Amazon partially wins unfair labor practice appeal

Amazon is one of the largest retailers in the world but few of its warehouses are unionized. This case arises from a unionization effort, where an Amazon employee, Bryson, was terminated following a warehouse parking lot protest that turned into a verbal altercation with a coworker about Amazon's COVID protocols in March 2020. 

The case is National Labor Relations Board v. Amazon.com, issued on June 12. The National Labor Relations Board petitioned to have Bryson reinstated at a time when workers were trying to unionize, as the NLRB believed Bryson's termination would chill unionization activity.  This dispute ultimately wound up in federal court, which said there was reasonable cause to believe that Amazon committed an unfair labor practice in firing Bryson, and that Amazon had to cease and desist from firing any employee who engaged in protected activity. The court, however, declined to order Bryson's reinstatement.

The Court of Appeals (Livingston, Chin and Wesley) finds that the district court abused its discretion in issuing the cease and desist order because it did not properly support its holding that the cease and desist order was just and proper after concluding that Bryson did not have to return to his former position. Injunctions under the National Labor Relations Act constitute an "extraordinary remedy" that must be equitable. 

The district court did not explain what in the record supported its finding that the cease and desist order was just and proper. While firing active and open union supporters contemporaneous with their union activity may justify an injunction under the NLRA, it does not appear that Bryson's termination had a negative impact on the union organizing, as employee interest in the union actually increased after Bryson was fired, and the employees voted in the union to represent them.

The Court of Appeals finds this is a "unique" case. It sums up this way: "We by no means suggest that cease-and-desist orders can never be appropriate in resolving labor disputes, nor do we purport to restrict a district court’s flexibility in fashioning equitable relief.  Rather, our holding is narrow: the absence of explanation justifying relief, coupled with the district court’s explicit, undisputed findings in rejecting the request to order Bryson’s reinstatement, cast serious doubt on the propriety of this cease-and-desist order. The district court’s injunction is therefore vacated as to parts (1)(a) and (1)(b)."

Disabled lawyer cannot sue Board of Law Examiners under Americans with Disabilities Act

This case has been litigated for years, having already reached the Court of Appeals once. It raises complicated issues surrounding New York's obligations to accommodate disabled bar exam test-takers. In 2021, the Second Circuit held plaintiff cannot prevail under the Rehabilitation Act because the bar examiners had not received federal funding for the tests, even if the Unified Court System did receive such funds. The case returns to the Second Circuit, which holds this time that plaintiff cannot prevail under the Americans with Disabilities Act, either. It looks like the case is over.

The case is TW v. New York State Board of Law Examiners, issued on July 19. Plaintiff was denied certain test accommodations in the past, and therefore failed the bar exam twice. TW eventually passed the bar exam after receiving certain accommodations, and plaintiff alleges the prior accommodation denials led to lost job opportunities. The lost income is the basis for this lawsuit.

Generally, the Eleventh Amendment says you cannot sue the states, but there are exceptions, like if the state waives sovereign immunity. The question in this case is whether the Board of Law Examiners is an arm of the state. If it is, then TW cannot bring this lawsuit. The courts have devised a multi-part test in determining if an entity is an arm of the state. The Court of Appeals(Livingston and Nardini) sides with the Board of Law Examiners on this issue, holding that the Court had already reached this conclusion in the 2021 appeal. The Court will not reject its reasoning from three years ago.

The next argument is that the Board abrogated its sovereign immunity. This analysis is as complex as determining if an entity is an arm of the state. Plaintiff loses on this point because TW's complaint does not implicate the kind of constitutional right that would abrogate sovereign immunity and allow test-takers like TW to bring this case. For those who are interested, the Second Circuit applies the obscure and complex "congruence and proportionality" test that the Supreme Court devised a few decades ago to resolve this issue. It does not appear that Congress, in enacting the ADA, was focused on this issue, which further cuts against piercing sovereign immunity.

Finally, the Court holds that TW cannot recover declarative relief that the Board violated the ADA in denying the prior test accommodations. While such relief can also pierce sovereign immunity, TW cannot do so because the relief sought is retrospective, not prospective. Since TW cannot recover injunctive relief, either, the final argument in favor of bypassing sovereign immunity is also rejected.

COVID-19 university shutdown claim is revived on appeal

When the COVID-19 pandemic came upon us, I imagined there would be some lawsuits growing out of the shutdowns and even the vaccine mandates. But I did not anticipate that people would sue colleges and universities for charging full admission for remote classroom instruction. This case survives the appellate process and returns to the district court.

The case is Yodice v. Touro College and University System, a summary order issued on 19. Plaintiff and a potential class of plaintiffs sued Touro's College of Dental Medicine. It all started when Touro switched to remote learning in March 2020 when COVID-19 shut down the world. Plaintiff sues for breach of contract "for certain fees for services and activities that students could no longer access after Touro switched to remote instruction." They also claim that Touro is liable for false advertising and deceptive practives over its marketing practices relating to in-person instruction. Finally, on the unjust enrichment theory, they seek tuition reimbursement arising from Touro's switch to remote instruction.

