zerkha v. Amicone, 634 F.3d 642 (2d Cir. 2011).

Defense verdict in sexual orientation discrimination case is affirmed

This sexual orientation discrimination case went to trial in the Northern District of New York. The plaintiff is a corrections officer who alleges she suffered retaliation for complaining about discrimination in the workplace. That claim went to trial but the jury found for the State of New York, ruling against plaintiff. The Second Circuit affirms after rejecting plaintiff's claims that the trial court improperly excluded certain evidence that would have bolstered the claim.

The case is Orsaio v. New York State Dept. of Corrections and Community Supervision, a summary order issued on May 12. The decision issued only a few days after the case was argued on appeal, which demonstrates the Court deemed this an easy case. It may have been easy, but it contains some interesting observations about hearsay evidence in cases like this.

Plaintiff wanted the jury to know that a coworker once told her that their supervisor did not like her because she is a lesbian. On its face, this is hearsay. But there are a few dozen exceptions to the hearsay rule. These exceptions are where the action is. Plaintiff argues that this evidence should have come in under Rule 801(d)(2)(D), which allows the jury to hear admissions "made by the party’s agent or employee on a matter within the scope of that relationship." Was this statement made in the scope of the coworker's employment? The Court of Appeals (Sullivan, Carney and Nardini) says "the colleague's personal opinion about the roots of his supervisor's dislike of Orsaio did not relate to a matter within the scope of the colleague's agency." The citation for that is Pappas v. Middle Earth Condo. Assn., 963 F.3d 534 (2d Cir. 1992), the leading case on this issue.

Plaintiff also argued this evidence should have been received under Rule 803(1). That exception covers "present sense impressions." Under the rule, "A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it." A good example of this is someone describing someone entering the room as that individual is entering the room. Or someone stating the coffee is hot while drinking hot coffee. That exception does not apply in this case, the Court says, because it does not address "what the declarant merely conjectures." The case for that is Brown v. Keane, 355 F.3d 82 (2d Cir. 2004).

Carroll v. Trump: the anonymous jury

E. Jean Carroll's recent $5 million jury verdict against former President Trump for sexual abuse and defamation had a notable footnote: the jury that Judge Kaplan empaneled at the U.S. Courthouse was anonymous, their identities unknown to the parties and to the public. This is unusual. Anonymous juries are sometimes empaneled in high-profile criminal cases involving organized crime, terrorists, or gang members. But in a civil case?

The case is Carroll v. Trump, 22-cv-10016 (LAK). The jury decision was issued on March 23. See 2023 WL 2612260 (S.D.N.Y. 2023). The anonymous jury may predicate Trump's appeal to the Second Circuit. 

Judge Kaplan opens the discussion as follows: "This is a unique case." He then notes the defendant is a former president who has inspired strong opinions, both favorable and unfavorable, and is running for a second term in the White House. The concern is that Trump and his followers might disrupt this civil proceeding. This is based on Trump's prior public outbursts and the bad behavior of his supporters.

In reviewing the public record on Trump's prior outbursts, the Court notes, "Some individuals charged with crimes in connection with the January 6, 2020 events at the United States Capitol have argued that their actions were attributable to what the individuals perceived, rightly or wrongly, as incitement by Mr. Trump," and the Congressional January 6 committee determined that “the central cause of January 6th was one man, former President Donald Trump, whom many others followed." After reciting some of Trump's inflammatory public statements about people involved in Trump-related cases (the footnotes in this case are a good summary of Trump's inflammatory and vitriolic public comments in relationship to the legal system and other matters, including when he has advocated violence), Judge Kaplan writes, "For purposes of this order, it matters not whether Mr. Trump incited violence in either a legal or a factual sense. The point is whether jurors will perceive themselves to be at risk."

As trial courts have authority to empanel an anonymous jury even in criminal cases, where the defendant's liberty is at stake, it can do so in a civil case. Judge Kaplan writes:

If jurors’ identities were disclosed, there would be a strong likelihood of unwanted media attention to the jurors, influence attempts, and/or of harassment or worse of jurors by supporters of Mr. Trump. Indeed, Mr. Trump himself has made critical statements on social media regarding the grand jury foreperson in Atlanta, Georgia, and the jury foreperson in the Roger Stone criminal case. And this properly may be viewed in the context of Mr. Trump's many statements regarding individual judges, the judiciary in general, and other public officials, as well as what reports have characterized as “violent rhetoric” by Mr. Trump including before his presidency.

