Second Circuit protects fair-trial claims under Section 1983

The Court of Appeals has held that fabrication-of-evidence claims (also known as fair-trial claims) do not require the plaintiff to show the underlying arrest terminated in his favor, as that phrase is defined in malicious prosecution claims. In a victory for plaintiffs, this ruling confirms that fair trial claims are separate and apart from malicious prosecution claims.

The case is Smalls v. Collins, issued on August 20, 2021. The case was consolidated for oral argument and decision with Daniel v. Taylor. Along with Gregory Antollino, I argued this case on behalf of Daniel. This case represents as complex an analysis under 42 U.S.C. 1983 as you'll find, as the Court of Appeals had to take close look at a recent Supreme Court case and reconcile it with longstanding Second Circuit cases on fair-trial claims.

For years, the Second Circuit recognized that fair-trial claims, in which the plaintiff alleges the police fabricated evidence against a criminal defendant, are brought under the Due Process Clause, which protects the integrity of the trial process, even if there was probable cause to arrest the defendant. Malicious prosecution claims, on the other hand, are brought under the Fourth Amendment, which prohibits unreasonable searches and seizures, which means that the plaintiff cannot sue unless the criminal prosecution terminates in a manner indicating the defendant was innocent. That means ACD's and dismissals "in the interest of justice" make it impossible to bring a malicious prosecution claim. Under this calculation, plaintiffs are better off with a fair-trial claim than a malicious prosecution claim.

This distinction between fair-trial and malicious prosecution claims was placed in jeopardy in 2019, when the Supreme Court issued McDonough v. Smith, 139 S.Ct. 2149 (2019), which borrowed from malicious prosecution doctrine in holding that the statute of limitations on fair-trial claims starts when the criminal prosecution terminates in the criminal defendant's favor. The City of New York, and some district court judges in New York, interpreted McDonough to mean that fair-trial claims cannot proceed unless the criminal charge terminates in the defendant's favor, as per malicious prosecution claims. That is why Smalls' and Daniel's federal civil rights cases were dismissed: neither plaintiff's criminal case (on weapons charges) ended with a resounding verdict of acquittal at their criminal trials. Smalls' case terminated after the Appellate Division vacated his conviction because it stemmed from an unlawful search, and the remaining charge was dropped against Smalls on remand in criminal court, as that charge was the fruit of an unlawful seizure as well. And Daniel took an ACD. Under the City's analysis, fair-trial claims would essentially be folded into malicious prosecution claims, and these claims as a whole would be far less common as many criminal defendants, even in the face of police misconduct, end in ACD's and dismissals in the interests of justice.

The Second Circuit (Sack, Menashi and Kaplan [D.J.]) rejects the City's interpretation, holding that fair-trial claims are viable if the criminal case against the plaintiff has terminated, under principles set forth in Heck v. Humphrey, 512 U.S. 477 (1994), which holds that Section 1983 claims cannot proceed if they would necessarily undermine a parallel criminal conviction, such that, in the most obvious case, someone convicted in criminal court cannot claim the underlying arrest lacked probable case. In the fair-trial context, Judge Sack holds that "McDonough's accrual rule does not import malicious prosecution's favorable-termination requirement onto section 1983 fair-trial claims. Where the plaintiff asserts a section 1983 fair-trial claim based on fabricated evidence, all that is required is that the underlying criminal proceeding be terminated in such a manner that the lawsuit does not impugn an ongoing prosecution or outstanding conviction." Since Smalls and Daniel both had their criminal cases terminated before they filed suit under Section 1983, their cases are revived. For Small, that means his favorable Section 1983 verdict is reinstated. For Daniel, it means the Rule 12 dismissal is vacated and his case proceed to discovery.
 

En banc court upholds police search, producing passionate dissenting opinions

In a rare en banc ruling, the Second Circuit has held that a police officer legally searched a car passenger because he had reasonable suspicion that he was carrying contraband. The en banc ruling produced passionate dissenting opinions from three Circuit judges, one of whom suggested the search was actually motivated by race.