The tuition reimbursement claim is reinstated (the district court dismissed that claim) because the Second Circuit previously held that such claims arising from the pandemic shutdown are viable. That case was Rynasco v. New York University, 63 F.4th 186 (2d Cir. 2023). The breach of implied contract case/tuition reimbursement claim is back on the docket. While Touro points to a disclaimer in its course catalogue as a defense to this case, the Court of Appeals (Raggi, Lohier and Wesley) says the disclaimer is too broad to defeat the implied contract claims. The Court notes that in a similar case against Pace University, the disclaimer was enough to fight off the lawsuit because it said students would face the risk that an unforeseen or emergency event outside the college's control might force an emergency closing. No such language for Touro, says the Court. The consumer fraud claim (under the General Business Law) also survives appeal and returns to the district court for resolution.

The case returns to the district court to take on other issues that Touro raises on appeal, but which the district court did not resolve: an "impossibility" defense and the claim that plaintiff lacks standing to assert claims on behalf of the potential class action plaintiffs. A remaining claim -- that Touro took money in student fees without providing any services -- is dismissed, as plaintiff does not identify which services are in issue. The unjust enrichment claim is also dismissed, as it is duplicative of the breach of contract claim, which was also dismissed in the district court.

Sexual assault default judgment is vacated on appeal

This is an unusual case involving sexual assault, a default judgment, and a jury verdict that rejected the assault allegations. 

The case is Henry v. Oluwole, issued on July 15. Plaintiff worked for a hospital in Connecticut. She claims defendant Oluwole sexually assaulted her at work. She sued Oluwole and the hospital, asserting assault, battery, and other state law claims like false imprisonment, intentional and negligent infliction of emotional distress, and negligence. Oluwole defaulted: he did not file an answer because he was in a serious motorcycle accident, and years passed before he entered the case. Since Oluwole defaulted, the district court entered a default judgment against him, and following a damages hearing, the district court awarded plaintiff $100,000 in damages. Then case went to trial against the Hospital, but the jury determined that Oluwole had not engaged in any tortious conduct against her through assault or battery. The hospital therefore won the trial because plaintiff's case against the hospital was premised on the assault and battery claim.

Do you see the problem? We have a default judgment against one defendant for actions that a jury found, in a case against a related defendant, did not happen. The district court, following the trial against the hospital, vacated the default judgment against Oluwole on the assault and battery. But it did not vacate the default judgment against this defendant on the other state law claims: IIED, NIED, false imprisonment, and negligence. The Second Circuit vacates the full default judgment on all claims, including those other state law claims.

The leading case on this issue is Frow v. De La Vega, 82 U.S. 552 (1872), which said that a default judgment that creates an "inconguity" with a judgment on the merits is "unseemly and absurd, as well as unauthorized by law." Frow is an old case, but it's still good law. The Second Circuit (Menashi and Raggi, with Judge Kearse in dissent) finds that the state law claims that survived the verdict against the hospital are not consistent with the claims that plaintiff lost in her trial against the hospital, because they all grew out of the same allegations relating the sexual assault.

Second Circuit rejects Bivens claim against U.S. Marshall

If you want to sue federal officials for constitutional violations, you have to bring a Bivens action, named after the 1971 Supreme Court case that recognized such claims even though no federal statute authorizes such claims. (We do have a federal statute that allows you to sue state and local officials for constitutional violations, known as Section 1983). Since Bivens claims are judge-made, the Supreme Court has rarely allowed anyone to actually bring such a claim, expressing telling the lower courts to limit its application. That plays out here, and the plaintiff, who claims U.S. Marshalls and court officers used excessive force while restraining him in the courtroom, loses the case.

The case is Edwards v. Gizzi, issued on July 12. Plaintiff yelled at the federal judge during sentencing following his conviction for sexual activity with a minor. During his tirade, plaintiff got aggressive and lunged toward the Assistant United States Attorney. The U.S. Marshall restrained plaintiff, breaking his arm. Hence the Bivens claim.

Did you know that the Supreme Court has only twice recognized claims under Bivens? It held in 1979 that you can sue for employment discrimination under Bivens. It held in 1980 that a federal prisoner could sue his jailers under Bivens. But that was a very different Supreme Court. All the other Bivens claims over the years have been rejected, and the Court has told us over and over (about 12 times) that Bivens has limited application, as cases like this really should be permitted by federal statute, not Supreme Court case law. My prediction is that Bivens will be overturned for good one of these days. 

Anyway, Bivens' limited application does not prevent people from bringing these lawsuits. Even I tried to win a Bivens case about 15 years ago and lost in the Court of Appeals. That was plaintiff's approach here. But Judge Park, writing for the 2-1 majority, and over Judge Parker's dissent, applies the two-part test in determining if plaintiff may proceed here. Plaintiff fails both tests. First, this case arises in a new context (an excessive force claim under the Eighth Amendment, and a claim against U.S. Marshalls and court security). A new context is no place for a Bivens case, the Supreme Court has said. In addition, there are no special factors that would permit a Bivens claim to proceed. The "special factors" test is the second part of the Bivens test. This is so because there are other ways for plaintiff to win his case, in particular a claim under the Federal Torts Claims Act. 

High school may censor George Floyd sonnet from student literary magazine

The Court of Appeals holds that a high school was able to censor a student publication by rejecting a student-written sonnet about the George Floyd killing.

