Do not use artificial intelligence to write your legal briefs

The Court of Appeals has reprimanded a lawyer who filed an appellate brief that cites a case that does not exist. This is another example of a lawyer using artificial intelligence to write a brief without making sure that the cases cited by AI are real cases.

The case is Park v. Kim, issued on January 30. This case is actually a double-whammy. The case itself was dismissed because the plaintiff would not comply with discovery orders. The trial court kept giving plaintiff second chances on compliance but in the end the court threw out the case under Rules 37 and 41(b). Since trial judges have broad discretion to dismiss cases when the plaintiff repeatedly fails to comply with discovery orders, that ruling is affirmed by the Court of Appeals (Merriam, Parker and Nathan). 

But the larger story here is what happened to plaintiff's attorney. She used AI to help write the brief. Lawyers have done this before and gotten in trouble when they fail to ensure that the cases cited by AI were real cases. In this case, the attorney used ChatGPT for the reply brief, which cited only two cases. One of those cases was Matter of Bourguignon v. Coordinated Behaviorial Health Services, Inc., 114 A.D.3d 947 (3d Dept. 2014). The judges on the Court of Appeals could not find that case and asked counsel to provide them with a copy. Counsel responded that she was unable to do so and admitted that she had relied on AI to help write the brief. The actual case for this citation is Kay v. Desantis, 114 A.D.3d 947 (2d Dept. 2014), which deals with a child-support issue under the Family Court Act. Park's case involves a workplace injury.

Place

Kay v. Desantis, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)

Place

Kay v. Desantis, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)

Matter

Kay v. Desantis, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)

Matter

Kay v. Desantis, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)

Matter

Kay v. Desantis, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)

I am sure the Court of Appeals was flabbergasted to learn that the reply brief cited a non-existent case. The Court writes, "Attorney Lee’s submission of a brief relying on non-existent authority reveals that she failed to determine that the argument she made was 'legally tenable.' The brief presents a false statement of law to this Court, and it appears that Attorney Lee made no inquiry, much less the reasonable inquiry required by Rule 11 and long-standing precedent, into the validity of the arguments she presented." The Court has referred counsel to the grievance committee for the federal courts, where some kind of sanction is probably in order.

Plaintiff loses scaffolding claim at trial

The New York State scaffolding law is well-known to developers. It imposes absolute liability on them if their employees suffer an injury from inadequate safety provisions which cause them to fall to the ground. These cases are usually filed in state court, but this one went to trial in federal court, and the plaintiff lost. The Court of Appeals (Parker, Lee and Merriam) upholds the verdict.

The case is Csikos v. 230 Park South Apartments, a summary order issued on January 25. Plaintiff says he fell from a A-frame ladder that was not safely secured, suffering injuries. He wanted summary judgment on this issue, but the district court held the jury could find the ladder was properly secured and that plaintiff's elevation from the floor was minimal and did not require fall protection. Note that many of these cases are decided in the plaintiff's favor on a summary judgment motion, as the record is often clear that there was something wrong with the safety provisions when the plaintiff had to take part in elevated work, either on a scaffold or a ladder. But these cases sometimes go to trial on this issue. Like this case.

One reason plaintiff was properly denied summary judgment was that a New York court held in a different case that “[a] fall from a ladder does not in and of itself establish that the ladder did not provide appropriate protection” and that “[d]efendants would not be subject to statutory liability if plaintiff simply lost his footing while climbing a properly secured, non-defective extension ladder that did not malfunction.” That ruling led to the trial, which plaintiff lost. 

As for plaintiff's claim that he deserved judgment as a matter of law at trial, and that the case should have been taken from the jury and decided by the judge in his favor after the evidence was submitted that argument fails also. Bear in mind that it is quite difficult to second-guess a jury's factual determinations at trial. We leave it to juries to decide what happened in the case, and if there is evidence on both sides, the jury's decision to credit one side over the other is almost never overturned on the basis that the losing side had better evidence than the winner.

