Due process for the reviled, Part II

Even the reviled have due process rights. The Court of Appeals holds that a notorious New York inmate may prevail on his due process claim after the New York corrections system kept him in solitary confinement following an arguably thoughtless series of reviews over whether to keep him locked up this way.

The case is Walker v. Bellnier, issued on July 25. The record shows this inmate will spend the rest of his life in prison, as the crimes that landed him in jail were brutal, and he continued to assault people inside jail. He is considered one of the most dangerous inmates in New York. So he was placed in solitary confinement for a 14-year period, ending in 2014. We call that process Disciplinary Segregation. Under the rules, the prison system may keep him locked up as such based on future predictive behavior. Under that process, he remains in solitary through 2022, when he was transferred to a different facility.

The problem, as the majority sees it, is that case law requires the prison to conduct a meaningful review of the plaintiff's eligibility for continued solitary confinement. The Court of Appeals (Carney and Robinson, with Menashi in dissent) cites studies showing how this lockup can adversely affect the mental health of inmates and cause severe psychiatric symptoms. Even conservative Supreme Court justices have said this. Other Supreme Court cases therefore require due process to ensure the inmate really belongs there, and officials must undertake periodic reviews to determine whether an inmate remains a security risk.

The majority says the record permits the finding that the prison system was just going through the motions in repeatedly finding that plaintiff belongs in solitary confinement even though it has been decades since his last violent attack and his prison record has improved over time. "Yet in every review since 2014, DOCCS officials used the same words in their assessments and offered no analysis of Walker's current possible inclination to violence, concluding -- to all appearances, inevitably -- that he posed a threat to the safety and security of the facility and must remain" in administrative segregation.

This is a complex case which took the Court of appeals more than 2.5 years to resolve. We have a lengthy dissent from Judge Menashi. The Second Circuit is not saying that plaintiff must win his case. It is saying he can win his case on this record. The case returns to the Northern District of New York for factfinding on this issue.

Due process for the reviled, Part I

In 1979, a little boy went missing in New York City. He became the face of the missing child, his image appearing in milk cartons, which was the pre-Internet way to publicize missing children. His name was Etan Patz, and his story became well-known as the authorities never found his body and there was never enough evidence to arrest anyone. But in 2017, a jury in Manhattan convicted Pedro Hernandez for kidnapping and murdering the six-year-old boy. That conviction was vacated by the Second Circuit.

The case is Hernandez v. McIntosh, decided on July 21. The problem is that during the police interrogation, Hernandez (who has a history of mental illness and is highly-suggestible, according to his appellate lawyer) confessed to the crimes after approximately seven hours of questioning with any prior Miranda warnings (i.e., you have the right to remain silent, a lawyer will be provided to you if you cannot afford one, etc). Once the police got the confession, they administered the Miranda warnings, and they had Hernandez repeat the confession on video and, later on, to the District Attorney's office. During jury deliberations, the jury asked the judge, "if we find that the confession ... before the Miranda rights was not voluntary, we must disregard the two later videotape confessions" as well as any subsequent confessions. The trial court told the jury the answer was "no." Solely on the basis of the "confessions," the jury then found Hernandez guilty, and the Appellate Division affirmed the conviction. Hence, this habeas petition in federal court.

The Second Circuit (Calabresi, Lohier and Perez) holds the trial judge's "no" was an unconstitutional jury instruction. In Missouri v. Seibert (2004), the Supreme Court held it was unconstitutional for the police to intentionally obtain a confession without Miranda warnings and then to ask the suspect to repeat the confession after they do administer the Miranda warning. This tactic renders the initial confession inadmissible unless the police undertook curative measures to ensure that a reasonable suspect understood the import and effect of the Miranda warnings and waiver. Under Seibert, the Second Circuit holds that the trial court's instruction to the jury ("no") was "manifestly inaccurate."

The complication in habeas cases is that, under the law that Congress passed in the mid-1990s, when it was fashionable to be "tough on crime" and to promote "state's rights," the habeas law was amended to say that even unconstitutional state court criminal trials are OK unless the state court violated clearly-established Supreme Court authority. This means that some convictions may be illegal, but not sufficiently illegal, to justify a new trial. The idea was to respect state court constitutional interpretations; this was a huge change from prior habeas cases, where any unconstitutional state court trial was grounds for a new trial. In this case, since the bad jury instruction could have made a difference in the verdict, the Hernandez verdict was plainly unconstitutional under the amended habeas law, and Hernandez gets a new trial.

 

 

No false arrest claim after bus driver locked passenger inside luggage compartment

The facts in this case are pretty horrifying: a Peter Pan bus passenger was locked inside the luggage compartment while the bus was heading from Hartford to Boston. Let that percolate for a minute. The luggage compartment is completely dark and the bus is rolling along on the highway as you bounce around with the luggage. The bus driver was arrested fro reckless endangerment and breach of the peace, but the charges were later dropped. The driver sued the police for false arrest. The claim fails on summary judgment.

The case is Alberty v. Hunter, issued on July 21. This case got quite a bit of press coverage, for the obvious reason that being locked away under the bus is a horror show.

The plaintiff bus driver was arrested because the passenger (who is unnamed in the Second Circuit ruling) told the police after she finally exited the luggage compartment that, after she climbed into the compartment to retrieve something, the plaintiff said, "Ha! Enjoy the ride!" and shut the compartment with the passenger inside. While locked in the compartment on the road, Plaintiff called the police from her cell phone. When the police stopped the bus on the highway, the passenger identified the plaintiff as the culprit and said, "you saw me, you laughed and shut the door!" That would suggest the plaintiff did this on purpose. Plaintiff was also arrested because Peter Pan bus policy says the drivers cannot allow passengers into the compartments, and the driver is responsible for securing the compartments before driving away.