The case is United States v. Weaver, issued on August 17. It started when the police in their unmarked vehicle drove by a pedestrian who peered into the car window for a few seconds, "longer than one would typically look at a vehicle," one officer testified. The officers then saw the pedestrian, Weaver, tug his pants up as he approached another vehicle and got inside the car. Moments later, that vehicle activated the turn-signal too close to the intersection, and the officers pulled the car over. At that point, the officers grew suspicious of Weaver, who was pushing down on his pelvic area and squirming in the seat left and right. The officer thought Weaver was trying to push something down. They ordered Weaver out of the vehicle and made him stand spread-eagle against it; when Weaver did so, he seemed to be pressing his pelvic area toward the car. The officers conducted the search, finding guns and drugs.

The trial court denied the suppression motion, but the three-judge Court of Appeals panel overturned the trial court and said the search violated the Fourth Amendment because the officers acted on a hunch and lacked reasonable suspicion. Hearing the case en banc, the Court of Appeals rules, 9-3, that the search was legal.

Writing for the majority, Judge Nardini rules that the search was justified and that the suspicious behavior outside the vehicle (after Weaver was ordered to exit the car following the vehicle stop) factors into the determination of whether the officer had reasonable suspicion. This holding is a flash-point for the majority and dissenting judges. While the officer ordered Weaver to stand spread-eagle against the car, that order did not have any Fourth Amendment significance because it did not constitute a physical trespass or invade his privacy. While Weaver argues that a search begins when an officer pursues a course of action that would cause a reasonable person to believe he was being subjected to a search, that is incorrect, the majority says, and the real focus is whether the police committed a physical trespass into a protected area, or whether they violated a reasonable expectation of privacy. That order was not a search.

The search was otherwise reasonable, the majority holds, because by the time the officer searched Weaver, he had three times witnessed him make suspicious movements concentrated around his waist and pelvis: the pants tug on the street, the hip-shifting in the car, and the pelvic movements outside the vehicle. This evasive and furtive behavior is enough to support a Terry-stop.

In dissent, Judge Calabresi writes that search and seizure law has slowly creeped away from legitimate police practices because most published decisions on this issue are close-calls in favor of the police, prompting courts to push the line a little further each time in the officers' favor with each case. In part also because of qualified immunity, and that fact that an unlawful search may not create a financially viable lawsuit to start with, this means that few published cases favor the innocent people who are searched without producing any contraband. So the cases in this area mostly favor the police. An interesting dissent that notes that judges cannot relate to criminal defendants and will naturally identify with the police, figuring that police misconduct happens to other people, but not judges or their family and friends. He is especially critical of Supreme Court doctrine that precludes any consideration of an officer's subjective intent to searching and seizing motorists and other civilians, thereby permitting pretextual stops. Judge Chin notes in dissent that race may have been a factor in the decision to search and seize Weaver, noting that statistics show that Blacks are far more likely to be searched, arrested, and incarcerated, than Whites.

For fans of constitutional "standing" only

The "standing" doctrine is not well known to non-lawyers, but you'll notice if comes up more and more frequently in high-profile cases as organizations and citizens try to overturn governmental policies, turning to the courts to address issues that they could not resolve through the political process. What we find in the standing cases is that not everyone can sue to overturn these policies. You have to satisfied strict standing policies as defined by the courts.

The case is Connecticut Parents Union v. Russell-Tucker, issued on August 11. The plaintiff organization (CTPU) sued the State of Connecticut over the state's standards regarding the racial composition of its interdistrict magnet schools. The organization claims the standards violate the Equal Protection Clause. Under the standards, "all interdistrict magnet schools in Connecticut [must] enroll at least 25% non-Black and non-Hispanic students." CTPU claims this requirement is a "hard racial quota." The organization claims that its efforts to repeal the standards has prevented it from devoting its time and energies to other matters, imposing "opportunity costs" on the organization.