In this case, 230 Park put on evidence "that the sequence of events leading to the fall did not occur in the way that Csikos recited—ultimately attempting to make its point that 230 Park (through the contractor it hired for the job) adequately equipped Csikos for the needs of the demolition project and did not breach its obligations under NYLL § 240(1)." Instead, while Csikos testified that "he was standing on the fourth step of the ladder when it 'moved,' causing him to lose his balance and fall," 230 Park presented evidence that Csikos told ambulance attendants that he fell after “he missed the bottom step of the ladder,” not that the ladder moved. The jury was allowed to believe 230 Park over plaintiff on this issue. In addition, 230 Park's resident manager of the building, who was present after the incident, testified that "the ladder was standing upright, as well as pictures that demonstrated the height and width of the hallway in which the demolition work occurred." The jury was permitted to believe that testimony.

Bridge toll penalty fees do not violate the Eighth Amendment

No one likes paying highway or bridge tolls but these fees are a fact of life so the government can maintain the roads and bridges. The plaintiffs in this case sued the Triborough Bridge and Tunnel Authority, claiming that its fines for unpaid tolls violate the Eighth Amendment's prohibition against excessive fines. The plaintiffs lose.

The case is Reese v. Triborough Bridge and Tunnel Authority, issued on January 26. The fines can be as high as $100 for each unpaid toll. One plaintiff had 41 toll violations and was hit with fines totaling $4,000 even though the underlying tolls amounted to only $381.50. Another plaintiff had $1,000 in fees for 10 toll violations, but the underlying tolls were for $85. A third plaintiff had 439 violations in more than two years and was fined $43,550 for $3,810 in unpaid tolls. You get the picture. They claim the fines are unconstitutionally excessive. The Court of Appeals (Lohier and Lynch) finds for the agency.

The Eighth Amendment is silent as to how courts should enforce it. The Supreme Court adopted a test in United States v. Bajakajian, 524 U.S. 321 (1988) that lays out four factors:

(1) the essence of the crime of the defendant and its relation to other criminal activity, (2) whether the defendant fits into the class of persons for whom the statute was principally designed, (3) the maximum sentence and fine that could have been imposed, and (4) the nature of the harm caused by the defendant's conduct.

Plaintiffs lose because (1) plaintiffs' violates stemmed from their failure to pay attention to the fine-payment process and fines are OK under the Eighth Amendment even for strict liability offenses, (2) plaintiffs' fines fell below the maximum amount that could have been assessed by the agency, and (3) the harm caused by plaintiffs' failure to pay the fines were not minimal to nonexistent, undercutting their argument that the fines were disproportionate to the offense. In fact, the harm to TBTA is minimized precisely because of the fines that plaintiffs challenge in this case. Without the fees, the fiscal harm to the agency would be substantial, and it would be difficult for the TBTA to collect tolls without deterring potential toll-violators. 

Student cannot sue Pace University over on-line classes during pandemic

Here is another COVID-19 case. This one involves higher education. Plaintiff was a master's degree student at Pace University whose education in the performing arts was disrupted by the pandemic in spring 2020 as the university moved the classes online, prompting plaintiff to sue for breach of contract, unjust enrichment and related state law claims. Plaintiff loses the case.

The case is Goldberg v. Pace University, issued on December 8. After the world shut down in early March 2020 due to the pandemic, Pace suspended in-class instruction for the rest of the spring semester. As we all know, schools and colleges were doing this all over the country. Is there case to be had for any of this? Plaintiff argued that this was a breach of contract because Pace did not refund the tuition over the course of 2.5 years in the Actors Studio program ($90,000). This is because he, like his classmates, was denied in-class instruction.

While colleges have an implied contract with their students to act in good faith, we look to the university's bulletins, circulars and regulations made available to the student to determining whether the college has acted in good faith. The student must show an express promise for certain specified services in the university's relevant materials. He must then show how the defendant breached that promise. Plaintiff loses this claim because Pace's written Emergency Closings provision allocated the risk to students if Pace needed to close due to an unforeseen, emergency circumstance outside of Pace's control. The provision did not allow Pace to completely shut down operations. As such, Pace was within its contractual rights to postpone services for plaintiff and move his classes online on account of the pandemic. The pandemic surely qualifies as such an emergency, the Court of Appeals (Raggi, Carney and Nathan) holds.

This reasoning carries over to plaintiff's other claims. Moving four of his classes to an online format falls within the Emergency Closings provision, and there is no promissory estoppel or unjust enrichment claim stemming from plaintiff's equitable reliance on any of Pace's promises. 