The charges were dropped after the police determined that the video footage made the whole thing look like an accident, and that the plaintiff may have thought the passenger had gotten on the bus after entering the luggage compartment to retrieve whatever she was looking for. 

Here is the problem with false arrest cases, however: even if the charges are dropped, that does not mean the police lacked probable cause to arrest. The Court of Appeals (Livingston, Jacobs and Menashi) finds the police did have probable cause to arrest the bus driver based on what the passenger said she was released from the luggage compartment. While plaintiff argued that the police should have viewed the video footage sooner and realized the whole thing was an accident, the law does not require the police to conduct a thorough investigation before making an arrest.  

The noteworthy portion of this ruling is this: plaintiff cites a case from the Tenth Circuit that says that “when a videotape of the conduct at issue is both known and readily accessible to an officer investigating an alleged crime, the officer must view the videotape so as to avoid improperly delegating the officer’s duty to determine probable cause.”  Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1257 n.8 (10th Cir. 1998). That language would help plaintiff. But the Tenth Circuit later characterized this language as dicta and therefore nonbinding. And in the Peter Pan case, the video footage was not immediately available to the police. The Second Circuit says, "we have never adopted a rule that officers must watch a video known to them before arresting a suspect. We do not do so here either."

Second Circuit declines en banc review on 11-juror conviction

The Second Circuit has decided not to hear a case en banc that would clarify when a criminal defendant is entitled to a new trial after an 11-member jury finds him guilty, rather than the 12-member jury as required under federal statute.

The case is United States v. Johnson, issued on July 14. A federal statute gives you a 12 member jury. But, to put it mildly, the Supreme Court has never squarely said that smaller jury is a constitutional requirement. The defendant argues that the 11-member jury was a structural trial error that guarantees him a new trial. But the Second Circuit judges are not in agreement about this. Most of them determined that if there is any outstanding question on this issue, it should be decided by the Supreme Court.

The Supreme Court said in Williams v. Florida, 399 U.S. 78 (1970), that the Sixth Amendment right to a trial by jury does not mandate a 12-person jury. Post-Williams, the Second Circuit held in U.S. v. Stratton, 779 F.3d 820 (2d Cir. 1985), that the denial of a 12-person jury does not "impair the substantial rights of a criminal defendant." The judges who agreed not to re-hear this case say there may be good reason to revisit Williams and Stratton, but it is not for the Second Circuit to do so; that task lies with the Supreme Court. There is much discussion in the several opinions on this en banc "decision" about what the Supreme Court actually intended in Williams and whether certain language in that ruling is dicta, or non-holding language that is secondary to the opinion and therefore not binding on the lower courts. For now, Judge Lohier writes on behalf of the other judges who agreed not to rehear this case, "It appears that the denial of the right to a twelve-person jury does not qualify as a structural error that defies analysis by harmless error standards."

The various decisions here discuss the genesis of the 12-member jury, which dates to the English justice system predating the Revolutionary War. And you just know one of the judges makes reference to the old movie, 12 Angry Men, where a single juror held up the deliberations and convinced the other 11 jurors that he was right and the defendant was not guilty. No one made reference to the time that Edith Bunker did the same thing. 

The Second Circuit rarely hears cases en banc, maybe once every two or three years. The thinking is that a three-judge panel is good enough for anybody. Having participated in an en banc case, I can tell you that being in the courtroom with all the Second Circuit judges sitting at the bench is like watching the Northern Lights or a solar eclipse, or the Mets winning the World Series: a once-in-a-lifetime spectacle. What it means for the defendant here is that his criminal conviction stands. I am sure his lawyer will try to convince the Supreme Court to take up the case.

New York may regulate the reckless marketing of firearms, despite contrary federal statute

In 2021, New York enacted a law that makes the gun industry liable if industry members knowingly or recklessly endanger public health or safety through the sale or marketing of firearms. We call this a gun-related public nuisance law. A gun rights group sued in federal court to strike down this statute on the basis that it conflicts with federal law and violates the dormant Commerce Clause. The Court of Appeals strikes down the case.

The case is National Shooting Sports Foundation, Inc. v. James, issued on July 10. This is an important case, as the state law at issue was enacted in 2021 with great fanfare, and a ton of amicus briefs were filed in this appeal. Gun litigation is the name of the game these days, with a revitalized Second Amendment and gun culture in America, and a gun lobby, that loves its firearms. I am sure the losing side will bring this case to the Supreme Court.

The potential state-federal conflict is that the federal law, the Protection of Lawful Commerce in Arms Act, also regulates the gun industry, and it favors that industry due to the gun lobby's influence over Congress. Under federal law, however, you can sue the gun industry for knowingly violating a state or federal law applicable to the sale and marketing of firearms, and where the violation caused the alleged harm, i.e., a shooting. 

When New York passed the law in 2021, it was intended to be consistent with federal law, the Court of Appeals (Jacobs, Lohier and Lee) says. The gun industry argues that the federal statute was intended to prevent attenuated theories of liability for gun manufacturers and distributors. They argue the state law conflicts with that goal. As this is a facial challenge to the constitutionality of the state law, to win this case, the industry has to show that the state law cannot be legal under any set of facts. This is a difficult burden to satisfy.

