Judgment against correction officer for excessive force is vacated

This is a case that civil procedure mavens will love. The plaintiff is an inmate who sued various correction officers under the Constitution, claiming they subjected him to excessive force. The attorney general's office withdrew its representation of one of the defendants over his failure to cooperate with the litigation. The trial court entered judgment against that officer in the amount of $50,000. So what's the problem?

The case is Moore v. Booth, issued on November 27. First, the background, plaintiff claimed the defendants assaulted him while he was having a seizure, causing plaintiff to lose several teeth and suffer hearing loss in one ear, among other injuries. Defendant Booth did not show up for a deposition or otherwise participate in the litigation, and the AG's office withdrew its representation of this defendant. This led the trial court to strike Booth's answer, and plaintiff won a default judgment against Booth. 

Here is the problem: the trial court did address this case on the merits for the other defendants, finding that plaintiff has no case because he did not exhaust administrative remedies in pursuit of his constitutional claim. Under the Prisoners Litigation Reform Act, you have to file an internal grievance with the jail before you can bring a lawsuit, even if the case alleges excessive force. 

What it means is that if plaintiff does not have a case against the other officers, he could not have had a case against Booth, even if Booth did not participate in the litigation. In 1872, the Supreme Court said that a default judgment cannot create an "incongruity" with a judgment on the merits. Courts have interpreted that case, Frow v. De La Vega, to mean that you cannot have inconsistent judgments. The judgment against Booth is inconsistent with the judgment in favor of the other correction officers. Here is the reasoning:

Applying the Frow principle to this case, we conclude that the district court abused its discretion when it entered a default judgment against  Booth  that  was  inconsistent  with  its  prior  judgment dismissing  identical  claims  against  the  four  other  officers. Thompson’s claims against each of the five officer defendants were identical. Each claim arose from the same alleged incident in which all five officers allegedly participated. Each claim was subject to the same exhaustion requirement under the PLRA. See Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.”). And because the claims against each of the officers arose from the same incident, the remedies Thompson was required to exhaust were the same.

The pitfalls of habeas petitions

This case highlights the complexities and pitfalls of habeas corpus petitions. The Court of Appeals finds that the criminal-defendant turned habeas petitioner cannot file a second petition under the habeas rules.

The case is Forbes v. United States, issued on November 21. Forbes was convicted of conspiracy to distribute controlled substances and unlawful possession of a firearm. He brought a habeas corpus petition, claiming the criminal convictions violated the U.S. Constitution. Those petitions were denied on the merits.Later on, Forbes asked the federal trial court for permission to file additional habeas petitions based on new evidence. The trial court denied that request, concluding that Forbes had not shown any entitlement to equitable tolling of the limitations period. That brings his case to the Court of Appeals.

Under the rules, you cannot file successive habeas petitions without an order from the Court of Appeals allowing you to do so. This means the trial courts lack jurisdiction to rule on the merits of successive claims, and the trial courts should transfer such claims to the Court of Appeals. Since Forbes had already filed a habeas petition with the trial court, he needed the Second Circuit's permission to file an additional petition. But he did not file such a motion in the Second Circuit and instead asked the trial court for more time to file the petition in that court.

The Second Circuit (Jabobs, Merriam and Cronan, D.J.) holds that the trial court did not have authority, or jurisdiction, to rule on Forbes' request for equitable tolling. The successive habeas petition could not be filed at all without permission from the Court of Appeals. This means the successive habeas petition in the district court was not authorized.

University student loses sex-discipline gender discrimination appeal

This plaintiff sues New York University for sex discrimination under Title IX, claiming he was unfairly disciplined over a sexual allegation because of his gender. The case was dismissed at the district court, and the Court of Appeals affirms, ending the case.

The case is Doe v. New York University, a summary order issued on November 20. You can sue universities for such discrimination under Title IX, but the courts will not allow the case to proceed without specific allegations demonstrating gender bias. Plaintiff cannot survive summary judgment in this case.