New York Court of Appeals says dog drug-sniff implicates the Fourth Amendment's protection against unreasonable searches and seizures

This ruling from the New York Court of Appeals breathes life into the Fourth Amendment's protection against unreasonable searches and seizures. The Court holds that the use of a narcotics-detection dog to sniff a defendant's body for evidence of a crime qualifies as a search, thus implicating the Fourth Amendment.

The case is People v. Butler, issued on December 19. It all began in 2017, when the police saw what looked like a drug deal in a parking lot known for such activity. The officers followed the defendant's vehicle down the street and stopped him after observing erratic driving maneuvers. The officers noticed a bulge in defendant's pants but defendant declined the officers' request to search him. Out comes the canine, named Apache, who sniff-tested the car for the presence of narcotics. The dog pulled on its leash toward defendant, suggesting it had caught the sense of narcotics in his groin/buttock region. Defendant then tried to run away. When the officers caught defendant on the run, they found drugs on his person. 

Is this search legal? Hard to believe the New York Court of Appeals has not resolved this issue before. The Supreme Court has not dealt with this issue either. The Court of Appeals resolves it now. After reviewing key Supreme Court cases on the issue, the Court reaches this conclusion:

we hold that the use of a canine to sniff defendant’s body for the presence of narcotics qualified as a search. This is true even if we accept County Court’s apparent conclusion that when Apache put its nose in defendant’s “groin/buttock region,” the dog did not make actual contact with defendant and sniffed only the air closely surrounding his person. The lack of direct physical contact is not dispositive in this context because of the “heightened” interest society recognizes in the privacy and security of the human body, which can encompass space immediately surrounding the body and was clearly implicated by what occurred here.

Next comes the ringing endorsement of the value of bodily integrity and the U.S. Constitution. 

It cannot be disputed that society treats many matters related to the body as private, or that individuals have a significant interest in the security and integrity of their persons. The Fourth Amendment protects those important interests from unreasonable intrusion by the government.  Indeed, although this Court has at times described governmental intrusion into the home as “the chief evil” against which the Fourth Amendment is directed, the text of the Constitution notably lists “[t]he right of the people to be secure in their persons” first among the several areas entitled to protection, and the Supreme Court has recognized the heightened nature of that interest.

Thus, the Supreme Court has long held that the Fourth Amendment is implicated when the government attempts to gather evidence of criminal activity from an individual’s person. It has recognized that a search occurs whether the particular method employed by the government entails a “compelled surgical intrusion into an individual’s body.”

What it means in this case is that the presence or absence of direct physical contact with the body does not determine whether "the governmental conduct implicates the right to bodily integrity under the Fourth Amendment. The question instead turns on whether the conduct compromises personal dignity and violates reasonable social expectations concerning the security of one's body" and related privacy issues.The dog sniff involves a significant intrusion on personal privacy, security and dignity, the Court of Appeals says. 

Most people 'deliberately attempt not to expose the odors emanating from their bodies to public smell and experience anxiety and embarrassment at the thought of emitting odors, demonstrating the sensitivity of the matter. Moreover, it is of little consolation in this context that the only information a canine may be capable of conveying to police is the presence of illegal drugs. The embarrassment and inconvenience of this type of search does not arise solely from fear that the canine will reveal the presence of contraband, but from the objectively undignified and disconcerting experience of having an unfamiliar animal place its snout and jaws in close proximity to—if not direct contact with—vulnerable parts of our bodies.

Much of this reasoning derives from a Fifth Circuit case from 1982. The New York Court of Appeals makes this language its own. The Court of Appeals also cites a law review article detailing how the police have used canines to intimidate and control people of color and marginalized communities. 

Now that we know the dog sniff implicates the Fourth Amendment and requires a more careful search-and-seizure analysis, the case returns to the County Court to reconsider whether this search violated the Fourth Amendment.

A rare victory in challenging an arbitration provision

Watch what you sign when you enter into a customer agreement. You may unwittingly sign an arbitration provision that says any lawsuit you may have against the company will be arbitrated and not litigated in court. You may not care at the moment because most people don't wish to initiate any proceedings against the company, but if you do, and even if you want a class action, you are stuck in arbitration. Most plaintiffs would rather be in court.