The Court of Appeals finds the federal law does not preempt the state law because the federal law does not rule out lawsuits where the manufacturer or seller of firearms violates state or federal law in the sale or marketing of a product, causing injury. This is a statutory construction case, and the Court of Appeals has to carefully review the language in the state and federal laws to see how, if at all, the state law falls within the federal law exception. The Court of Appeals says the state law falls within the federal exception. For now, the state law remains on the books.

We also have a dormant Commerce Clause challenge. This constitutional theory is among the least interesting of all constitutional principles. It says the state cannot unduly burden interstate commerce by impeding private trade in the national marketplace. The Second Circuit finds no such violation, in part because New York advises the court that the statute no longer regulates interstate commerce. This portion of the challenge is therefore moot. The state so advised the Second Circuit in July 2024, eight or nine months after the case was argued. Nor, the Court of Appeals holds, is the statute void for vagueness.

Interesting concurrence from Judge Jacobs, who argues that the state law is "nothing short of an attempt to end-run" federal law which, in turns, aims to prevent industry-destroying lawsuits "by a mob of public and private actors." Statutes like this would "jimmy a window" when Congress tried to close the door on such suits. But, Judge Jacobs says, at this stage of the lawsuit, it not clear that federal law preempts the state law at issue here. He does suggest that, apart from a facial challenge, an as-applied challenge may be in order in the future. 

Double procedural whammy gives inmate a second chance to prove his case

Today's plaintiff alleges that correction officers at Rikers Island incited an attack on him by another inmate, failed to protect him from that attack, and/or retaliated against him after he filed a grievance and lawsuit relating to that attack. The case was dismissed on the City's motion for summary judgment, and the inmate appeals pro se, without a lawyer. 

The case is Fredricks v. Shaheen, a summary order issued on July 16. The Court of Appeals does not actually find that plaintiff has a case, much less that he can actually win the case. He wins on a procedural ground that is unique to pro se litigants. Two procedural grounds, actually.

When the government or a corporate entity or some other defendant represented by counsel moves for summary judgment, they have to provide the pro se plaintiff with a notice that lays out what the plaintiff must do to save his case, emphasizing that the plaintiff needs to produce admissible evidence in support of his case (like affidavits and useful documents) and follow other procedural requirements to ensure the trial judge can fairly resolve the motion. That did not happen here. The reason for this set of rules is that most pro se plaintiffs have no idea what to do with the summary judgment motion, and even a good jailhouse lawyer might not be familiar with the Federal Rules of Civil Procedure or the local rules guiding practice in the Southern or Eastern Districts of New York.

Plaintiff responded to the motion as best he could, but his papers were still lacking because they were incomplete. The trial judge granted summary judgment against him anyway even though the City's lawyers did not provide him with the right procedural notice that I outlined above.  

Another wrinkle on this case. The motion was first resolved by a U.S. Magistrate Judge. Once the magistrate issues the summary judgment ruling, called a Report and Recommendation, the district court, who supervises the magistrate judge, decides whether the magistrate judge got it right. In order to preserve your rights, the party that loses before the magistrate judge has to object to the magistrate's ruling in a timely matter. In this case, it looks like there was a screw-up with mailing out the magistrate's ruling to the inmate, who by now had been transferred to state prison in Auburn, New York. The court thought he was still at state prison in Elmira, New York. So he never got the magistrate's court ruling in time to file an objection. 

There are no do-overs in baseball, but the two procedural errors in this case, neither of them the inmate-plaintiff's fault, get him a do-over on the summary judgment. I am sure these errors and omissions have given the plaintiff great confidence in our court system. We still don't know if the plaintiff has a case, however. The Court of Appeals (Raggi, Menashi and Merriam) says, "It may well be that on remand, Fredricks is unable to establish a genuine dispute of material fact sufficient to permit this matter to proceed to trial. But he is entitled to try."

Jury to decide whether officer had the right to lift a woman by her bra strap during demonstration and throw her to the ground

The Court of Appeals has held that a woman who asserts a police officer, for no good reason, lifted her up by her bra strap and dropped her on the ground during a protest in August 2020 may take her claim to trial, as it is not clear that the officer did not violate clearly-established law in this use of force against her.

The case is Eaton v. Estabrook, issued on July 9. The protest took place in Connecticut. The officer did this without prior warning. At first glance, it looks like the plaintiff has a great case. But most excessive force claims have a loophole for the defendant officer: if his actions did not violate clearly-established case law, then he cannot be sued and the case against him is over. To invoke this defense, known as qualified immunity, the officer will argue that he had no choice but to do this. But the record allows the jury to find otherwise. 

Why was plaintiff lifted by her bra strap? Because during the protest, the officer was called to the scene on a Code 30, which means "officers need assistance." The officer said he was responding to an emergency because other officers got into a scuffle with other loud and chaotic protesters. This meant he had to get through the crowd and grabbed plaintiff to get her out of the way as best he could, by grabbing her by her bra strap, lifting her up, and dropping her onto the pavement, causing injuries. 

Qualified immunity prevents the officer from being sued if clearly-established law did not prohibit his actions. Of course, the law has been clear for years that an officer cannot subject someone to gratuitous force, even during a protest. But if the officer reasonably thought he had to grab someone and force her out of the way to protect officers who were under seige, then he can invoke this immunity. In this case, the jury has to decide what the officer perceived as he made his way through the crowd. The jury will tell the judge what really happened during the protest, and the judge will use those facts to determine if the officer acted reasonably and can invoke qualified immunity.

We need a trial for the following reasons: first, no one is sure what a Code 30 means. It might have referred to a Code 3, which is rare and "and is a very serious call." If the jury finds that a Code 30 does not carry the high level of urgency as a Code 3, then the officer cannot justify his actions based on a Code 30. The summary judgment record is not clear if the Code 30 refers to a Code 3. 

