One-dollar strip search verdict is rejected on qualified immunity grounds

This guy sued an Oswego sergeant, claiming the officer subjected him to a manual body cavity search. It took place in the context of felony drug charges. Plaintiff won the trial, but the jury only awarded him one dollar. That may be an empty victory for plaintiff, but the sergeant appeals it anyway, claiming no liability can attach at all because he is entitled to qualified immunity. The Court of Appeals agrees with the sergeant, and the verdict is gone.

The case is Sanchez v. Bonacchi, a summary order issued on October 25. If you read this blog on a regular basis, you know that public officials (including police officers) get qualified immunity from suit if the law was not clearly-established at the time of the incident. Officers are not expected to anticipate how appellate courts in the future will resolve complex constitutional issues, so if there is something funky about the case, the officer gets the benefit of the doubt.

The district court denied the sergeant qualified immunity because he "personally conducted a manual body cavity search of Plaintiff before obtaining a judicial warrant, and because Defendant essentially testified that he knew such conduct violated Plaintiff's rights." Interesting. The officer testified that he knew he was violating plaintiff's rights when he conducted the cavity search. What more could a plaintiff want? (And why would the jury only give plaintiff one dollar for this intrusive violation of his physical dignity? Only the jury can answer that question.)

The problem with the district court's analysis is that is focused on the officer's subjective intent in resolving the qualified immunity question. Qualified immunity is an objective test, not a subjective one. So it is not enough for the officer to "admit" he was violating the plaintiff's rights. The question is whether a reasonable officer would have done the same thing. If the answer is yes, then the officer is immune from suit, no matter what he testified to at trial.

The correct test is "whether a right to be free from a warrantless manual body cavity search in the absence of exigent circumstances and a particularized suspicion that evidence of a crime is secreted inside the body cavity was clearly established at the time of the search, in February 2013." In 2013, the Second Circuit held in Gonzalez v. City of Schenectady that, "although we have repeatedly held that the police may not conduct a suspicionless strip or body cavity search of a person arrested for a misdemeanor," neither the Court of Appeals nor the Supreme Court had extended that reasoning to felony drug arrests. This means that cases like plaintiff's (involving felony drug arrests) were not clear constitutional violations, at least by February 2013.

What it means for plaintiff is that verdict is gone, the one-dollar damages award is gone, his attorneys' fees are gone, and the sergeant ultimately wins the case.

Circuit gives pro se inmate a break

The case involves continuing violations and equitable tolling for an inmate who claims he got lousy medical care while he was incarcerated. The Court of Appeals revives the claim on the basis that plaintiff might be excused for his late filing because he was made to wait for a notary to stamp his lawsuit.

The case is Sides v. Paolano, a summary order issued on October 22. Sides says that in August/September 2012, he was denied adequate medical care. He filed the lawsuit on October 1, 2012, more than three years after the bad medical treatment. Problem: the statute of limitations is three years. The lawsuit fell outside that time-frame. Can plaintiff get around this? The district court said no. The Court of Appeals (Walker, Carney and Koeltl [D.J.]) says yes.

Equitable tolling is God's way of saying that some latenesses can be excused, but only for a compelling reason. Plaintiff says that he needed a notary stamp on his lawsuit before he could file it. He requested the notary at the prison on September 21, 2015, and he got the assistance on September 29, 2015. We call that bureaucratic inertia. It's not like inmates can just walk into a bank for a notary. You are at the mercy of prison staff. Notarizing signatures is not a priority.

State court lawsuits in New York have to be verified. That is not the case in federal court. Why did plaintiff need a notary in the first instance? Sides says he relied on a pro se handbook and a prisoner manual that said complaints have to be notarized. Only injunction applications in federal court need to be notarized, since you have to file an affidavit.

The Court of Appeals says the handbook advice may or may not have been correct. But we have an inmate plaintiff here, and the cases have long held that inmates get some solicitude in dealing with deadlines and other procedural requirements. Since Sides did file his lawsuit within days of the September 28, 2015 deadline, the late filing might be excused. The case is sent back to the district court to determine in the first instance whether plaintiff is entitled to equitable tolling.