In the end, (1) the names, addresses, and places of employment of prospective jurors on the voir dire panel, as well as jurors who ultimately are selected for the petit jury, shall not be revealed, (2) petit jurors shall be kept together during recesses and the United States Marshal Service shall take the petit jurors to, or provide them with, lunch as a group throughout the pendency of the trial." In addition, "at the beginning and end of each trial day, the petit jurors shall be transported together or in groups from one or more undisclosed location or locations at which the jurors can assemble or from which they may return to their respective residences." This is a remarkable order for a civil case. 

After the jury completed its work and was about to leave the building, Judge Kaplan made it clear that the court is worried about their safety, telling them:

My advice to you is not to identify yourselves. Not now and not for a long time,” Kaplan said. “If you’re one who elects to speak to others and to identify yourselves to others, I direct you not to identify anyone else who sat on this jury. Each of you owes that to the other, whatever you decided for yourself.

 

Carroll v. Trump: the evidentiary issues

The $5 million sexual abuse and defamation verdict that a New York federal jury entered this week against former president Donald Trump had a few interesting evidentiary rulings that Trump's attorneys will almost certainly challenge on appeal. I discuss them in this blog post.

The case is Carroll v. Trump, 22-cv-10016 (LAK), 2023 WL 2441795 (S.D.N.Y. March 27, 2023). This ruling resolved the motion in limine, in which the parties asked the trial court rule on evidentiary issues prior to trial so that the trial itself does not get bogged down in objections that delay the presentation of evidence. Recall that Carroll alleged that Trump raped her and also sexually assaulted her at a department store in Manhattan in the mid-1990s. Carroll's lawyers wanted to introduce the following evidence at trial: (1) the Access Hollywood tape in which Trump said that he tried to "fuck" a particular woman and added that "when you're a star . . . [y]ou can do anything. Grab them by the pussy"; and (2) two witnesses who would recount Trump's alleged prior sexual attacks against them. Judge Kaplan ruled that this evidence was admissible, and the jury presumably considered that evidence in finding that Trump sexually assaulted Carroll and then defamed her in calling her a liar when she went public with the accusations a few years ago.

First, the Access Hollywood tape, which nearly upended the 2016 presidential election when it surfaced a month before the vote. Under Federal Rules of Evidence 415, in a civil case "based on a party's sexual assault . . . evidence that the [defendant] committed any other sexual assault" may be admitted in such cases. This rule was adopted in 1994. That rule is an exception to the general rule that you generally cannot admit evidence of the defendant's prior bad acts to prove that he did it again. We call that propensity evidence. But Congress made an exception to this rule for sexual assault cases. The Access Hollywood tape was admissible at trial, Judge Kaplan ruled, because based on Carroll's allegations, this is a "sexual assault" case, as defined by Federal Rule of Evidence 413(d): contact without consent with another person's genitals or anus, or an attempt to do so. The Access Hollywood tape has Trump stating that me "moved on" a particular woman "like a bitch" and "tried to fuck her" and that he just starts kissing beautiful woman and a "star" can "grab" beautiful women by the genitals. At deposition, Trump testified that he is a "star." Judge Kaplan held that "a jury reasonably could find, even from the Access Hollywood tape alone, that Mr. Trump admitted in the Access Hollywood tape that he in fact has had contact with women's genitalia in the past without their consent, or that he has attempted to do so."