We also need a trial because the record shows conflicting evidence on how serious the crowd control problem was when the defendant officer showed up. It may or may not be the case that the officer reasonably thought he was witnessing an urgent problem that required him to essentially throw the plaintiff aside in order to protect a fellow officer; in such a scenario, every second counts. The Court of Appeals (Nardini, Lynch and Kahn) says a jury might find there were obvious, less drastic alternatives for defendant to reach the officers. Depending on how the jury sees the facts, the officer may have violated prior case law, which makes it clear that he could not, under the Constitution, 

have license to yank up a protester by her bra strap, drive her backward several feet, and throw her down on the ground, while responding to a call for officer assistance where she was not actively resisting police commands; where it is unclear whether he had any basis to think he needed to get past her to reach officers in danger; where he had not given her a warning nor asked her to step aside first; where there may have been other less drastic means available to accomplish moving past her, such as stepping around her or simply pushing past her in a less forceful manner; and where she sustained serious head and neck injuries.

Pro se appellant wins a new trial on search and seizure claim

This is one of the more interesting cases of the year. A pro se appellant convinces the Court of Appeals to order a new trial on his police misconduct case because the trial court did not properly charge the jury on the elements of his search and seizure case.

The case is Hester v. Kelly, a summary order issued on July 16. Hester's case went to trial in the Northern District of New York. He claimed that, in executing a search warrant into his building, they conducted an unlawful visual cavity search. At trial, he was represented by counsel, who did not object to the initial jury charge. Failure to object in that circumstance increases the burden on appeal: you have to show the bad charge was "plain error" as opposed to mere error.

But then something happened during jury deliberations: the jury got confused and asked the trial judge to clarify how to determine when a visual cavity search is conducted in a reasonable manner. Plaintiff's lawyer asked the court at this point to issue supplemental jury instructions that would have directed the jury to consider more than just whether the officers had reasonable suspicion to search Hester, based on the principle that even if the police had reasonable suspicion to conduct the search, the search itself still must be done in a reasonable manner. The judge doubled down on the original charge and told the jury to only consider whether it was reasonable for the officer to conduct a visual cavity search. The judge did not, as required under settled law, ask the jury to consider whether that search was conducted in a reasonable manner. Even under a plain error standard of review, the trial court's response to this jury question was wrong and compels a new trial.

The Supreme Court said in Bell v. Wolfish 441 U.S. 520 (1979), that these searches must be conducted in a reasonable manner. It is not enough that the officer had good reason to conduct the search in the first instance. Not only was the judge's response to the jury question plain error but, it affected the plaintiff's substantial rights, which asks whether the error affected the outcome of the trial. Handling the appeal pro se, plaintiff wins a new trial because, at the first trial, the parties sharply disputed how the cavity search was conducted, including how many officers were present for the search and whether it was conducted in the view of the other arrestees. If the jury credits plaintiff's testimony, it could find the visual cavity search was conducted in an unreasonable manner, the Court of Appeals (Lynch, Lee and Nathan) holds. This is because, under the rules, searches like this must be conducted in a manner that provides a degree of privacy for the suspect. Without the proper jury charge, plaintiff was less likely to win his trial. 

Pro-Trump Internet Twitter troll is acquitted of conspiracy to suppress the Hillary vote

The Court of Appeals rarely vacates a federal criminal conviction. Many of the judges worked for the U.S. Attorney's Office before ascending to the bench, and they know the feds are meticulous and rarely lose their cases. This prosecution is different, and the Court vacates the conviction, which said the defendant had conspired to prevent people from voting in the 2016 election by tweeting false advice to Hillary Clinton voters about voting by text message, a tactic intended to suppress voter turnout so the defendant's preferring candidate, Donald Trump, could win the election.

The case is United States v. Mackey, issued on July 9. You know that you can't vote by text message, right? Some people don't know that. The decision illustrates defendant's tactics, portraying this guy, a 24-year-old whose avatar draws from Charlie Sheen's character in the movie Major League, as a self-described Internet troll and "shitposter" who tweeted hundreds of times a day with memes, some of which disparaged women, minorities, or immigrants. The jury found him guilty after a difficult deliberation process, telling the judge at one point that it could not make up its mind.

Promoting bad and even false politics may not be illegal. But if you conspire with others to suppress the vote, you may violate federal law. The problem with this prosecution is that defendant was not actively affiliating with other organizations online for this purpose. He engaged in a few such posts, but nothing extensive. The evidence that he conspired with these other voter-suppression organizations is not enough to sustain the conviction. He had nothing to do with the conspiracy's formation, and any evidence of his involvement in the conspiracy is thinner than the slice of baloney at a cheap deli. The Court of Appeals (Livingston, Robinson and Raggi) is simply not comfortable with this verdict.

If you want to know more about the Internet trolling culture that promotes MAGA policies, this decision is an interesting read. If you want to decry the debased nature of American politics these days, where anyone online can say anything about anyone, whether true of false, and even affect an close presidential election, this is also an interesting read. I see that this case attracted a bunch of amicus briefs on both sides, a rarity in the Second Circuit. That tells us how important this case is and why the legal system is careful not to prosecute people on the basis of their political views alone.

Sham affidavit does not create an issue for the jury in COVID-19 vaccine exemption case

The Second Circuit in this case considers whether the Federal Reserve Bank was legally able to fire two women who claimed that religious objections barred them from taking the COVID-19 vaccine. One woman has a case. The other does not.