The case is Lipsett v. Popular Bank, a summary order issued on January 10. Courts are inclined to uphold most arbitration agreements. One way to challenge them is to argue that the box you checked online was not conspicuous enough for you to know it was even there. In this case, plaintiff and the potential class want to sue the bank in federal court. The court ruling does not tell us what the dispute was about. But when plaintiffs filed this lawsuit, the bank moved to compel arbitration. 

Plaintiff argued that he never consented to the arbitration provision. The general rule is this:"where an offeree lacks actual notice of certain contract terms, he is nevertheless bound by such terms if he is on inquiry notice of them and assents to them through conduct that a reasonable person would understand to constitute assent. Whether an individual is on inquiry notice turns on whether the contract terms were presented to the offeree in a clear and conspicuous way, taking into account the totality of the circumstances.” This legal standard requires judges to determine what a reasonable person would know and what they would not know.

Plaintiff wins the appeal and the case remains in federal court. The arbitration provision that plaintiff supposedly agreed to was too confusing. The Court of Appeals (Sack, Lohier, Kahn) says:

While the 2014 Notice draws attention to the arbitration provision, it misleadingly states that there “continues to be a Mandatory Arbitration Provision.” This statement signals to a reasonable customer like Lipsett, who was not previously informed of the arbitration provision or consented to arbitration and therefore not bound by any previous iteration of the arbitration provision, that it does not apply to him and that his agreement with the Bank remained effectively unchanged.

In other words, the provision mistakenly presumes that plaintiff already knew about an arbitration provision that he was not previously informed about. In signing the agreement, plaintiff was not consenting to continue the terms of the prior arbitration agreement because such an agreement did not apply to him. In addition, the agreement that plaintiff signed did not expressly tell plaintiff about the terms upon which he could accept or deny the arbitration provision. 

This is all very complex, and the courts, as I said, have to put themselves in the shoes of the average consumer in determining whether the consumer knowingly agreed to a legitimate arbitration provision.

Court of Appeals reinstates False Claims Act case

This is a case brought under the False Claims Act in which the plaintiffs allege that a home health and hospice care company in Louisiana with facilities around the country falsely certified unqualified patients for home health care, provided unnecessary and improper treatment, falsified time records, and manipulated patient records. These schemes resulted in fraudulent bills to the government for reimbursement under Medicare, Medicaid, and other government-funded healthcare programs. Following plaintiffs' whistleblowing, they suffered retaliation. The district court rejected the case, but the Court of Appeals brings it back.

The case is Pilat v. Amedisys, Inc., a summary order issued on January 17. The district court said that plaintiffs did not engage in protected activity, a necessary prerequisite to any retaliation claim. Under the statute, you engage in protected activity by engaging "in efforts to stop one or more violations of' the FCA. Such efforts can include both complaining internally to supervisors about suspected fraudulent practices and refusing to engage in such practices."

Both plaintiffs engaged in protected activity. "After Maniscalco’s supervisors had already overruled his recommendations for a specific Medicare patient twice and recertified the patient after two six-week programs, Maniscalco 'refused instructions by his supervisors to recertify a third time, insisting that she was completely independent and it would be unethical to do so.'” That qualifies as protected activity under the statute. While Maniscalco objected to "unethical" behavior as opposed to "illegal" behavior, "his comments support the inference that he was attempting to prevent Amedisys from providing, and overbilling for, unneeded treatment."

Pilat also engaged in protected activity, as he "repeatedly expressed his concerns to his supervisor over email 'about the inability of the nurses and therapists to keep up with Amedisys’s extensive volume of patients.'”

The trial court said these objections concerned the quality of patient care and not fraud. The Court of Appeals (Lohier, Robinson and Nathan) does not see it that way. The Court of Appeals writes:

Overscheduling clinicians and cramming in patient visits results in poor quality care, but the TAC also explains how those acts are fraudulent: “Amedisys still billed for the services . . . as if the clinician had actually fully performed them,” even though many patients were seen only “for a few minutes rather than an amount of time commensurate with the Government billing,” That is fraud, and the TAC adequately alleged that Pilat engaged in protected activity by voicing concerns about this fraud to his supervisors.