When organizations challenge government policies in court, they always run into a standing argument. They have to show associational or representational standing to sue on behalf of its members. Or they can show standing if the organization is personally affected by the challenged policy. You don't see that very often. 

To show standing, the organization must show "an imminent injury in fact to itself as an organization (rather than its members) that is distinct and palpable" and "that its injury is fairly traceable to the challenged act." Plus it has to show "that a favorable decision would redress its injuries." The Court of Appeals has held that "an organization may suffer the requisite injury when it diverts its resources away from its other current activities" or suffers "some perceptible opportunity cost."

CTPU cannot show standing. The Court of Appeals (Cabranes, Lynch and Marrero [D.J.]) reasons:

Under CTPU’s argument, an organization could establish  standing by claiming to have  been  injured  by  any  law  or regulation touching any issue within the scope of its mission (which the organization itself can define) so long as it expends resources to oppose that law or regulation. For example, under CTPU’s theory of organizational standing, CTPU would be able to successfully plead an injury simply by pointing to any Connecticut law relating to education that it makes a significant effort to oppose. Accordingly, we reject such an expansive concept of organizational injury for standing purposes.

Where, as here, an organization is not directly regulated by a challenged law or regulation, it cannot establish “perceptible impairment”absent an involuntary material burden on its established core activities. In other words, the challenged law or regulation must impose a cost (e.g., in time, money, or danger) that adversely affects one of the activities the organization  regularly  conducted  (prior  to  the  challenged  act)  in pursuit of its organizational mission. For example, we have recognized that a cognizable injury may arise via a burden that is imposed on an organization when there is an increased demand for an organization’s services. But  we  think  that  expenditures  or  other  activities,  if incurred at the organization’s own initiative, cannot support a finding of injury—that is, when the expenditures are not reasonably necessary to continue an established core activity of the organization bringing suit, such expenditures, standing alone, are insufficient to establish an injury in fact for standing purposes. In other words, an organization’s decision to embark on categorically new activities in response to action by a putative defendant will not ordinarily suffice to show an injury for standing purposes, even if the organization’s own clients request the change.

Discrimination case based on comparator evidence fails

One way to prevail in an employment discrimination case is to argue that you were singled out because of your race, and that others were not similarly punished for the same workplace misconduct. That's the strategy that the plaintiff pursued in this case, but the Court of Appeals disagrees, and the case is over.

The case is Bright-Asante v. Saks & Company, a summary order issued on May 14. Plaintiff was suspended from his position at Saks following an internal investigation that determined he had facilitated fraudulent purchases made with stolen credit card information. Plaintiff was arrested over this and suspended without pay. The charges were dropped on speedy trial grounds. 

So what's the case? Plaintiff points to a white co-worker, Susan David, who "processed transactions for the same imposter customer after imposter's transaction with Bright-Asante aroused the suspicions leading to the charges against him." Plaintiff says that Sak's failure to forward the video footage of David's actions to law enforcement, and its failure to suspend David over this, was unlawful discrimination.

Whataboutism may constitute bad logic in political debates, but the discrimination laws recognize that theory of discrimination. If two employees engage in the same or similar misconduct, and only one is punished, that selective punishment could have been motivated by race. The cases on this issue require that the misconduct be comparable and that the employees were all subject to similar workplace standards. I have seen courts address this issue differently: some courts want nearly identical misconduct for the issue to reach the jury, but other courts are more flexible and allow the jury to decide the issue. Most courts, though, want a close comparison. This is such a case, the Court of Appeals (Raggi, Parker and Carney) holds. The reasoning: 

Even if David’s transaction with the imposter raised suspicion of a further fraudulent transaction, the evidence did not implicate David in the fraud so as to admit an inference of race discrimination in Saks’s treatment of its employees. The transactions conducted by Bright-Asante and David were different in material respects. David did not take the customer into the private, closed-off area where Bright-Asante had gone. Further, David, unlike Bright-Asante, did not allow the customer to access the Saks register to input her Social Security number and email address; did not use her cell phone during the transactions; and did not take an unusually long time to process her transactions. Lisa Benson, a Saks executive who reviewed the CCTV footage at the time, explained persuasively that because of these differences in the transactions she did not find David’s actions in dealing with the impostor customer suspicious and therefore did not forward David’s footage to law enforcement.