Judge Kaplan also considered whether Carroll could have two other women testify that Trump had sexually assaulted them, as well. The governing rule is Federal Rule of Evidence 415. The first witness would testify that Trump sexually assaulted her on an airplane in 1979. The other witness would testify that Trump sexually assaulted her at Mar-a-Lago in 2005. Since these accounts are similar to Carroll's account, they are relevant to her sexual assault case. Once the trial court makes that determination, it has to apply Federal Rule of Evidence 403, which requires the court to determine if the relevance is substantially outweighed by unfair prejudice. This balancing test requires the judge to use his or her wisdom, as the analysis is nuanced. Some prejudice to the opposing party is inevitable, so the rule is there has to be substantial prejudice such that it is not worth it to admit the evidence. To that end, Judge Kaplan writes:

This is, in the vernacular, is a “he said, she said” case, and it is one that turns on an alleged event more than two decades ago. There will be no physical evidence supporting either side at trial. Mr. Trump repeatedly has denounced Ms. Carroll as a liar and the perpetrator of a hoax, and he has done so on national television and with the benefit of his status in the public and political spheres. Ms. Carroll's case, absent these witnesses, likely will depend upon her personal credibility in the courtroom, the credibility of two witnesses whom she allegedly told of the alleged rape contemporaneously, and the jury's assessment of Mr. Trump's personal credibility. Mr. Trump's alleged sexual assaults on Mss. Leeds and/or Stoynoff, if the jury is permitted to hear their testimony and believes it, is likely to weigh heavily in the jury's determination. In consequence, their testimony, if received, could prove quite important, Indeed, that surely is why Mr. Trump seeks to exclude it. So it is in that context that the usual Rule 403 factors warrant attention.

Judge Kaplan allowed both women to testify, ruling that Trump's best argument is that the alleged incidents took place in 1979 and 2005, far removed from Carroll's case, which took place in the mid-1990s. While that time issue "weighs in his favor," the court wrote, Rule 415 does not contain any temporal limits on the admissibility of evidence of other sexual assaults in a sexual assault case, and the legislative history demonstrates this was no accident.

y reasonably could find, even from the Access Hollywood tape alone, that Mr. Trump admitted in the Access Hollywood tape that he in fact has had contact with women's genitalia in the past without their consent, or that he has attempted to do so.

Carroll v. Trump, No. 20-CV-7311 (LAK), 2023 WL 2441795, at *4 (S.D.N.Y. Mar. 10, 2023)

a jury reasonably could find, even from the Access Hollywood tape alone, that Mr. Trump admitted in the Access Hollywood tape that he in fact has had contact with women's genitalia in the past without their consent, or that he has attempted to do so.

Carroll v. Trump, No. 20-CV-7311 (LAK), 2023 WL 2441795, at *4 (S.D.N.Y. Mar. 10, 2023)

False arrest claim fails on appeal

This case reminds us how difficult it is to bring a false arrest claim under the Constitution. Police officers can involve qualified immunity and avoid the lawsuit altogether. They can also win the case by showing there was probable cause to make the arrest. These defenses present significant roadblocks for plaintiffs. 

The case is Richardson v. McMahon, a summary order issued on April 27. This is a domestic violence case where the female victim called the police. The police officers received statements from two women suggesting that plaintiff had assaulted Candice Binns. One of the eyewitness statements came from Binns. One officer observed that "Binns appeared disheveled" and that her face, neck and shirt "were a little wet." The floor of Binns' apartment was also wet and Binns was cleaning up the apartment when the police arrived. Binns may have told the police upon arrival that plaintiff "began to yell at her" and pushed her around the kitchen. She also may have told the police that plaintiff placed his hands around her throat and began to choke her. She then said plaintiff poured water on her face. Winns' daughter reported the same information to the police.

Plaintiff denies any wrongdoing. Does that denial give rise to a false arrest case? Not in this case, says the Court of Appeals (Calabresi, Park and Lee), because it is settled law that the arresting officer can rely on the accusatory statements from the alleged victim. That kind of eyewitness account gives rise to probable cause unless the police have good reason to believe the eyewitness account was knowingly false or there was something unreliable about the eyewitness. Plaintiff loses the case on summary judgment because "it was objectively reasonable for the police to rely" on these eyewitness statements in arresting plaintiff. 

Plaintiff also raises a malicious prosecution claim, which would cover any harm that accrued following plaintiff's arrest. If the police had reason know post-arrest that probable cause was lacking, plaintiff can pursue such a claim. He cannot do so because, post-arrest, the police "did not uncover any further exculpatory evidence beyond" plaintiff's account that he had done nothing wrong.