The case is Gardner-Alfred v. Federal Reserve Bank of New York, issued on July 2. Vaccine cases under the First Amendment and Title VII's religious discrimination clause take on different forms, often asking whether the employer is singling out religious objectors from nonreligious objectors. But in this case, we examine whether the plaintiffs had a sincere religious belief that the vaccine mandate had violated. In many such cases, the courts assume the religious belief is sincere. Courts can be lenient on this issue. Not this case.

Starting with plaintiff Diaz, the record is not clear whether she had a sincere religious belief. Her claim will go to the jury to sort this out. The record shows that while she did have religious objections to the vaccine, based on its use of aborted fetus cells, she also had secular objections, drawn from having attending a webinar by Gary Null (a secular figure) that raised non-religious concerns about the vaccine. Also, Diaz had utilized other medical products without ascertaining whether they used aborted fetal cells. And the Federal Reserve's expert said that certain COVID vaccines did not even use these fetal cells. With these evidentiary issues, summary judgment was improperly granted on whether Diaz held sincere religious objections to the vaccine. We have to empanel a jury to decide on Diaz's sincerity. The jury may also find that the vaccine requirements posed a substantial burden on Diaz's religious beliefs.

Gardner-Alfred's case is more complex. On the summary judgment motion, she testified about her religious beliefs and why they conflict with the vaccine. She also stated she belongs to the Temple of the Healing Spirit, which "prioritizes holistic approaches to health focused on diet and spiritual self-awareness, and opposes the invasive techniques of traditional Western medicine." Her affidavit states that her "sincere and conscientiously held religious beliefs and convictions prohibit her from receiving the Covid-19 vaccine and undergoing Covid-19 testing." Normally, affidavits like this will doom any summary judgment motion asserting that the plaintiff does not hold such religious convictions. We don't second-guess the plaintiff's credibility on summary judgment motions. This case is different.

The Second Circuit (Nardini, Lynch and Lee) notes that "Gardner-Alfred's deposition ... casts serious doubt on the veracity of her claimed longstanding affiliation with the Temple of the Healing Spirit," as her memory is fuzzy on her involvement with this organization and she cannot remember much about what took place during its virtual services, or recall the names of anyone else with whom she had attended a service. While the Church gave her a "vaccination exemption package" that includes an affidavit from the Reverend about plaintiff's association with the Church and her need for a vaccine exemption, she gave conflicting and vague testimony about how she received the package and how or to whom she made her payments for it. However, a Federal Reserve investigator got the same package for the asking, including a vaccine exemption affidavit, even though he is not a member of the Church, which gives out these packages like Halloween candy. You get the picture. This is the rare case where the Court of Appeals thinks the plaintiff's credibility is so lacking that no rational jury can find in her favor. This happens when the plaintiff's uncorroborated testimony is contradictory or incomplete, raising a "sham issue of fact."

Psychic scam found guilty of mail fraud

The Court of Appeals has sustained the criminal conviction against someone who made a fortune promoting fake psychic services. The opinion provides interesting detail into how these scams operate, noting the shocking amount of money this service generated.

The case is United States v. Runner, issued on July 9. The defendant's organization, Direct Marketing Services (DMS) sent letters to people promising they might receive a financial windfall. You would have to complete a questionnaire to qualify. By this point, DMC would start charging you money. The Court of Appeals (Calabresi, Chin and Merriam) writes:

customers who answered got dozens of different mailings offering a fantastical array of supernatural goods and psychic services.  These ranged from mystical ceremonies, to ancient crystals, and to charms that guaranteed good luck. Each item cost around $45. These offerings, the mailings assured, would alleviate the customer’s suffering—whether it was financial hardship, romance troubles, or familial strife. But these were all lies. There was no psychic who had read the customers’ letters (or cashed their checks). It was Patrice Runner and his business, Direct Marketing Concepts (“DMC”)—the mass-mailing enterprise he had founded in Montreal, Canada—that did all that. Duval had sent nothing, though she was, in fact, a real person who lived in France and had a reputation as a psychic. DMC did have a licensing agreement with Duval that permitted DMC to use her name and likeness, but she was not actually involved in any of the mailings.  So, for about two decades, DMC mailed around one-hundred different promotions to hundreds of thousands of people throughout the United States and Canada.

Over the course of 20 years, DMC earned more than $150 million. That, ladies and gentlemen, is an awful lot of money. My guess is that the judges on this case, highly educated intellectuals, cannot believe a scheme like this earned this kind of money.

 For more details on how these scams work, read the opinion. The marketers are very good are convincing people. Eventually, the government got wind of this. They charged defendant with wire fraud. The jury convicted defendant and the Second Circuit affirms, holding that defendant used these letters to induce customers into transactions that would cost them money through fraudulent tactics. A recent Supreme Court decision, Kousisis v. United States, 145 S. Ct. 1382 (2025), informs this analysis.

 

Pro se discrimination plaintiff wins trial against management law firm

This employment discrimination case went to trial in the Southern District of New York. No surprise there. The jury ruled in the plaintiff's favor on the retaliation case, awarding him $50,000 in compensatory damages. Again, no surprise. What makes this case remarkable is that the plaintiff represented himself pro se against an experienced law firm. He persuaded the jury that his former employer had retaliated against him in violation of Title VII. Still, he appealed from the verdict that denied him disparate treatment claim. The Court of Appeals affirms that portion of the discrimination case.

The case is Sanderson v. Leg Apparel, LLC, a summary order issued on July 8. So the retaliation verdict stands, but the discrimination verdict -- in management's favor -- also stands. Plaintiff represented himself on appeal, as well. His arguments on appeal focused on evidentiary issues. Lawyers know that trial courts have broad discretion in ruling on evidentiary matters at trial. The thinking is that the trial judges know the case better than the appellate judges, who only know the matter from a cold record. The trial judge has lived with the case for a few years. We don't see too many verdicts overturned based on evidentiary rulings.