The case is Kristoffersson v. Port Jefferson Union Free School District, a summary order issued on July 12 Student speech rights in the high school setting are governed by a few Supreme Court rulings, including the Hazelwood decision from 1988, which gives school principals broad rights to edit and censor school-sponsored publications. Few cases prevail under the Hazelwood ruling, and this one fails, as well.

The school would not allow the high school literary publication to run plaintiff's poem about Floyd, whose murder gave rise to nationwide protests in 2020. The complaint alleges as follows:

In April 2021, shortly after a jury found Derek Chauvin guilty of Floyd’s murder, R.R. wrote a sonnet in iambic pentameter with the title “Derek Chauvin’s Ode to George Floyd: A Dark Sonnet.” According to the complaint, the sonnet was intended to “reflect the contemptuous racial hatred demonstrated by a white figure of authority for a helpless African American,” “capture the deeply bred racially motivated cause of the death of George Floyd,” and “convey the intense reason for the nation-wide reaction to Chauvin’s murder of George Floyd.”

While the school district told the plaintiff that her sonnet was "very well-written," it denied its publication on the basis that it would "create adverse emotional reactions and strife in the Port Jefferson community, amongst students and faculty, due to the sonnet's allegedly controversial content." 

At first glance, it might look like plaintiff has a great case, as the school district's decision appears to be pure censorship. And, besides, who is the school to claim that a sonnet like this will cause serious problems at the school? But, again, the Hazelwood decision governs this case. Hazelwood says the school may generally restrict speech in school-sponsored publications unless the district is censoring one political viewpoint over another. That is not the case here, as the district did not allow a contrary viewpoint on the George Floyd case to be published, and, in this Rule 12 context, plaintiff's claim that the school did not want to offend the white majority in the student body is conclusory and devoid of additional factual allegations that might allow this case to proceed any further. Content-based discrimination is legal under Hazelwood; viewpoint-based discrimination is not legal. Since this is a content-based discrimination case, plaintiff loses.

The Supreme Court lately has been reexamining prior precedents and has even rejected them decades after they were initially decided. Although the Justices who decided Hazelwood are long gone, I seriously doubt Hazelwood will be reversed by the Supreme Court, at least not this incarnation. I do not see a movement to overrule Hazelwood, and while the Court has extended broad First Amendment protections in other contexts (campaign finance, union dues, religious speech), the Court is not prepared to second-guess high school authorities on what can and cannot be published in student publications. The Second Circuit (Raggi, Menashi and Nathan) has no power to ignore Supreme Court rulings, and that dooms this case.

As a former high school and college journalist who did professional journalism for a brief period before going to law school, I can relate to plaintiff's frustration in not having her sonnet published. In the spirit of high school journalists everywhere, I will publish it here, taken from the trial court ruling:

From Momma's hands, you had not any chance. The street, the `hood made you so young ashamed To stand tall, to control your circumstance. "Black man, it's you we'll crack," white men proclaimed; "Stay down," they say, your fate is in our hands. Obey, ok, obey me, I'm the cop Who kneels upon your naked soul, who stands On top your darkened head until you stop Your sorry cry for mamma; take no breath, I bring justice here, pressed upon your neck. If I decide, you now face certain death, A fate deserved, `cuz you passed a bad check. You can't breathe? Then cease your black man drama, I will make you weep for "Mamma! Mamma!"

Wedding photographer has potential free speech claim in rejecting same-sex weddings

This case pits New York's prohibition against sexual orientation discrimination with the Supreme Court's recent cases holding that religious businesses may discriminate against gay and lesbian clients on account of their religious beliefs. 

The case is Emilee Carpenter, LLC v. James, issued on July 12. The plaintiff is a wedding photographer who does not want to service same-sex weddings. She brought this lawsuit seeking a court declaration that New York's anti-discrimination statute (in the context of public accommodations, such as wedding photography) cannot override the constitutional protection against forcing people to violate their religious beliefs. In this case, plaintiff's religious beliefs are opposed to same-sex weddings. She also asserts that forcing her to service same-sex weddings would could constitute coerced speech in violation of the First Amendment.

This case was argued in September 2022. In the interim, the Supreme Court issued 303 Creative LLC v. Elenis, 600 U.S. 570 (2023), which held that Colorado's public accommodations law violated the First Amendment because it compelled speech in a similar case: a graphic designer did not want to service same-sex weddings in her website business, which qualified as "pure speech." Plaintiff in this case says 303 Creative helps her cause, as the wedding photography business is expressive activity. The Court of Appeals (Carney, Bianco and Nathan) agrees, and reverses the Rule 12(b)(6) dismissal, holding that plaintiff has plausibly asserted a First Amendment claim, notwithstanding the New York statute that prohibits discrimination on the basis of sexual orientation.

But plaintiff is not entitled to a preliminary injunction this early in the case, enjoining enforcement of the New York statute as to her wedding photography business. In the 303 Creative case, the Supreme Court expressly declined to hold whether such photographers engage in expressive conduct such that the First Amendment allows them to bypass the anti-discrimination statutes. We are going to need a factual record to determine if this is really a free speech case, or whether this is a mere business case for which the First Amendment provides no protection.

Nor is plaintiff able to win under the Free Exercise Clause, which protects religious liberty. Under the Supreme Court's free exercise cases, a facially-neutral statute cannot violate the Constitution if it applies to everyone (or is "generally-applicable," the clunky phrase the Court uses in these cases). The New York law is generally-applicable and does not single out religious practices for punishment. Under the rational-basis standard of review, the New York statute is constitutional as applied to plaintiff because New York has an interest in combating discrimination.