In his effort to prove gender bias, plaintiff relies on a spreadsheet showing NYU's disciplinary outcomes in sexual-misconduct proceedings, broken down by the respondent student's gender. As the Court of Appeals (Newman, Cabranes and Perez) writes, "Doe notes that NYU expelled four male and no female students during the 2015/16 through 2019/20 academic years. Female students, he notes, received only probation or suspension." Is this male/female disparate treatment enough to show that plaintiff himself was discriminated against because of his gender?

It is not enough, the Court of Appeals holds. "For data such as these to establish a genuine factual dispute, they must be sufficiently detailed to allow a jury to find that the comparators were similarly situated to the plaintiff in relevant respects, permitting a reasonable inference that a disparity in their treatment was due to gender bias." Authority for that proposition is found in Radwan v. Manuel, 55 F.4th 101 (2d Cir., 2022). But plaintiff cannot satisfy that test. The Court writes:

The spreadsheet to which Doe points us lacks that detail.  It indicates only the broad categories of misconduct that each female student was found to have committed: “Relationship Violence” for two students; “Sexual Harassment” for one; and “Stalking and Sexual Exploitation” for another. By contrast, Doe was found responsible for stalking, sexual harassment, sexual exploitation, and repeatedly violating a no-contact directive. Even drawing every permissible inference in Doe’s favor, a jury could not reasonably infer from this spreadsheet alone that NYU discriminated against him based on his gender.

Constitutional challenge to COVID-19 vaccine mandate fails in 2d Circuit

COVID-19 cases are still making their way through the federal courts. This one was filed by public sector employees in New York City who claim the vaccination mandates violate the U.S. Constitution. Plaintiffs lose their constitutional challenges on appeal.

The case is New Yorkers for Religious Liberty v. City of New York, issued on November 13, more than 1.5 years after the case was argued. These issues are complex, and prior to COVID-19, the federal courts had rare occasion to analyze the legality of vaccine mandates. We have a number of issues in this decision, which does not really break new ground and instead reiterates some of the holdings the Court of Appeals has handed down over the last few years on this issue.

1. Plaintiff's request to rescind the mandate is mooted because the City halted the mandate in February 2023, following oral argument in this case, and there is no reason to believe the mandate will ever return. Federal courts are not the forum for theoretical legal arguments, so without a live case or controversy, there is no argument that the mandate must be rescinded under the Constitution.

2. While plaintiffs want reinstatement to their old positions and backpay following the termination of their employment over noncompliance with the mandate, that argument fails, but not on mootness grounds. Even if the case were moot, prior harm may still yield compensation. But in this case, plaintiffs seek this relief through a preliminary injunction, which requires proof that they are likely to prevail on the merits and will suffer irreparable harm without obtaining the relief now. The problem for plaintiffs is that they filed their injunction motions after they were terminated, which means there is no specific present objective harm or a threat of any specific future harm. The damage has been done, and that means there is no irreparable harm. The damages due the plaintiffs will have to wait until the end of the case.

3. While plaintiffs claim the mandates violated the Free Exercise and Establishment Clauses (the two religious freedom provisions under the First Amendment), both challenges fail. The Free Exercise challenge fails because the vaccine mandate was facially-neutral and did not single out any religious practices. The Second Circuit held as such a few years ago in a related case, and that remains the law in this Circuit. As for the Establishment Clause challenge, the Court finds there is no evidence that any religious animus by statewide officials tainted the mandate process. 

En banc court directs criminal defense lawyers to advise natrualized citizens about certain risks of deportation

The Second Circuit normally hears cases in three-judge panels, drawn randomly from about 20-25 judges, about half of whom are full-time judges in active service. If the three-judge panel rules against you, the only remaining options are the U.S. Supreme Court or en banc review in the Second Circuit, where the dozen or so active judges hear the case as a whole. But that rarely happens. This Court of Appeals hears cases en banc maybe once every other year. This case was decided en banc, and the majority holds that a naturalized American citizen has a constitutional right to be told during their criminal sentencing that a guilty plea might jeopardize their citizenship. 

The case is Farhane v. United States issued on October 31. This issue is divisive enough that the en banc court decided to hear it, and the issue remains divisive, as eight Second Circuit judges held in favor of the plaintiff, and five ruled against him. This case may be on its way to the Supreme Court.