Before we get to this, the summary judgment ruling in the case indicates plaintiff claimed his former employer made derogatory comments about his perceived sexual orientation and his coworkers made negative comments about Black people. Plaintiff alleges he was given a heavy workload because of his race. He suffered retaliation after he complained about a supervisor's discriminatory comments. These issues proceeded to trial. As I noted, the jury ruled in plaintiff's favor on the retaliation claim, and post-trial, the judge awarded plaintiff economic damages in the amount of $24,327.77. Notably, the trial court tolled plaintiff's back pay entitlement after a period of time because plaintiff found work at a different employer but was terminated from that position for cause. That termination, the trial judge finds, means that plaintiff did not properly mitigate his back pay damages. 

One issue is that the trial court excluded certain medical evidence that plaintiff thought would help his case. It was not clear to the Court of Appeals why this evidentiary ruling made a difference at trial, and the Court notes that it will not "manufacture" an argument for plaintiff on this issue. That evidentiary ruling is affirmed. The other issue was the trial court's restriction on plaintiff's cross-examinations at trial. You can imagine what a pro se cross-examination must look like when his adverse witnesses are on the stand. The Second Circuit notes that the cross was messy, requiring the trial judge to frequently interrupt to keep things on track, as some of the examinations "were often interspersed with lengthy soliloquies or took the form of plaintiff's testimony and arguments. The trial court was just trying to keep order, the Court of Appeals says, another matter wholly within the trial court's discretion.

Can you videotape inside a police facility?

The plaintiff in this case sued the City of New York, challenging its policy against video-recording in police facilities, including stationhouse lobbies. He posts his interactions with the police on YouTube, but these videos have gotten him arrested. He claims these arrests violate the First Amendment. This case has reached the Second Circuit, which has determined the State Court of Appeals has to resolve whether New York State and City statutes allow people to make these video recordings. The State Court of Appeals will have to issue a definitive ruling.

The case is Reyes v. City of New York, issued on June 18. The trial court said plaintiff was likely to win this case, entering an injunction in his favor. That ruling is now on hold while New York's highest court sorts out this issue. 

While an NYPD policy says people can film police activity, that right does not extend to the interior of police facilities. But state and city laws, which also allow non-arrestees to record police activity, do not speak to whether you can record video inside a police facility. But the city stood firm on its policy that video recording is prohibited in these facilities. Plaintiff tested the NYPD policy because he had heard the police were arresting people for videotaping in police facility lobbies. He got arrested for doing this, but the charge was dismissed. Still, an arrest is enough for a First Amendment lawsuit.

Since state and city law do not address the issue raised in the NYPD policy. However, since the Second Circuit (Raggi, Kearse and Kahn) cannot predict how the State Court of Appeals would resolve this issue, the Second Circuit sends this case to the State Court of Appeals to take up this issue in the first instance. We call that "certification." The Second Circuit says, "If those laws are properly construed to codify a right to record law enforcement activity  wherever it occurs and whomever it involves . . . that would presumably supersede any common law property or privacy rights that the City or persons might claim to limit recording at odds with these enacted laws." But if the state and city laws at issue in this case are construed more narrowly, affording a right to record law enforcement only on public streets or within publicly accessible premises, or subject to time, place and manner limits under the First Amendment, then the NYPD's policy may be enforced. 

Since this case involves an important area of state law, and the Second Circuit does not like to intrude on state prerogatives without some guidance from the New York Court of Appeals, which is presumably more familiar with state laws and legal principles, the latter court will have to take on this issue. Once it does so, the case returns the Second Circuit to finally resolve the appeal. This will take more than a year, as the parties will have file new briefs in the state Court of Appeals and then have oral argument on the issue, so plaintiff will have to wait quite a while for final resolution.

Doctor loses equal pay claim at trial

This case was a huge win for the plaintiff on her discrimination claim, as the Court of Appeals reinstated the verdict in her favor after the trial court determined there was not enough evidence to show that her employer, NYU Langone Health System, had discriminated against her on the basis of gender. But the Court of Appeals also finds that plaintiff did not have enough evidence to win her equal pay claim.

The case is Edelman v. NYU Langone Health System, issued on June 18. Equal pay claims under federal law are difficult to prove: you have to show that a male worker earned more money, and that both of you performed work requiring equal skill, effort and responsibility, and that the jobs were performed under similar working conditions. The state law equal pay claim, for purposes of this case, has the same elements. Plaintiff said that Dr. Modi, a male rheumatologist, earned more money than she did. The Court of Appeals finds the jury had a basis to reject this claim, even if it did find that the hospital had discriminated against her in other ways. It looks like the jury split the baby.

First, a procedural issue: at trial, plaintiff did not move for judgment as a matter of law on this claim. Since she seeks JMOL now, therefore, she can only get around this waiver by showing the verdict was a manifest injustice, a burdensome proof standard. She cannot meet that test because, even if Dr. Modi were subject to the same working conditions, the record allowed the jury to find that they did not perform equal work as defined by federal and state law.

Why did the Court of Appeals (Merriam, Robinson and Walker) rule against plaintiff on this issue? Because (1) Dr. Modi had two more years' experience than plaintiff, and he had also demonstrated leadership skills, having previously served as Chief Rheumatologist for a multi-specialty group of 500 physicians, where he supervised six rheumatologists, (2) he had also previously served as a medical director, where he supervised 15 doctors and 12 other medical professionals; plaintiff did not have this experience, (3) Dr. Modi and plaintiff had different production targets, and Dr. Modi saw more patients per week than plaintiff did.