Circuit clarifies search and seizure test for parolees

This case allows the Court of Appeals to clarify the rules guiding searches and seizures of parolees who are still under supervision by the state. The Court ultimately says the parole officers were allowed to search a parolee's house, where they found guns and narcotics.

The case is United States v. Braggs, issued on July 13. Following the search, the government brought drug trafficking and firearms charges against Braggs. But the district court suppressed this evidence under the Fourth Amendment, finding that the parole officers lacked reasonable suspicion to search the house, as the "vague, anonymous tip" that the officers relied on was not enough to support the search. The Second Circuit reverses, and the charges against Braggs are reinstated.

The Court of Appeals (Wesley, Sack and Menashi) notes that this case involves two strands of Fourth Amendment jurisprudence that the courts appear to have "either muddled or overlooked as of late." One strand involves the exclusionary rule in federal prosecutions. In those cases, the government needs a reliable basis to search your home. Anonymous tips are not usually deemed reliable. The other strand involves parole searches "for the purpose of monitoring the parolees under their charge." The exclusionary rule is more strict than parole searches, the Court of Appeals reminds us. That's because the "special needs" doctrine governing parole searches says "a search of a parolee is permissible so long as it is reasonably related to the parole officer's duties." These duties include "the supervision, rehabilitation, and societal reintegration of the parolee, as well as assuring that the community is not harmed by the parolee's being at large."

The search in this case was legal because it satisfied the special needs doctrine. The search was reasonably related to the performance of the parole officers' duties. Once the officer got the anonymous tip about Bragg's possible gun possession, a clear violation of Bragg's parole conditions, 'he and his team were constitutionally permitted to search the house to determine whether Braggs was complying with the relevant condition." While the search might have violated the Fourth Amendment in a non-parole circumstance, then, it was legal in this context. The criminal charges against Braggs are therefore reinstated.

 

Immigrant criminal defendant loses Second Amendment appeal

Second Amendment arguments can find their way into any number of cases. This case involves a criminal prosecution against an undocumented immigrant who fired a gun during a barbeque in Brooklyn. The defendant argues that the Second Amendment prohibits the government from barring the possession of firearms by undocumented immigrants. The Court of Appeals sidesteps that argument and finds the statute that defendant was convicted under is constitutional.

The case is United States v. Perez, issued on July 29. The statute prohibits "an alien . . .  illegally or unlawfully in the United States" from "possessing . . . any firearm or ammunition." My guess is that if the Supreme Court ever takes up the issue of whether the Second Amendment allows the government to restrict these immigrants from owning a weapon, the Court will find it constitutional. But that's not the issue for today. Instead, the Second Circuit treats this as a traditional Second Amendment case.

In resolving cases under the Second Amendment, the court asks two questions: first, whether the law burdens conduct protected by the Second Amendment, and second, what is the appropriate level of judicial scrutiny in assessing the legality of the statute. 

 On the first issue, the Court of Appeals notes that the Supreme Court in the landmark Heller v. District of Columbia (2008) said that gun rights are extended to "law-abiding citizens for lawful purposes," as well as "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Some Courts of Appeals have interpreted this language to exclude undocumented immigrants from the Second Amendment's protections, including the Third, Fourth, Eighth, Ninth, and Eleventh Circuits. But the Second Circuit will not touch this issue for now, because there is an easier way to resolve this case.