Charles Oakley wins his appeal against Madison Square Garden in excessive force case

The Court of Appeals has reinstated a lawsuit filed by a former basketball player who was removed from Madison Square Garden while attending a Knicks game as a spectator. The claim was for assault and battery.

The case is Oakley v. MSG Networks, a summary order issued on May 5. It all happened on February 8, 2017. The case was dismissed on a summary judgment motion. The Court of Appeals finds that jury may in fact find that Charles Oakley was subjected to excessive force. When the Second Circuit first ruled on this case in 2020, in reversing the Rule 12 motion to dismiss, it stated that “[b]ecause of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide.” That principle holds true in the summary judgment posture, as well, the Court (Wesley, Robinson and Calabresi) holds. 

MSG submitted video recordings of the incident. The trial judge (who now sits on the Court of Appeals) said the video footage conclusively shows there was no excessive force. The Supreme Court has said that video footage can yield that result on summary judgment motions, but only if the footage proves beyond any doubt that the plaintiff has no case. That case was Scott v. Harris, 550 U.S. 372 (2007). There were multiple videos in this case, which leads the Court to find that the evidence is too murky to prevent a jury trial on this issue. The following passage from the ruling gives you a flavor of what's going on here.

Oakley testifies that immediately after he stood, he was grabbed and pulled backward by the security guards. Once he was let go, he felt a security guard push him from behind. The district court determined that the “initial” fall that Oakley was presumably describing was depicted in Exhibit 4 (hereinafter “Fan Video”) at 0:13–0:14.

But a separate video records Oakley standing up while surrounded by security guards and falling to the side in a way that is not blatantly inconsistent with the description in his declaration. See Exhibit 2.b (hereinafter “Stadium Video”) at 8:16–8:23. This excerpt from the Stadium Video apparently depicts events that occurred before the Fan Video begins. Viewing the record in the light most favorable to Oakley, and giving him the benefit of all reasonable inferences, the record does not unequivocally support the conclusion that the incident

Oakley described in his declaration was that depicted in the Fan Video at 0:13. So a dispute of material fact exists on that question.

Moreover, if Oakley’s declaration describes the incident depicted on the Stadium Video at 8:16-8:23, then the record does not, as the district court suggested, reflect as a matter of law that the security guards only resorted to force after Oakley physically escalated the situation. 

Additionally, the Stadium Video, which is the only video that captures the initial encounter between Oakley and the MSG security guards, has a low frame rate and, as a result, produces a choppy and degraded video quality that does not depict a continuous flow of activity. Nor does it include sound. As a consequence, it does not record the initial conversation between Oakley and the MSG security guards, and it is difficult to see clearly what happened.

Plus, the video record shows Oakley falling two other times after that initial encounter. See Fan Video at 0:13–0:14 and at 1:10; Stadium Video at 8:41– 8:42 and at 9:36–9:40. None of these videos clearly show Oakley’s feet and lower legs, and thus do not unequivocally establish that Oakley merely lost his footing.

This is what happens when multiple videos exist in the same case. There are many ways to view an incident. The jury is going to have to sort through all of this. As the Second Circuit holds, "once a jury sorts out what exactly happened, it must make a determination as to whether the force used to eject Oakley was reasonable."

Free speech challenge to NY mental-health licensing law fails

The Court of Appeals holds that a mental health counselor from Vermont cannot bring a free speech challenge to the New York requirement that such therapists obtain a license to practice in New York. 

The case is Brokamp v. James, issued on April 27. In New York, practicing mental health counseling without a license is a class E felony, punishable by a prison term of up to four years and a fine. In 2002, the State Legislature enacted a licensing requirement for such counselors to protect the public from unprofessional and unqualified counselors.

Plaintiff challenges this requirement under the First Amendment, noting that the licensing requirement regulates her free expression as a therapist. Now, much of everything involves speech, which is why First Amendment cases like this are complex.Hence the 46-page ruling. If the regulation is based on the content of plaintiff's speech, then plaintiff probably wins, since the government cannot control what people can and cannot say. But the analysis more nuanced than that. The regulation is actually content-neutral since it regulates conduct, not speech, the Court of Appeals (Raggi, Wesley, and Lohier) holds, as the state is not regulating what therapists can say or favoring some views over others. 