Plaintiffs also have to plead with particularity that defendant engaged in fraud. They "have identified multiple specific instances in which a clinician was instructed either to document patient information falsely to allow for treatments for which the patient did not qualify, or to recommend an unnecessary course of treatment." The decision provides specific examples that will be useful for attorneys writing up these lawsuits. "For example, Maniscalco’s supervisors instructed him in early 2017 to fraudulently write that a 50-year-old man he was treating was not independent and needed assistance to use stairs, even though that wasn’t true." Plaintiffs also identified multiple specific instances when defendant falsified time sheets.



 

Barstool Sports wins defamation claim despite inflammatory allegations against plaintiff

This case tells us how difficult it is to win a defamation case in New York. Plaintiffs can win when someone conveys a disparaging falsehood about them, but there are numerous defenses that can force the trial court to dismiss the case prior to trial.

The case is Rapaport v. Barstool Sports, Inc., a summary order issued on January 9. Barstool is a media enterprise with a presence on the Internet and satellite radio, among other places, where the hosts talk about sports, politics, pop culture, etc., in an unfiltered and controversial manner. Rapaport is an actor, performer and comedian who signed a contract with Barstool as one of its commentators. But the parties then had a falling out, and other Barstool personalities publicly called Rapaport a racist and a fraud, said he had stalked and physically attacked his ex-girlfriend, and that Rapaport has herpes. If the allegations were false, you would think this would be actionable defamation case, but the case was dismissed in the district court and the Court of Appeals that plaintiff has no case.

You can only win a defamation case when the defendant asserts untrue facts against you. Opinions are not fact and cannot predicate a defamation case. We also consider the context of the allegedly defamatory statements, in that hyperbole and non-literal language is not actionable, and if the reader or listener would understand that the forum is not the place for serious discussion, then the disparaging comments are not actionable. Here is why the district court dismissed the case:

[T]he statements were largely laden with epithets, vulgarities, hyperbole, and non- literal language and imagery; delivered in the midst of a public and very acrimonious dispute between the Barstool Defendants and Rapaport that would have been obvious to even the most casual observer; and published on social media, blogs, and sports talk radio, which are all platforms where audiences reasonably anticipate hearing opinionated statements.

In other words, the fact that these statements were made on the Barstool platform, and not the New York Times podcast, doom this case. The New York Court of Appeals has said that "the forum in which a statement has been made, as well as the other surrounding circumstances comprising the ‘broader social setting,’ are only useful gauges for determining whether a reasonable reader or listener would understand the complained-of assertions as opinion or statements of fact.”  The Second Circuit also says that the context of this case "was one within which even certain ostensibly factual statements could be reasonably understood as part of a 'tasteless effort to lampoon' because they were made '[i]n the emotional aftermath of a [situation] when animosity would be expected to persist' and in circumstances where 'an audience may anticipate the use of epithets, fiery rhetoric or hyperbole.'”

Retaliation plaintiff gets much less money in damages at second trial

Let us all say a prayer for all the plaintiffs who had to proceed to a second trial after winning the first one because the trial court said the plaintiff was awarded too much money. These prayers are limited to those plaintiffs who got less money the second time around. In this case, the plaintiff got a lot less money at the second trial.

The case is Cole v. Foxmar, Inc., a summary order issued on January 8. This is a retaliation claim brought under Vermont law. Plaintiff said he was fired in retaliation to complaining that employees were unable to take sick leave. The case went to trial and the jury ruled for plaintiff, awarding him $75,000 for emotional distress and $3 million in punitive damages. Great win for plaintiff. Except that the trial court said the damages were too high and were unsupported by the evidence. Without offering plaintiff a chance to avoid a second trial if he accepted a lesser amount (which is what most trial judges do in federal court), the trial court ordered a new trial, solely on damages,

Let's step back a bit and think about this. Jurors are told at trial that they are the final judges of the case. No one tells the jury that, post-trial, the attorneys and the judge pick through the verdict to make sure the jury did not exceed its authority in ruling for one party or another, and in issuing a damages award. But that's our system. If the jurors in the first trial in this case decide to Google this case, they will be surprised to know the case continued for several years after they rendered their verdict.