Metro-North may be liable for intoxicated taxi driver's accident

This is a personal injury case brought under the Federal Employers' Liability Act (FELA). Plaintiff worked for Metro-North Railroad, which called her a taxi ride home. The taxi driver, who had no connection to the railroad, was intoxicated and got into an accident, injuring the plaintiff. Is Metro-North liable for this?

The case is Francois v. Metro-North Commuter Railroad, issued on July 11. Your first instinct is that the railroad would not be liable because it did not employ the taxi driver. But FELA is an interesting statute. "There is a considerably more relaxed standard of proof for determining negligence in FELA cases, and a strong federal policy in favor of letting juries decide these cases." The Second Circuit said that in 1993, and it says it again in this case. The other relevant principle is that, "at the summary judgment stage, a FELA action must not be dismissed . . . unless there is absolutely no reasonable basis for a jury to find for the plaintiff." See the word "absolutely"? You don't see that in other summary judgment contexts. It means we usually let these cases go to trial.

This case will go to trial. First, however, the Court of Appeals holds that the railroad is not directly liable for plaintiff's injuries because there is no evidence that Metro-North knew the driver had a propensity to drink before driving, or that the driver would drive unsafely. That claim is gone.

But the railroad may be vicariously liable for the accident. This will be up to the jury. Metro-North concedes the taxi driver acted as its agent in driving plaintiff. And while the taxi company served as an intermediary in that it dispatched the taxi driver, the railroad does not argue that the intermediary severs or affects the agency relationship between the railroad and the driver. 

The railroad may be vicariously liable even though the driver had been drinking, as the prior act of drinking to the point of impairment does not mean the driver was not working within the scope of his employment. The key here is "scope of employment," a legal term of art that means someone's bad acts are still imputed to the company so long as he was still doing his job. "Just because a driver was intoxicated when driving does not mean that he was acting outside the scope of his agency, but only that he failed to use reasonable care under the circumstances." The Second Circuit cites a Seventh Circuit case for that proposition, which is now good law in the Second Circuit. "Although the prior act of drinking alcohol was outside the scope of the driver's agency, the subsequent act of driving his taxi while on duty was at least arguable within it."

Finally, while the railroad argues that it was not foreseeable that the driver would be impaired, that is not enough for the railroad to win summary judgment. Here is how the Court of Appeals frames this issue:

Again, in terms of direct liability, Francois introduced no evidence that Metro-North had any reason to suspect that the taxi driver would be impaired when it hired him. But in terms of vicarious liability—when the tortfeasor is the taxi driver, rather than Metro-North itself—we ask a broader foreseeability question from the railroad-principal’s perspective:

What is reasonably foreseeable in the context of respondeat superior is quite a different thing from the foreseeable unreasonable risk of harm that spells negligence. When we talk of vicarious liability we are not looking for the employer’s fault but rather for risks that may fairly be regarded as typical of or broadly incidental to the enterprise he has undertaken. And we look at “the harm that is likely to flow from the employer’s activity despite the reasonable precautions that might be taken.” In sum, for vicarious liability, courts examine the foreseeability of a general, rather than specific, risk of harm.

Inmate wins ADA appeal arising from slip and fall in his cell

This disability discrimination case was filed by an inmate in Connecticut who alleges that the jail failed to stop a plumbing leakage in his cell, causing him to slip and fall on the water, exacerbating his preexisting injuries. The district court rejected the case upon finding plaintiff cannot show the injuries resulted from discriminatory intent. That's not how the Court of Appeals sees it, so the case returns to the district court for additional rulings.

The case is Sanchez v. Butricks, a summary order issued on June 10. Plaintiff is disabled and walks with a cane. In reasonable accommodation cases like this one, the plaintiff has to show the following:

When assessing a reasonable accommodation claim, we ask if the plaintiff, “‘as a practical matter[,]’ was denied ‘meaningful access’ to services, programs or activities to which he or she was ‘legally entitled.’” Hamilton v. Westchester County, 3 F.4th 86, 91 (2d Cir. 2021) (quoting Wright v. N.Y. State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016)). There is no requirement that the plaintiff show discriminatory intent to make out a reasonable accommodation claim.

Looking at the case from that angle, plaintiff has a better shot at victory. The Second Circuit says plaintiff may have a case. "Sanchez specifically alleged that he told the maintenance supervisor and Defendant Rodriguez about the leak and requested it be fixed on April 27, 2020, over two weeks before his fall on May 15th." As it happens, Rodriguez claims he “was transferred out of [Sanchez’s] unit at or near April 24, 2020,” and had no “further interaction with Sanchez.” But Sanchez disputes this factual assertion. That brings us to basic summary judgment principles. "If a jury were to credit Sanchez over Rodriguez, it could find that a prison official was aware of the dangerous leak a full eighteen days before Sanchez fell and injured himself."