This case arose when the government decided that the plaintiff, a natrualized citizen, was not a person of "good moral character after determining that, among other things, he had lied on his citizenship application about whether he had ever committed any crime for which he had not been arrested. 

In 2010, the Supreme Court said that the Sixth Amendment requires criminal defense counsel to tell her client about the risk of deportation associated with such a plea. That case was Padilla v. Kentucky, 559 U.S. 356 (2010). In the case before the Second Circuit, the court, in a decision written by Judge Carney. holds that a naturalized U.S. citizen facing the risk of deportation following denaturalization proceedings has the same protection enjoyed by  a noncitizen facing the risk of deportation. If the lawyer fails to properly their client of this risk, then the client may argue that he was denied the effective assistance of counsel and avoid the consequences of their guilty plea.

In dissent, the judges state that the Court of Appeals got it "wrong" and that the decision departs from the rule that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on federal collateral review. Even if the government did not raise that objection in prior proceedings in this case, that does not matter, the dissenters state, because courts have discretion to overlook a forfeiture generally.

We do not see much ideological voting on the Court of Appeals: Republican and Democratic appointees often vote together. That is not always the case in en banc cases, where the disputes may have an underlying political overtone or the disagreements on a particular issue are more profound. The ideological make up of this en banc ruling is as follows: voting for the plaintiff: seven Democratic appointees and one Republican appointee. Voting for the government: five Republican appointees.

Second Circuit upholds some, but not all, of NY's gun regulations.

Ever since the Supreme Court issued the Bruen decision in 2022, federal courts have struggled to comply with its mandate that the Constitution prohibits modern gun regulations that do not resemble the ones in place when the Second Amendment was adopted long ago. This case examines some of those rules.

The case is Antonyuk v. James, issued on October 24. I discussed portions of this ruling at this link. For anyone who wants a thorough examination of gun laws throughout American history, this opinion is for you. If nothing else, the Bruen decision has forced federal judges to become experts in reviewing all the old gun regulations to determine if current gun laws run afoul of the Second Amendment. They used to call this "law office history."

The first question is whether New York's rule against carrying a gun in a sensitive location, such as a treatment center that provides health, behavioral health, or chemical dependence care or services, is constitutional. It is. The state has traditionally outlawed guns in these locations where vulnerable populations congregate.

The Court of Appeals (Jacobs, Lynch and Lee) next determines whether the state law prohibiting guns in places of worship violates the Second Amendment. Yes, some people want to bring their firearms into church for self-defense purposes. The problem is that after the district court struck down this provision, the State Legislature eliminated this requirement. That moots out the case. The Court of Appeals cannot rule on a provision that no longer exists, and the courts presume that the vacated law or regulation will not return anytime soon. 

We next consider the prohibition against firearms in parks and zoos. The Court provides a lengthy analysis on similar regulations throughout American history on this issue and finds that this regulation is legal because it is consistent with age-old laws against carrying a gun in often-crowded public squares, including city parks. The same holds true for zoos, as there is a national tradition of barring firearms where children congregate. The Court of Appeals notes that 70 percent of zoo visitors are children.

What about bars and taverns? New York bars firearms in these locations. Guns and alcohol can be a lethal mix, but the Supreme Court's Second Amendment framework necessarily requires extended analysis on this issue, also. We have age-old laws against intoxicated people buying and carrying firearms. Those old statutes bring the current New York laws within our national tradition, which means they are legal under the Second Amendment.

You get the point. The Court of Appeals further upholds New York's law against carrying a firearm in theaters, conference centers, and banquet halls. But the Court of Appeals strikes down New York's provision against carrying firearms during First Amendment public assemblies. Such a prohibition does not fall within our national tradition, the Court holds.

Court of Appeals upholds some but not all of New York's gun licensing scheme

Gun cases under the Second Amendment are becoming more commonplace ever since the Supreme Court over the last 15 years or so breathed life into what had been a dormant constitutional provision and held that you have an individual right to arm yourself. That was the Heller decision. Things became more complicated in 2022, when the Supreme Court held in the Bruen decision that gun regulations that do not resemble the ones in place when the Second Amendment was adopted are unconstitutional. That leads to this case, in which the Second Circuit upholds most but not all the challenges to New York's gun rules.