At the second trial, the jury awarded plaintiff only $35,000 in back pay and $20,000 for emotional distress. So, while the first jury gave plaintiff $3,075,000 in damages, the second trial only yielded $55,000 in damages Plaintiff's appeal argues that the trial court abused its discretion in ordering the second trial in the first place and that the original damages awards should stand.

The problem for plaintiff is that trial judges have discretion to order a second trial on damages if they think the first damages award was tainted in some way. What happened here is the first jury gave plaintiff more money in lost wages than he had asked for, and the jury assumed in awarding all that money in back pay that he would have continued working for defendant for more than 15 years, an assessment that was not supported by the trial record. The trial court also believed the jury exceeded its authority in awarding $3 million in punitive damages since plaintiff did not suffer any physical injuries from the retaliation, the employer only suppressed plaintiff's complaints about sick leave in isolated incidents, and the punitive damages exceeded the lost wages award by a large ratio (14:1) that offends the Due Process Clause under Supreme Court precedent.  

What about the trial judge's failure to offer plaintiff a remittitur? The Court of Appeals (Cabranes, Sullivan and Perez) says that while plaintiff argued in his reply brief that Vermont law requires that plaintiff be given that choice, he did not preserve that argument in his opening brief. This allows the Court of Appeals to apply federal law on this issue, and federal law says the trial court has the option of simply ordering a second trial on damages without a remittitur option.

NYC fast-food wrongful discharge law is upheld

In 2017, the New York City Council enacted a law that protects employees at large fast-food chains in New York City from arbitrary terminations and reductions in hours. This law was significant because, generally speaking, most employees who are not unionized have no protections against arbitrary terminations or wage reductions because they are at-will employees and courts usually defer to managerial prerogatives. A significant law like this will always undergo a court challenge, however. The Restaurant Law Center and New York State Restaurant Association brought this case, alleging that the NYC law violates the Constitution and federal wage and hour laws. The Court of Appeals (Nathan and Parker) rejects these arguments and the law stands.

The case is Restaurant Law Center v. City of New York, issued on January 5. Under the law, fast food chains cannot fire hourly wage employees without notice or reason in the absence of egregious misconduct. These employees also have the option whether to arbitrate their claims or bring their cases to court. That distinction can make all the difference in whether you won or lose the case, as juries will be more sympathetic to wrongful discharge cases than arbitrators who are paid by the companies to resolve the case. 

The lawsuit does not allege that the City law is a good idea or a bad idea. The focus is more legalistic, involving areas of the law that would bore non-lawyers to death. These areas of the law might even bore lawyers to death. But the case is important because lots of people work for these fast food chains and, prior to this law's enactment, they had minimal protections against arbitrary personnel decisions. 

We have two challenges here: first, the industry argues that the City law is preempted by federal law. If that is the case, then the City law fails. But the National Labor Relations Act does not take precedence here because the NLRA only regulates the process of labor negotiations, not the substance of labor negotiations. The Second Circuit says that regulating the substance of labor negotiations, by prohibiting arbitrary terminations and salary reductions, does not fall within the NLRA. In fact, all employees in NYC who work for large fast food places are covered under the City law, not just unionized employees. 

The second challenge to the City law falls under the Dormant Commerce Clause. The Constitution says that Congress shall regulate interstate commerce. Over the years, the Supreme Court has also determined that the Commerce Clause also makes it illegal for states to practice protectionism by favoring in-state commerce over out-of-state commerce. That's the Dormant Commerce Clause. The industry argues that the City law violates the Dormant Commerce Clause because, in practice, the City law favors New York City franchises over out-of-state franchises. The Court of Appeals disagrees, finding as follows:

Any burdens imposed by the Law are highly localized. The Law does not impose direct costs on out-of-state franchisors or any other out-of-state entity—only individual restaurants operating in New York City.  Put otherwise, at the restaurant level, every restaurant to which the Law applies is an in-state business; and at the chain level, the Law applies equally regardless of where a franchise is headquartered. So, for example, the Law imposes the same burdens on a local franchisee of a New York-based interstate chain like Shake Shack or Nathan’s Famous as it does on a local franchisee of an interstate chain headquartered outside New York.