Since the regulation only regulates "speech having a particular purpose, focus, and circumstance," regardless of what is being said, it is content neutral, which means the law is evaluated under intermediate scrutiny, not strict scrutiny. Intermediate scrutiny is more deferential to the government, which will win the case if the regulation advances an important governmental interest unrelated to the suppression of speech, and it does not substantially burden more speech than necessary to advance that interest. The government wins the case because the licensing rule (1) advances the important governmental interest in promoting public mental health, and (2) the rule is sufficiently narrowly tailored to promote that interest and does not reach too far in doing so.

Nor is the licensing requirement "void for vagueness," another way to bring a First Amendment challenge. The stature clearly states what is being regulated, and the Court of Appeals rejects plaintiff's argument that the statute is vague because it "prohibits and permits the exact same conduct." Plaintiff argues that the statute's definition of "mental health counseling" both covers "evaluation, assessment, amelioration, treatment, modification, or adjustment," but it does not regulate "instruction, advice, support, encouragement, or information." This argument fails because plaintiff's "talk therapy practice falls squarely within the statutory definition of mental health counseling requiring licensure and that both she and enforcement authorities so understood." Plaintiff does not hold herself out as a life coach or self-help guru but as a professional mental health counselor. The statute clearly covers her practice, the Court holds.

Here is a built-in barrier to winning employment discrimination cases

Some Title VII discrimination cases are harder than others. This case is one of the harder ones. Not because the plaintiff has no case, but because the legal standard guiding this dispute has a built-in barrier that increases the plaintiff's burden of proof.

The case is Martinez v. City of Stamford, a summary order dated May 1. Plaintiff says the City hired two non-Hispanic white police officers to Sergeant over him, and that the reason for this adverse decision was racial discrimination. The district court dismissed the case on summary judgment and plaintiff appeals.

The problem with failure to promote cases, at least from the plaintiff's perspective, is that the plaintiff has to show that his credentials were far superior to the people who actually got the position, Comstock and Malanga. The City says the two officers were better qualified than plaintiff.

Stamford describes legitimate nondiscriminatory reasons for selecting both Comstock and Malanga. Stamford notes that both selected candidates had bachelor’s degrees, while Martinez did not, and both scored higher than Martinez on the written portion of the promotional exam. Comstock had been selected as Police Officer of the Year and Malanga had been nominated for the award four times, but Martinez had been nominated only three times. Moreover, Malanga had already been serving as “de facto supervisor” prior to his promotion.

Assuming plaintiff was qualified for the position, that would not entitle him to a jury trial. That's because embedded in Second Circuit law is the requirement in promotion cases that the plaintiff was "so superior" that "no reasonable person in the exercise of impartial judgment, could have chosen" the other guys. That standard is from Byrnie v. Town of Cromwell, 243 F.3d 93 (2d Cir. 2001). The Supreme Court has never endorsed such a standard, but the legal standards guiding Title VII are almost all judge-made, and this standard grows out of the principle that courts are not super-personnel departments that will turn every personnel decision into a federal case. Judges will defer to managerial decisionmaking in failure-to-promote cases. The plaintiff needs to be the obvious choice for promotion to show that the employer's claim that the others were better qualified is a pretext for discrimination.

Plaintiff tries to get around this evidentiary burden by arguing that the department does not have enough Hispanic officers, and that is evidence of discriminatory intent. But the Court of Appeals (Pooler, Wesley and Menashi) rejects that theory. "We previously have rejected the proposition that numbers alone serve as evidence of intentional discrimination." The case for that is Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir. 2000). 