But we have another problem: the Eleventh Amendment, which prevents you from suing the state for certain statutory violations. Cases hold that Title II violations under the Americans with Disabilities Act cannot be enforced against the state. Defendants did not assert this argument in the district court. They raise this issue on appeal, however. This is a complex area of the law. The Second Circuit notes that while it has held in the past that plaintiffs in Title II cases must show the violation was motivated by discriminatory intent, or ill-will because of the plaintiff's disability, that rule only applies to Title II violations that also violate the Equal Protection Clause. But Title II plaintiffs may argue that their violations are premised upon other Fourteenth Amendment rights. Plaintiff argues this exception applies to him because the Fourteenth Amendment protects prisoners who rely on public entities for basic services. 

As you can see, this issue is complex. Since the district court did not analyze the issues set forth above under the Eleventh Amendment, the case is remanded for the trial court to deal with all of this in the first instance.
 

Police shooting case will go to a jury

This case involves the use of deadly force to apprehend a fleeing motorist. The motorist was shot and killed by a Connecticut police officer. The decedent's family sues the officer for wrongful death, and the case will proceed to trial because the record does not conclusively show that the officer had cause to shoot the driver.

The case is Vega-Colon v. Eulizier, a summary order issued on July 8. After a different officer had reason to believe the driver was using unauthorized license plates, Eulizier approached the driver on foot. The following facts seem to be undisputed, at least in part based on video footage:

the parties dispute whether Eulizier intentionally blocked the road in front of the Infiniti, but soon after Eulizier performed this maneuver, Vega-Cruz lost control of the Infiniti and came to a stop. Eulizier then hit the front of the Infiniti with his vehicle, blocking it on the side of the road. He then exited his vehicle and drew his gun, yelling “show me your hands.” The Infiniti had begun to reverse in the direction of the road when [Officer] Salvatore arrived; Salvatore collided with the left side of the Infiniti. Eulizier, on foot, came around the front of Salvatore’s vehicle and stood near the front driver’s side of the Infiniti.

The dispute arises from what happened next. Did Eulizier intentionally step in front of the Infinity or merely move himself there? What we do know is this officer fired two shots into the windshield, killing Vega-Cruz. As the trial judge noted in denying this officer's motion for summary judgment on qualified immunity grounds, “[t]he parties dispute . . . the series of events leading up to [Eulizier’s] approach—specifically, whether he intentionally stepped in front of the vehicle or whether it was happenstance that as he came around Salvatore’s vehicle, he ‘found himself’ near the front of the Vega-Cruz vehicle.” The parties also dispute whether Vega-Cruz was moving his car slowly and was turning away from Eulizier, trying to avoid him as he tried to flee the scene. Eulizier says the driver accelerated towards him and he therefore shot the driver out of necessity.

These factual disputes cannot be resolved on a summary judgment motion. The jury will have to decide whether the officer reasonably fired into the car to protect himself, or whether firing the gun was excessive because the driver was trying to get away on his own. The law is clear that you cannot use deadly force to apprehend a fleeing motorist unless the officer has probable cause to believe the suspect poses a significant threat of death or serious physical injury to anyone, including the officer. 

The Court of Appeals (Bianco, Robinson and Merriam) finds that the jury must resolve these factual disputes. It also finds that if the jury credits the factual arguments advanced by Vega-Cruz's representatives at trial, it could also find that the officer violated clearly-established law and cannot invoke qualified immunity. But a win for the family in the Second Circuit does not automatically translate into a win for the family at trial. As the Court of Appeals notes, "the split-second nature of the decision to use force is a relevant and often important factor in assessing the objective reasonableness of the use of force and the parameters of qualified immunity in excessive force cases."

What the Supreme Court did in the Presidential immunity case (Trump v. United States)

The Supreme Court has issued its most important case on Presidential authority in decades, and it might be the most important such case in the history of the Supreme Court. The 6-3 majority holds for the first time that the President enjoys certain implied immunities that will make it difficult, but not impossible, to charge a former president for criminal conduct. 

The case is Trump v. United States, issued on July 1. This case reaches the Court because, in summer 2023, a grand jury in Washington, D.C., indicted former president Donald Trump arising from his refusal to accept the results of the November 2020 election. These acts included conspiring with others to advance knowingly false claims of election fraud to get state and local officials to change the electoral votes in his favor, organizing a fraudulent slate of electors in targeted states to undermine the real electors chosen on Election Day, strong-arming the Vice President to ignore the certification on January 6, 2021 so that Trump may take the oath of office on January 20, 2021, and pushing Congress to delay the certification on that date. These charges are shocking and unprecedented in American history.

The charges are so unprecedented that the Supreme Court has never had a case like this, and it has never determined when and under what circumstances a former President may face prosecution for crimes that he committed in office. (Bear in mind that during the Watergate scandal, when President Nixon resigned in 1974, it was assumed that Nixon could be charged criminally for covering up crimes relating to his re-election campaign). Without any precedents on point, and without any provisions in the Constitution that directly speak to this issue, the Court has to decide upon a legal framework.

As an aside, the Court frequently must decide upon a legal framework in interpreting the Constitution, which mostly speaks in generalities and statements of principle. For that reason, nearly all constitutional doctrine is  judge-made. It is the Supreme Court Justices who determine what the constitutional provisions, and the amendments (including free speech, due process, search and seizures, etc.) really mean. The Court does this by devising multi-part legal standards, often incorporating a balancing test that weighs competing interests. For example, in the free speech context, that usually involves balancing the right to expression with the government's need to maintain an orderly society. These legal frameworks are then applied by the lower courts, and lawyers must study them in preparing their cases or giving legal advice. Constitutional law is really political science, and the Justices are the most powerful political scientists in the country, determining how our society should be organized in light of the principles in the Constitution.