 

Police misconduct case will proceed to trial

The plaintiff alleges the City of Long Beach police officers subjected him to excessive force. The district court denied summary judgment on this claim, so the officers appeal to the Second Circuit on qualified immunity grounds, claiming their actions did not violate clearly-established law. The Court of Appeals is not buying this argument and the case will proceed to trial.

The case is Benny v. City of Long Beach, a summary order issued on December 14. If you want to appeal right away from the denial of qualified immunity (the federal rules normally disallow early appeals prior to entry of judgment) you have to argue that even if the plaintiff's facts are true, the officer is still entitled to immunity from suit. 

It is clearly established law in the Second Circuit that the police cannot assault people who did not resist arrest. Those cases are Rogoz v. City of Hartford, 796 F.3d 236 (2d Cir. 2015), and O'Hara v. City of New York, 570 Fed. Appx. 21 (2d Cir. 2014). Here, the summary judgment record (and the video) shows that the officers subjected plaintiff to physical force without warning or the opportunity for plaintiff to comply with their orders. Instead, he was thrown to the ground. If the jury credits plaintiff's version of events, it can find the officers knowingly violated clearly-established law in throwing him to the ground. That means plaintiff can win the case, and the appeal is denied.

Plaintiff also pursues a failure to intervene claim. These cases are difficult in the excessive force context because normally the use of force happens so fast that the other officers cannot take action to prevent the constitutional violation. But this claim survives summary judgment also. The Court of Appeals (Lynch, Park and Williams [D.J.]) reminds us that "whether the officer had a realistic opportunity to intervene is normally a question for the jury" unless the evidence shows otherwise. The Court of Appeals holds that this is one of those close cases alleging failure to intervene that will go to the jury.

Michael Cohen loses Bivens claim against Trump and other constitutional retaliators

In 1971, the Supreme Court held that civil rights violations against federal officials may be remedied through a Bivens action. Bivens was the name of the case that said this. It implies a constitutional remedy similar to cases under Section 1983, which are brought against state defendants. But ever since that time, we have had a Bivens problem. This case highlights that.

The case is Cohen v. Trump, a summary order issued on January 2. Michael Cohen used to to be Donald Trump's attorney and fixer. As you probably know, they had a falling out after Cohen used his money to pay off a porn star who claimed she and Trump had an affair. Trump reimbursed Cohen, but only Cohen went to jail over this campaign finance violation. While in jail, Cohen worked on a memoir that painted Trump in a negative light. Cohen claims that, after he was given early release from federal prison in the wake of the COVID pandemic, he was remanded back to federal prison where he spent 16 days in solitary confinement with bad ventilation and no air conditioning. A federal judge eventually granted Cohen's writ of habeas corpus, ruling that Cohen was remanded back to prison in retaliation for writing a book that criticized Trump. Had a governor done this, Cohen would have a good Section 1983 claim. But Trump and the other defendants are federal officials, so Cohen has to invoke Bivens.

Cohen's constitutional lawsuit against Trump and the other federal officials who caused his remand to prison fails because the Supreme Court has, over the years, narrowed Bivens to the point that nearly all Bivens claims fail. Here is the unforgiving, two-part legal standard:

The first step requires a court to determine “whether the request involves a claim that arises in a ‘new context’ or involves a ‘new category of defendants.’” We interpret “new context” broadly, and a context is “‘new’ if it is ‘different in a meaningful way from previous Bivens cases decided by’” the Supreme Court. If a claim arises in a new context, the second step requires a court to determine whether “there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’”

My guess is the Supreme Court will someday dispense with Bivens claim altogether. For now, Bivens is still on the books, but it is barely breathing. Cohen loses "because there is reason to hesitate before extending Bivens to this new context. Cohen sues a former President, a former Attorney General of the United States, FCI Otisville’s warden, and officers and agents of the BOP and the PTS. Cohen’s Fourth Amendment claim involves 'new categor[ies] of defendants' that were not contemplated in Bivens." Cohen also loses because he did get some relief from this governmental misconduct in the form of a favorable habeas ruling from Judge Hellerstein that sprung Cohen out of prison on First Amendment grounds. That ruling did not award Cohen any damages (habeas rulings do not provide for damages) but it did get Cohen some relief. Under Bivens, that's enough.