Plaintiff also argues that the department failed to adhere to the affirmative action provisions in state law. But Connecticut law "does not require the department to follow any particular hiring policy." Moreover, "Martinez points to no evidence that the department missed the deadline out of animus, but even assuming the district court was correct, we agree with the district court that missing the guidelines deadline was not enough to defeat summary judgment. See Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (“[T]he Court did not categorically conclude that a prima facie case plus pretext evidence ‘permits’ a trier of fact to find that a plaintiff has satisfied his ultimate burden; it noted, instead, that such circumstances ‘may permit’ a trier of fact to conclude that a plaintiff had met his ultimate burden”). Take a look at that language from Schnabel: it says that even some pretext is not enough to win a Title VII case. That principle also makes it difficult to win these cases, but that's a story for another day. I will note that I have not seen that language in any Second Circuit ruling in quite some time. Maybe that language is making a comeback.

Court vacates preliminary injunction relating to ADA violation in medical school testing case

The plaintiff in this case is a medical student at SUNY Stony Brook who alleged that the Board of Medical Examiners (NBME) denied him testing accommodations in violation of the Americans with Disabilities Act. The district court granted him a preliminary injunction against the NBME on the basis that the accommodations denial would cause him to suffer irreparable harm. The Court of Appeals dissolves the injunction.

The case is Sampson v. National Board of Medical Examiners, a summary order issued on May 1. You can get a preliminary injunction at the outset of a lawsuit if the trial court thinks you have a strong chance to win the case and you will suffer irreparable harm without the injunction. Irreparable harm means the harm cannot be undone if everyone waits for the plaintiff to win the case at the conclusion of the legal proceedings, which can take more than a year. Preliminary injunctions are hard to win.

The district court summarizes the nature of plaintiff's disability:

Despite his evident aptitude, Sampson has struggled with learning since his early childhood. By the time he was four years old, he had been diagnosed with severe stuttering that required intervention therapy. As part of this intervention therapy, Sampson's speech pathologist instructed his family to slow their speech to afford him more processing time. . . . Sampson also struggled to complete timed exams within the time allotted. He was almost always the last student to complete an exam, regardless of subject area. He sometimes was allowed extra time to finish timed exams during lunch or after school, while other students finished the same exam within the allotted time in class. Even with additional time, however, he still was unable to finish the exams.

 . . . 

NBME provides accommodations to examinees who have a disability within the meaning of the ADA and need accommodations. So, in April 2017, Sampson sought accommodations from NBME for Step 1. He requested 50% additional time (time and a half) on the exam—the same accommodation that he recently received from Stony Brook for shelf exams.

After NBME denied plaintiff's accommodation request, he sued NBME under the Americans with Disabilities Act. The district court granted him an injunction, but the Court of Appeals reverses.

Despite his evident aptitude, Sampson has struggled with learning since his early childhood. By the time he was four years old, he had been diagnosed with severe stuttering that required intervention therapy. As part of this intervention therapy, Sampson's speech pathologist instructed his family to slow their speech to afford him more processing time.

Sampson v. Nat'l Bd. of Med. Examiners, No. 22CV05120JMAAYS, 2022 WL 17403785, at *1 (E.D.N.Y. Dec. 2, 2022)

The Court of Appeals holds that plaintiff is not entitled to any injunction because there is no irreparable harm. Bear in mind that the test plaintiff needed the accommodation for is Step 1. The Second Circuit (Park, Wesley and Robinson) notes that "The district court reasoned that Sampson “cannot continue his medical training until he passes Step 1” and “it is likely that he will again fail Step 1 if he takes the exam without accommodation” so “he will not be able to progress to his final year of medical school unless he receives accommodations on Step 1.” Stony Brook has a seven-year limit for medical students to complete their studies. Plaintiff has a separate lawsuit against Stony Brook over this requirement. That lawsuit complicates the injunction. The Court of Appeals states,

But Sampson’s complaint against Stony Brook alleges that Stony Brook has sought to dismiss him and has repeatedly stated that Sampson will not be granted an exception to the seven-year graduation requirement.  So Sampson’s alleged inability to progress in medical school depends not only on the outcome of this  lawsuit, but also on the outcome of Sampson’s lawsuit against Stony Brook. The district court thus erred in making a determination of harm that is contingent on the outcome of Sampson’s separate legal proceeding against Stony Brook.

Since the district court did not find that plaintiff is likely to win his case against Stony Brook or win a favorable settlement if he passes Step 1, there is no showing of irreparable harm.