Chief Justice Roberts writes the majority opinion. He draws from the overriding principle that the Constitution gives the President enormous authority and discretion as the head of the Executive Branch and the sole official elected by the nation as a whole (along with the Vice President). As such, Roberts writes, "There accordingly exists the greatest public interest in providing the President with the maximum ability to deal fearlessly and impartially with the duties of the office," without having his energies "diverted by proceedings that might render him unduly cautious in the discharge of his official duties." That language derives from a Supreme Court case from 1982, Nixon v. Fitzgerald, which held (under another judge-made principle) that a former President cannot face civil liability for actions undertaken in office. That case did not involve criminal liability, but it's the closest case we have to the Trump indictments, though Roberts notes that a former President would be exposed to far fewer (if any) criminal prosecutions than civil lawsuits by federal employees or other victims of his policies. These principles lead to this overriding guideline, premised on the concern that fear of future criminal liability (once he leaves office) may interfere with the President's duty make decisions as he sees fit:

Although the President might be exposed to fewer criminal prosecutions than the range of civil damages suits that might be brought by various plaintiffs, the threat of trial, judgment, and imprisonment is a far greater deterrent. Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.

The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under “a pall of potential prosecution,” raises “unique risks to the effective functioning of government.” A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, “the independence of the Executive Branch” may be significantly undermined. The Framers’ design of the Presidency did not envision such counterproductive burdens on the “vigor[]” and “energy” of the Executive.

The majority in this case breaks down Presidential actions into three parts, each with different consequences under the criminal law:

1. Presidential decisions drawing from his core executive duties, as expressly set forth in the Constitution, can never give rise to a criminal prosecution. This would include decisions relating to pardons, the removal of subordinate executive officers, and other decisions that fall within his exclusive constitutional authority.

2. As for other Presidential decisions drawing from his official duties, the President has presumptive immunity from criminal prosecution. The "official duties" element of this test is quite broad. Roberts says they include any Presidential acts "within the outer perimeter of his official responsibility." The "outer perimeter" qualifier is key. That would include just about anything the President does in office, including addressing the public. The Court writes that "the immunity we have recognized extends to the outer perimeter of the President's official responsibilities, covering actions so long as they are not manifestly or palpably beyond his authority." The prosecutor can overcome that presumption in certain circumstances, but those circumstances appear to be limited. This is the most controversial part of the majority's ruling. Roberts writes:

Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. . . . At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”

Read the italicized language carefully. The President's actions under his official authority (which covers a wide range of decisionmaking) is presumably untouchable under the criminal laws unless the prosecutor can convince the trial court that the prosecution would not intrude on that presidential authority. That legal principle is vague, and the judges and lawyers who have to apply this new constitutional rule are going to have to do the best they can. I am not sure what this language really means.

3. The President's unofficial actions are not immune from criminal liability. 

We have limited discussion on (1) and (3). This is really an "official act" case. Since this case reaches the Supreme Court prior to trial and without a fully-developed factual record, the Court provides guidance for the trial court judge who will have to review and apply this ruling. This portion of the ruling has some critical points that further develop the new constitutional rules devised by the 6-3 majority.

First, Presidential motives are not relevant in determining whether his acts violate the criminal law. We look to his actions, not his intent. This concept is normally foreign to the criminal law, which usually examines the criminal defendant's motives for committing a bad act. But in the Presidential context, the Court writes, the concern is that the President might worry that "his motives that control his official conduct may, at any time, become the subject of inquiry." The guiding principle for this is, again, the need for the President to make decisions in the national interest without being unduly second-guessed years later, as such second-guessing may put a chilling effect on bold Presidential decisionmaking. Note that the Court's concern about unhampered Presidential decisionmaking assumes that other Presidents in the future might take their duties more seriously than Trump and read their briefing books and have rational discussions with their advisors. Supreme Court Justices will tell you that their rulings are for the ages and cannot always take into account the peculiarities of the parties before them.

Second, official acts are immune from criminal prosecution and cannot be used in any trial against a former President, including as background evidence or evidence that would place his unlawful acts in context. This rule is also unique to this case. In many trials, the judge may allow the jury to hear otherwise inadmissible evidence but with an instruction that that evidence may be considered for a limited purpose. This comes up a lot with hearsay testimony; it may be relevant on a limited point at trial, and we presume that juries take that limiting instruction seriously. But Roberts' concern is that using official acts for any purpose would "invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge," and "raise a unique risk that the jurors' deliberations will be prejudiced by their views of the Presidential policies and performance while in office." By this point in the ruling, Roberts is drawing very little from prior Supreme Court cases and is devising general principles that support the majority's views of how a President must make decisions without the chilling effect of a possible criminal prosecution after he leaves office.

Third, looking to the allegations against Trump, the majority says that:

1. Trump's leveraging and even threatening his Justice Department to convince certain states to offer up a fraudulent set of electors draws from the core constitutional function outlined above in (1) because he is allowed to consult with the Justice Department in order to ensure the laws are faithfully executed, no matter how we define that phrase. Relatedly, Trump's threat to fire the Acting Attorney General as part of his scheme to overturn the election results is absolutely immune from criminal prosecution, as the President has authority to remove his appointees, even if he does so to promote a sham or improper purpose.