This evidentiary record shows that the verdict against plaintiff on her equal pay claim was not a manifest injustice. It sounds like plaintiff would have lost the appeal on this issue even without waiving any JMOL motion during trial, as the evidence, as least as described by the Court of Appeals seems like plaintiff and Dr. Modi had different professional backgrounds and work experiences at NYU Langone.

Qualified immunity denied where police tried to frame someone for attempted murder

The Court of Appeals holds that a plaintiff alleging that police officers in Nassau County had futzed around with the rules and procedures to frame him for attempted murder, resulting in plaintiff spending nearly a decade in prison until he was exonerated when new evidence pointed to a different suspect. While the officers claimed entitlement to qualified immunity, the Court holds that the jury may find the officers did not act in good faith and that clearly established case law had already held that misconduct like this can violate the Constitution.

The case is Galloway v. County of Nassau, issued on June 26. The Second Circuit deals with plaintiff's claim that the officers denied him a fair trial. Fair trial claims may be brought in this jurisdiction if the officers make an arrest on the basis of false or fraudulent information. Plaintiff asserts that the officers (1) coerced witnesses to falsely implicate plaintiff's role in the crime, and (2) prepared a suggestive photo lineup that made it more likely the crime victims and witnesses would implicate the plaintiff. One way the police played around with the photo array, the Court of Appeals says, is by sitting plaintiff on two phone books to make him look taller, since the crime victim (a taxi driver who was shot in the face) identified a man who was much taller than plaintiff. Plaintiff also asserted Brady violations, where the police fail to turn over evidence that might exonerate him.

Qualified immunity attaches when prior case law is not sufficiently on point and the police were therefore not on notice that their misconduct would violate the Constitution. So, even if the police did wrong, if prior cases did not clearly hold as such, they are immune from suit. Many good cases disappear due to this immunity, but this case survives because the Court of Appeals (Jacobs, Chin and Menashi) holds that the right to due process protects us from suggestive police identification procedures that create a substantial risk of mis-identification.One case was Jenkins v. City of New York, 478 F.3d 76 (2d Cir. 2007). Another case holding that Brady violations are actionable under Section 1983 is Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992).

The way to repel a motion for qualified immunity is to find a good case in your jurisdiction that will convince the court that your case is sufficiently similar to a prior case that the police were on constructive notice that they were violation clearly established law. The puzzle is how factually similar the prior case was to your case. There is no hard-and-fast formula for this. It often depends on the identify of the judge whether the case will fail under qualified immunity or proceed to trial. This case will proceed to trial, as the Second Circuit finds that, by 2008, when all of this happened, the officers' misconduct was sufficiently illegal to get around the immunity claim. Prior cases were close enough to this one that plaintiff was able to avoid qualified immunity.

Judge Menashi, in partial dissent, says two of the officers should get qualified immunity because existing precedent in 2008 had not "placed . . . beyond debate the statutory or constitutional question of whether police may use phone books, hats, and sheets to obscure a suspect's short height and braided hair from a witness who they know believes the perpetrator is tall and short-haired." The majority disagrees with the dissent on this point, stating that "it is (and was) clearly established that identification methods bearing a likelihood of mis-identification of the accused violates due process, no matter their form -- just as procedures without such a likelihood do not." The majority adds, "it is immaterial whether appearance is disguised by phone books, or by cigar boxes, or by pillows, or by hats, sheets, eyelashes, mustaches or pimples. With enough artifice and disguise, almost anybody may end up fingered."

The majority's rebuttal to the dissent conveys a tone of impatience. Note that the majority opinion was written by Judge Jacobs, who for many years was among the most conservative judges on the Court of Appeals. The dissent was written by Judge Menashi, one of several conservative judges appointed by the Court by the current president. Conservative judges are more likely to grant qualified immunity, in my experiences, but not always. There are conservatives, and there are conservatives. You can see that play out in this opinion.

Disability discrimination plaintiff can win under City Human Rights Law but not federal law

The Court of Appeals has held that a disability discrimination plaintiff may proceed against her former employer under the New York City Human Rights Law, even if she cannot prevail under federal law. This case reminds us that, since the City HRL relaxes the plaintiff's liability burden, cases may win under that statute even if they fail under the more stringent Americans with Disabilities Act.

The case is Parker v. Israel Discount Bank, issued on June 27. I represented the plaintiff on appeal. Plaintiff was a computer security specialist who suffered a hand injury and requested a workplace accommodation. She was terminated from her position shortly thereafter. Defendant claimed she was fired for performance deficiencies. Plaintiff disputed those allegations and pointed to the questionable sequence of events leading up to her termination. The district court granted summary judgment for the bank on plaintiff's claims brought under federal, state and city law. Parker then appealed.

Here is where things got interesting. In its first ruling in this case, affirming summary judgment on the federal claim, the Court of Appeals held that plaintiff cannot prevail under the ADA. But the Court also vacated summary judgment on the claims brought under the State and City Human Rights Laws, ruling that the trial court abused its discretion in retaining jurisdiction over the state and city claims after it dismissed the federal claim. Recall that the supplemental jurisdiction statute, 28 U.S.C. 1367 directs federal courts to remand the dangling state and city claims if the federal claim is dismissed, though trial courts have some authority to retain those claims as well. In vacating summary judgment on the state and city claims, the Second Circuit did not rule that plaintiff may prevail under these statutes; it merely said these cases can only be reviewed by a state court now that the federal claim is gone. The most likely scenario would be that, upon remand to state court, the bank would file a motion to dismiss on the basis that the same analysis that led to dismissal of the federal claim would compel dismissal of the state and city claims. That is not a rock-solid argument, as the city law claim in particular operates under a different legal framework, but arguments like that are commonplace when the city law claim is kicked over to state court after a federal judge dismisses the federal claim.