The case is resolved with a holding that the criminal statute passes constitutional muster even if it protects people like defendant. The Court applies "intermediate" scrutiny in determining whether the statute is constitutional. That is more deferential to the government than "strict scrutiny," which usually results in the law being struck down. If the law is substantially related to a legitimate government interest, then it is constitutional. And that is the holding here. Perez's possession of the gun was not in self-defense nor in defense of the home, and he does not qualify as a "law-abiding, responsible citizen" because "his presence here is unlawful." The Second Circuit sees it this way:

The government supplies three principal rationales for the ends served by § 922(g)(5), each of which we find furthers public safety: (1) preventing individuals who live outside the law from possessing     guns, (2) assisting the government in regulating firearm trafficking by preventing those who are beyond the federal government’s control from distributing and purchasing guns, and (3) preventing those who have demonstrated disrespect for our laws from possessing firearms. Based   on   all   three   rationales,   we   conclude   that   §   922(g)(5)   is substantially related to the government’s interest in promoting public safety with respect to the use of firearms.

Judge Menashi concurs in the judgment, stating that Perez's case falls within the Second Amendment's core protections because he was in fact using a gun to protect others at the barbeque. But he goes on to say that Perez does not have any protections under the Second Amendment. "Rather than reach the conclusion that illegal aliens lack Second Amendment   rights   through   excessive   deference   to   Congress’s 'sensitive  public  policy judgments,' I would  join  those circuits that have held that illegal aliens are not among 'the people' to   whom   the   right   to   keep   and   bear   arms   under   the   Second Amendment belongs."

Racial harassment case will proceed to a jury

The evidence in this hostile work environment is quite ugly. While the district court dismissed the case on defendant's motion for summary judgment, the Court of Appeals reinstates the case for trial on the racial harassment. But the constructive discharge claim is dismissed for good.

The case is Byer v. Periodontal Health Specialists, a summary order issued on August 2. Plaintiff worked for a dentist. Prior to her resignation, plaintiff says, her boss made offensive comments and written statements for three years. While plaintiff's Title VII claim is time-barred, her state-law claim is on the table. To win a hostile work environment, you have to show the workplace was severe or pervasive, altering the work environment for the worse. These can be fact-specific inquiries, but sometimes you know a hostile work environment when you see one. That seems to be the case here. The Court of Appeals (Chin, Jacobs and Sack) summarizes the evidence as follows:

Byer set forth evidence that Dr. Lowenguth made numerous derogatory and offensive statements, directly and implicitly referring to Byer's race, many of which were made in the three years leading up to Byer's resignation. For example, Dr. Lowenguth pulled Byer by the necklace and called her "Kunta"; circulated to the office a cartoon depicting Byer as a wild animal; said Byer looked like a "Mammy on the plantation"; told Byer to "talk that talk" to patients of color; brought to the office necklaces that displayed the words "bitch" and "slave" on them; commented that the office should provide Byer with fried chicken for lunch; joked that Byer would have nothing to eat when a restaurant said it had run out of ribs; referred to Byer as a pit bull; and said Byer dressed like the fictional Black character Buckwheat.

This evidence is enough for a trial on whether the dentist created a hostile work environment. Management argues that plaintiff did not always find this behavior abusive, but such evidence is really for the jury to sort out, as "there is also some evidence to the contrary." These kinds of disputes relating to whether the plaintiff found the conduct offensive are for the jury.

But plaintiff does not have a constructive discharge claim. These claims are very difficult to win. The plaintiff has to show the work environment was so awful that she had no choice but to leave. Few Second Circuit cases recognize such claims, and the Court of Appeals does not recognize it here. Why? Because plaintiff said nice things about the workplace and she did leave her employment right away. Here is how the Court sees it:

we note that within a year prior to her resignation, Byer stated that her "bosses rock," she was part of an "awesome team," she would never work for another periodontist, and Dr. Lowenguth was "good people" and like "family."  Further, Byer decided to resign before October 1, 2015, and yet she stayed on the job until November 6, 2015, and offered to work an additional week if defendants wanted her to do so, militating against a finding that she felt compelled to resign due to defendants' behavior.  On this record, we agree that no rational juror could infer that a reasonable person in Byer's shoes would have felt compelled to resign.