2. What about Trump's arm-twisting the Vice President to reject the certification on January 6, 2021 before Congress? This was an official act, and therefore presumptively immune, but the President actually has no role in the certification, so the prosecutor may be able to proceed on this charge, as it may not intrude upon Presidential authority. On the other hand, the President is expected to talk and consult with his VP, so this sequence may be absolutely immune, as well. The prosecutors in this case will have to overcome the presumption of immunity on this issue, and the trial court will make the final decision, subject to review by the Court of Appeals and then perhaps the Supreme Court.

3. As for Trump's arm-twisting state and local officials to reject the legitimate Electoral College certification in favor of sham electors, while Trump's lawyers argued that this was undertaken to ensure the integrity of the electoral process (a Presidential function), the prosecutors respond that there is no plausible source of constitutional authority for the President to authorize an alternate slate of electors in a way that would interfere with the votes of legitimate electors. The lower courts will have to sort this out.

You get the picture. Every constitutional doctrine has room for each side to make their arguments. That is the nature of constitutional balancing tests. Nothing is really predictable under the Constitution, especially when the issue reaches the Supreme Court, which may either be writing on a blank slate or ruling on a matter upon which the lower courts have disagreed. Most Supreme Court rulings therefore can go either way depending on the ideological makeup of the Court. 

In dissent, Justice Sotomayor is on fire, stating the majority is placing the President above the law and that our democracy may be imperiled by this ruling. She notes that the Nixon v. Fitzgerald precedent that the majority relies on for much of its reasoning bears little relationship to this case, as the Nixon case involved civil liability (and the possibility of hundreds of civil lawsuits after the President leaves office) and criminal cases against former Presidents will always be limited in number, and in fact have never happened in 250 years of American history. She notes that the Justices in the Nixon case, including conservative Justices appointed by Nixon himself, said the reasoning in that case would not apply in the criminal context. 

Sotomayor sums up this way: 

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

The majority and dissenting opinions offer starkly different views of constitutional law, each drawing from different constitutional and practical principles about how these cases might and should shake out in the unlikely event a former President is charged with criminal conduct. Bear in mind the six Justices in the majority were all appointed by Republicans, who generally endorse a "strong executive" model under the Constitution. Three of the majority Justices were themselves appointed to the Court by Trump. The three dissenters (all women) were appointed by Democratic Presidents. There is no "official" way to interpret the Constitution, which itself offers no guidance on how the courts should apply it. Constitutional law is man-made and woman-made, and it will always boil down to which side has more votes on a given issue. Broad presidential immunity from criminal liability gets six votes in this case, and the contrary view -- that no one is above the law, and we can trust the court system to treat every defendant fairly, no matter who they are -- gets three votes.

Naked police misconduct victims lose at trial, and on appeal

This police misconduct case went to trial: plaintiffs argued the defendant officers executed a search warrant and found the plaintiffs in the apartment but not the target of the warrant  Plaintiffs were sleeping when the officers entered the place, and both plaintiffs were naked. They claim the Fourth Amendment was violated because the officers unnecessarily saw them naked while executing the warrant. The plaintiffs lost at trial and they appeal to the Second Circuit, which agrees the case must be dismissed.

The case is Miller v. City of New York, a summary order issued on July 2. Plaintiffs smartly seek a new trial on the basis that the trial court issued bad jury instructions. This is always the best way to appeal from an adverse verdict since the trial court has no discretion or authority to charge the jury incorrectly. The problem is that plaintiffs' lawyers did not object to those charges, which imposes a difficult standard of review on appeal: plain error. You have to show the error was plain and affected substantial rights that seriously affected the fairness or integrity of the trial. That's a tough burden, and plaintiffs in this case cannot satisfy it.

One reason plaintiffs lose the appeal is because they argue now that the jury charge should have said the jury must find for Miller if it found that she was partially or fully naked when Defendant Penner searched her because there was no particularized suspicion that contraband would be found on them during the search. The Court of Appeals holds there is no established rule of law that categorically forbids limited searches without reasonable suspicion of individuals who are naked when the officers enter a dwelling. "We have never held that officers need reasonable suspicion in order to search or pat down a suspect who (like Miller here) was already nude when the officers arrived." Plaintiffs' challenges to the other jury instructions also fail because they did not challenge them at trial and they cannot show plain error. 

Finally, plaintiffs advance a more challenging argument than the jury charge appeal. They claim the jury had no choice but to find in their favor and they are entitled to judgment as a matter of law. 

Miller contends that the uncontroverted trial testimony established that Penner caused Miller to remove a blanket and expose herself to a male officer for several seconds while Penner helped Miller put on leggings.  According to Miller, this momentary exposure entitled her to judgment as a matter of law against Penner, because such conduct constituted a per se violation of the Fourth Amendment.

This argument may sound reasonable, but the Supreme Court has rejected it on worse facts than this. In Los Angeles County v. Rettele, the Court held in 2007 that the Fourth Amendment was not violated when officers executing a warrant ordered a naked man and woman out of bed in order to secure the room and preserve evidence. In that case, the undressed plaintiffs were exposed for two minutes. The Court of Appeals says if the plaintiffs could not win in Rettele, the plaintiffs in this appeal cannot win either.