Since it did not want State Supreme Court to review this claim on the merits on remand, the bank next moved for reargument, claiming there was no abuse of discretion in retaining (and then dismissing) the state and city law claims since plaintiff did not even make that argument on appeal and, in any event, the same evidence that compelled dismissal of the federal claim would justify dismissing the state and city claims. In opposition the the bank's motion, we argued that case law supports the position that the district court abused its discretion in retaining and then dismissing the state and city claims after it dismissed the ADA claim, as the state and city claims are better suited for State Supreme Court, since they carry different standards of proof for the plaintiff. We also argued that plaintiff can prevail in State Supreme Court under the state and city laws, as they have a more lenient burden of proof in discrimination cases.

The Court of Appeals (Calabresi, Kahn and Carney) resolved the motion for re-argument by doing something unexpected: it did not re-examine its initial finding that the trial court abused its discretion in exercising subject matter jurisdiction over the state and city claims. Instead, the Second Circuit resolved the state and city claims on the merits, reviving the city law claim completely and remanding it for trial. Defendant's motion for reargument backfired.

The Court first held the state law claim was properly dismissed, as it follows the same evidentiary burden as the federal claim, since plaintiff was fired before the new and improved State HRL was enacted in 2019. (I argued that some state law claims predating the 2019 amendments still advocated the "motivating factor" and not the "but for" causation test, but the Second Circuit probably thought those cases were outliers and that the "but for" test was the real test pre-2019). So the state law claim is gone for good.

But the Court of Appeals also held that the district court improperly dismissed the city law claim because, under the more pro-plaintiff standards guiding the City HRL, plaintiff has enough evidence to prevail at trial. The key principle guiding this holding is that "a plaintiff can defeat summary judgment merely by 'produc[ing] some evidence to suggest that at least one reason is false, misleading, or incomplete.'” The cite for that is Cadet-Legros v. N.Y.U. Hosp. Ctr., 21 N.Y.S.3d 221, 226 (1st Dept. 2015). Federal law does not recognize this principle. As the Second Circuit sees it, pre-2019 state law claims did not recognize that principle, either. The Court holds that plaintiff has presented a "triable issue as to whether IDB’s reasons for terminating her were 'incomplete' and whether discrimination was 'one of a number of mixed motives' for her termination." The city law claim is revived and will go to trial.

The Second Circuit, in other words, used the motion for reargument (filed by defendant) to rule in plaintiff's favor on the merits. While the Court did not specify why it said plaintiff can prevail at trial on the City HRL, I believe it was plaintiff's testimony that, when she requested a reasonable accommodation, her supervisor "became angry and threatened me that I was not going to survive" at the bank. That admission highlights an improper motive to fire the plaintiff because she requested a reasonable accommodation.

Supreme Court says excessive force victim cannot sue federal jailers under the Constitution

The Supreme Court has ruled that an inmate in federal custody cannot assert an excessive force claim against his jailers because federal law does not recognize a damages claim for cases like this.

The case is Goldey v. Fields, issued very quietly on June 30, a few days after the Court issued its headline decisions this term. In you sue state or local officials for excessive force, you can do so under Section 1983, the civil rights act that provides for an assortment of damages. But if you sue federal officers for a civil rights violation, there is no Section 1983. Rather, you bring a Bivens action, named after a Supreme Court case from 1971 that identified such claims in limited circumstances. 

Here's the problem: the Court has authorized such cases in a handful of cases, such as employment discrimination and certain police misconduct cases. Each time the Supreme Court gets another Bivens case, it shoots it down. In this case, the Court notes, after permitting only three such cases to proceed from 1971 through the late 1970s, "After 1980, we have declined more than 10 times to extend Bivens to cover other constitutional violations. Those many post-1980 Bivens 'cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts.'”

In this case, the Fourth Circuit said plaintiff could sue prison officials at a federal facility for excessive force. But that ruling collides with the Supreme Court's test for these cases:

To determine whether a Bivens claim may proceed, the Court has applied a two-step test. First, the Court asks whether the case presents “a new Bivens context”—that is, whether the case “is different in a meaningful way” from the cases in which this Court has recognized a Bivens remedy.  

Second, if so, we then ask whether there are “special fac- tors” 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.’” That analysis is anchored in “separation-of-powers principles.”

The Supreme Court has never recognized a claim like this under Bivens. While Congress has legislated in the area of prisoner litigation, it has never passed a law providing for money damages in excessive force claims. "In addition, extending Bivens to allow an Eighth Amendment claim for excessive force could have negative systemic consequences for prison officials and the 'inordinately difficult undertaking' of running a prison." And, there is another way, beyond a civil rights lawsuit, for aggrieved federal prisoners to recover a remedy, though the Court does not identify such a remedy here. The Court is probably referring to an internal grievance process which may in theory validate the inmate's complaint but will not allow him to recover any damages.

This analysis convinces the Court, even without briefing or oral argument, that the plaintiff cannot litigate this case in court. It is up to Congress to deal with excessive force in federal prisons. I seriously doubt the current Congress will pass any such law. While you may be outraged that the Court has disposed of this case in summary fashion, note that the three liberal Justices have signed onto it without dissent. That's how difficult it is these days to litigate a Bivens claim