The case is Antonyuk v. James, issued on October 24 after kicking around the courts for years, including a trip to the U.S. Supreme Court, which remanded the case to the Second Circuit for more analysis. This time around, the Second Circuit was assisted by numerous amicus briefs from a variety of interest groups, and I bet the Court read them all because this is a new area of constitutional law that requires extensive analysis. Here is what the Second Circuit (Jacobs, Lynch and Lee) did:

1. New York's requirement that the potential gun owner pass a "good moral character" test is constitutional because the state law makes it clear that character is a proxy for dangerousness to yourself or others. The U.S. has long had licensing rules like this in order to ensure that dangerous people do not own any firearms. Our society has also allowed for discretionary moral judgments by local officials in deciding whether to issue a gun permit. There may be some unconstitutional applications of the moral character clause, but since this lawsuit poses a facial challenge to the statute, and there are conceivable ways the statute serves a constitutional purpose, this provision cannot be struck down in this lawsuit. Other lawsuits may highlight flaws in the licensing scheme, but not this one.

2. New York's "catch-all" provision is also constitutional. Under that rule, the decisionmaker may consider other, unspecified, information in determining whether to issue a gun permit provided that information is relevant to the decision. While some information requests may be illegal under the Second Amendment, others would surely be relevant, so the facial challenge to this provision fails. 

3. New York also allows the decisionmaker to consider the gun applicant's co-habitants and minors in determining whether to issue a gun permit. This provision allows the decider to learn more about the applicant's moral character, like a character reference. All of this is consistent with the historical tradition of firearm regulation.

4. Plaintiffs win on one challenge, however: the social media requirement, which allows the decisionmaker to review the applicant's social media accounts for the past three years to learn more about their character and conduct. You do not have to provide passwords, just a list of social media accounts so the regulators can see what you've said online. The problem is you have to provide a list of pseudonymous social media handles; that would violate the First Amendment right to speak without revealing your true identity.

Man may sue upstate school district for sex discrimination arising from deficient sexual harassment investigation

The Court of Appeals has reinstated a lawsuit in which an agricultural educator was banished from providing seminars in certain public schools after a school district credited an allegation that he had sexually harassed a student during an agricultural presentation. This case provides some guidance on the principle that a public school may violate Title IX when it mishandles allegations like this.

The case is Schiebel v. Schoharie Central School District, issued on November 1. The plaintiff denies sexually harassing anyone. When plaintiff met with school administrators about the allegation, the meeting lasted less than a half-hour, during which time the Title IX coordinator was hostile and accusatory toward plaintiff, and the district determined that, since he admitted reaching around a student for cups and supplies during the presentation, plaintiff was guilty of touching a female student even if his actions were not intentional. The superintendent of schools sustained this adverse finding against plaintiff on the basis that plaintiff did not deny that he may have reached around the student during the presentation and that plaintiff had ample time prior to the meeting to consider the accuracy of the allegations against him.

The Court of Appeals (Walker, Nardini and Menashi) reverses the trial court's determination under Rule 12 that this is not a gender discrimination case. These are complex cases. If you are the victim of sexual harassment in the public schools, you can sue for sex discrimination if the school is deliberately indifferent to the allegations, or if the investigatory process is so irregular that the process was a sham. If you are accused of sexual harassment, such as in this case, the same principles apply. Here, plaintiff has a case based on the deliberate indifference and sham theories, as cases hold that a false accusation of male-female sexual harassment case predicate a Title IX claim. An objectively deficient investigation, or an inexplicable result, leading to discipline against the alleged harasser can also violate Title IX.

The process leading to plaintiffs discipline was so deficient, and the result was so dubious, as to permit the inference under Rule 12 that plaintiff was the victim of the school district's gender discrimination. He did not receive due process during the investigation, such as timely notice of the charges against him, an opportunity to review or to present evidence, or a neutral decisionmaker. The Court of Appeals finds that plaintiff did not admit to sexual harassment when he said he may have reached around a female student to access supplies, and the district "also invoked a tendentious definition of sexual harassment -- that a single, accidental, trivial contact qualifies as sexual harassment under the district's policy -- that suggests [the district] was not impartially applying district policy."