Contradictory summary judgment affidavit dooms disability discrimination claim

In this disability discrimination case, the plaintiff sued the County of Westchester after he was terminated from his position as Director of Fiscal Affairs for the Board of Legislators. The district court granted summary judgment, finding the jury cannot find in plaintiff's favor because there is no evidence that the decisionmaker held an discriminatory intent. The Court of Appeals affirms, and the case is over.

The case is Daly v. Westchester County Board of Legislators, a summary order issued on July 2. Plaintiff's disability was his back injury. The supervisor who fired plaintiff was Benjamin Boykin, Chairman of the Legislature. While plaintiff never spoke with Boykin about his disability, the Court looks for circumstantial evidence that Boykin knew about it. 

The best evidence to show that Boykin knew about plaintiff's disability was plaintiff's summary judgment affidavit, in which he claimed to overhear Boykin tell another employee, "Dante is disabled." Dante is the plaintiff. Plaintiff also stated in his affidavit that Boykin and another supervisor, Power, pressured plaintiff to say he was unable to perform his job duties because of his disability. That sounds like great evidence that would support any claim for disability discrimination. But we have a problem.

As the Second Circuit sees it, the problem is that, when defendant's attorney took plaintiff's deposition, he was "asked if any reference was ever made by Boykin and Power about his disability, and he responded, 'No, not at all.'" What do we do about this contradiction? The Second Circuit has held that you cannot create an issue of fact on a motion for summary judgment with an affidavit that contradicts the sworn deposition testimony. The reason for this is the Court does not want people to "clean up" their cases when the motion is on the table when they had a chance to give clear testimony at deposition on a critical issue in the case. When that happens, such an affidavit looks suspicious.

You could argue that the contradiction was an illusion and plaintiff's testimony can be reconciled. More broadly, you could argue the contradictory affidavit creates a true issue of fact for trial and that it simply creates a credibility issue for the jury to sort out. I have no doubt that some juries may overlook the deposition testimony and instead credit the version of events set forth in the affidavit. My guess is, in addition to the Court's concern that parties will "create" an issue for trial at the last minute, the Court probably thinks the plaintiff will be beaten up on cross examination at trial to such an extent that the jury will disregard anything the plaintiff says in the case on any issue. Imagine a skilled civil defense lawyer impeaching the plaintiff at trial with contradictory sworn accounts.

Laws that target the homeless do not violate the Eighth Amendment

This case asks whether it violates the Eighth Amendment's prohibition against cruel and unusual punishments to make it unlawful to sleep or camp out on public property. The real issue is whether the Eighth Amendment makes it illegal to punish homeless people for public encampments.

The case is City of Grants Pass v. Johnson, issued by the Supreme Court on June 28. The Court rules, 6-3, that the law against public encampments does not violate the Eighth Amendment. Justice Gorsuch starts off the opinion with a lengthy discussion of homelessness problem in the United States, occasionally referring to them as "unsheltered." We then get to the legal issues, where Gorsuch clarifies what the Cruel and Unusual Punishment clause of the Eighth Amendment really means: it "was adopted to ensure that the new Nation would never resort to any of [the draconian] punishments or others like them." The clause "focuses on the question what 'method of punishment' a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense."

Is this a new framework for Eighth Amendment cases? I am sure a legal scholar will figure that out. Framing the issue that way provides the result: the Eighth Amendment is not offended when the government passes laws that allow the police to arrest homeless people for camping out in public. The question is not whether the government should outlaw this behavior but whether the punishments are cruel. They are not, the majority says, because in this case the initial offense is a fine and then punishment escalates after that, up to 30 days in jail. These are not atypical punishments for this behavior, the majority finds. Laws like this are constitutional.

Justice Sotomayor writes the dissent on behalf of Justices Kagan and Jackson. (These 6-3 rulings are going to be the norm for the next few years, until someone leaves the court and is replaced by an ideological opposite). Sotomayor writes that for some people, sleeping outside is their only option, and that laws in this case essentially punish people for being homeless. "This is unconscionable and unconstitutional. Punishing people for their status is 'cruel and unusual' under the Eighth Amendment," she writes.

The only precedent that potentially speaks to this issue is Robinson v. California, a 1962 Supreme Court case that held it violated the Eighth Amendment when the government criminalized drug addiction, essentially punishing people over their status. The 2024 Court is not the 1962 Warren Court, the most liberal in American history. I would note that all of the Justices who served on the Court in 1962 are dead, and all of their replacements are dead as well. This is a very different Supreme Court than the Warrren Court. The dissenters note that "This Court has repeatedly cited Robinson for the proposition that the 'Eighth Amendment ... imposes a substantive limit on what can be made criminal and punished as such."

The majority deals with Robinson by arguing that public camping ordinances are nothing like laws that criminalize drug addiction. The majority does not overrule Robinson, but it might do so someday. Gorsuch notes that the parties in Robinson barely framed that issue as an Eighth Amendment one and that the Court in 1962 turned it into an Eighth Amendment issue on its own. We know this because the the majority reviewed the parties' briefs in Robinson, which are on file somewhere at the Supreme Court. Justice Thomas would overrule Robinson right now. What it all means is the Robinson precedent has been whittled down to its facts.