Child Victim Act plaintiffs may challenge sex abuse that took place outside New York

This case is brought under the Child Victims Act, which the State Legislature recently adopted to re-open the statute of limitations for minor children who suffered sexual abuse years ago. The plaintiff alleges that, after she moved to New York City as a 16 year-old child model, the modeling agency sent her to Paris to love with one of its executives, who raped her. This happened in 1986. Here is the issue: can plaintiff bring this case even if the sexual abuse took place in Paris? The answer is yes.

The case is Sutton v. Tapscott, issued on November 4, more than a year after the court heard oral argument. The delay in issuing this ruling arises from the uncertainty whether CVA plaintiffs can sue in cases like this: where the abuse took place outside the State of New York. The district court held that the plain language of the CVA prohibits such cases from being filed unless the abuse took place in-state, reasoning that the statute only prohibits conduct "which would constitute a sexual offense" as defined under New York law, and that New York criminal law defines an "offense' as conduct occurring withing the boundaries of the State of New York.

That is not how other courts have interpreted the CVA, however, including intermediate appellate courts in New York. The First Department has ruled in favor of the plaintiff-victims in these cases, as have the Second and Fourth Departments. Here is what the First Department said:

In Samuel W. v. United Synagogue of Conservative Judaism, the First Department explained that “New York’s criminal statutes’ territorial limitations are . . . not a basis for excluding claims under the CVA” and that section 214-g’s “plain language revived ‘every’ covered ‘civil claim or cause of action’ that would have been properly brought in New York in the first instance,” including claims based on the out-of-state sexual abuse of a plaintiff who “was a New York resident at the time the cause of action accrued.” 194 N.Y.S.3d 25, 26–27 (1st Dep’t 2023).

The Court of Appeals (Sullivan, Lee and Carney) defers to the appellate division rulings. Normally, when the Second Circuit has a difficult issue of state law, it considers whether the certify the issue to the New York Court of Appeals for a definitive ruling. That was not necessary here because three of the four appellate divisions in New York have already agreed on a definitive interpretation.

You cannot sue state agencies for disability discrimination in federal court

 At first glace, of course, this looks like a routine case. The plaintiff argues that he suffered employment discrimination while employed at the New York State Department of Motor Vehicles, and he sues under the Americans with Disabilities Act. He names the DMV and individual defendants in the case. But this case runs into a huge problem.

The case is Yerdon v. Poitras, issued on November 5. (The oral argument was only a few days ago). Plaintiff alleges his supervisor removed his job tasks and limited his responsibilities after he told her about his disability. He also got a negative performance review and an "ultimatum." After plaintiff complained about all this internally, he was fired. While the case was dismissed under Rule 12, prior to any discovery, the Court of Appeals (Kearse, Sullivan and Robinson) does not consider whether plaintiff states a claim. That's because the state asserts a soverign immunity defense which would wipe out the case entirely,

The Eleventh Amendment, as interpreted by the Supreme Court, says you cannot sue the state in federal court unless you can shoehorn the case into one of the exceptions to that rule, which holds in sum and substance that the case can proceed in federal court if the case is consistent with Fourteenth Amendment principles. Disability discrimination cases, for the most part, do not involve that exception.

The Second Circuit has never held whether employment discrimination cases under Title I of the ADA may proceed in federal court when the plaintiff is suing the state.But other circuits have addressed this issue, finding that sovereign immunity prohibits such lawsuits because, as the Supreme Court has held, there is no evidence that, under the Fourteenth Amendment, Congress has identified a pattern of irrational state discrimination in employment against the disabled. That means Congress has no authority to abrogate this immunity for plaintiffs who want to the sue the state for these civil rights violations.

The Court further holds that individual defendants cannot be sued for disability discrimination under Title I of the ADA. Under the Second Circuit's statutory construction, only employers may be sued for compensatory and punitive damages. Six other circuits have reached the same conclusion.

Without any viable defendants to sue, plaintiff's case is dismissed. For those who want to proceed with their cases alleging disability discrimination against state agencies, the only recourse is to sue in state court. As this case tells us, federal courts cannot entertain such cases.