Tight handcuffing claim does not survive qualified immunity defense

The Court of Appeals has granted qualified immunity to a police officer who allegedly overly-tightened handcuffs upon an arrestee who suffered permanent nerve damage after unsuccessfully signaling to the officer that the cuffs were too tight.

The case is Cugini v. City of New York, decided on October 25. Plaintiff was arrested on a domestic stalking and harassment charge. She claims the officer cuffed her "very tight," causing her to say "ouch" while her body shuddered. The officer responded, "Don't make me hurt you" and tightened the cuffs further, causing plaintiff to further react, "ow" or uttering a "cry." For the next 40 minutes, plaintiff kept her mouth shut, claiming she was "too scared" to complain any further about the handcuffs.

Here's the question: how does this scenario entitled the officer to summary judgment in this excessive force case? The answer is qualified immunity. Police officers are entitled to immunity if they did not violate clearly-established constitutional rights, as determined by Supreme Court and Second Circuit authority. A right is clearly-established if the facts giving rise to the claim make it clear to any reasonable police officer that the plaintiff's constitutional rights were violated. So a generalized right to be free from excessive force is not enough. You have to show that existing precedent makes it clear the plaintiff's rights were violated in light of the facts known to the police officer at the time of the incident.

The Court of Appeals (Sack, Hall and Droney) does two things here. First, it decides that plaintiff's right to be free from excessive force was in fact violated. Under settled Supreme Court authority (Graham v. Connor [1989]), "a government officer may not intrude upon a person's Fourth Amendment rights by employing a degree of force beyond which is warranted by the objective circumstances of an arrest." Relevant factors include whether the plaintiff was actively resisting arrest, whether she was trying to flee, and the severity of the crime at issue. Second, the Court finds the officer is immune from suit because the law was not sufficiently clear that he was violating her rights.

On the first issue, the Second Circuit states that "A reasonable on the scene should have known that the force used was excessive. A reasonable jury could find that the degree of force employed by Palazzola was, objectively considered, disproportionate and unwarranted under the circumstances," particularly since plaintiff communicated her distress to the police "through her pained utterances and bodily shudders" and the officer threatened her with further harm if she did not stop complaining." The officer then tightened the handcuffs. This ruling helps other excessive force plaintiffs who claim the police applied too-tight handcuffs, as this ruling is now "clearly-established" constitutional law, at least from October 25, 2019 forward.

But this ruling on excessive force does not help plaintiff, because no court had engaged in this precise analysis on the day she was arrested in June 2014. In other words, as to plaintiff's case, the law was not clearly-established in 2014. The Court of Appeals phrases the question this way: "whether, at the time of Cugini's arrest, clearly established law required an officer to respond to a complaint by a person under arrest where, as here, that person exhibited only non-verbal aural and physical manifestations of her discomfort." Well, if you frame the issue that way ...

Prior to this decision, no case had quite held that any plaintiff on these facts suffered a constitutional violation. Yes, plaintiff did make some non-verbal noises as a means to complain about the handcuffs. But, at the time of her arrest, "It remained an open question in this Circuit whether a plaintiff asserting an excessive force claim was required to show evidence that an officer was made reasonably aware of her pain by means of an explicit verbal complaint." Also, "there was no such consensus in federal circuits outside ours whether a verbal complaint was necessary, so we need not -- we cannot -- come to a conclusion as to the consequences of any such consensus had there been one."

Plaintiff wins the battle but loses the war. You may think the Second Circuit sliced the baloney too thin in holding that a reasonable police officer might think he was not violating plaintiff's rights in tightening the handcuffs. But the Supreme Court has been making it more difficult for plaintiffs to survive qualified immunity motions. But, while plaintiff loses the war, the next such plaintiff will get around this particular qualified immunity equation.

Qualified immunity for police officers in excessive force/false arrest claim

If you sue the police for excessive force or false arrest, you have to worry about qualified immunity. There are ways around it, but I see a pattern in the Second Circuit, in which the Court of Appeals dismisses a Section 1983 claim on qualified immunity grounds, even after the district court allowed the case to proceed to a jury. That's what happened in this case.

The case is Calixto v. City of New York, a summary order issued on October 4. Qualified immunity is a legal protection enjoyed only by government defendants who are sued for civil rights violations. If the law was not clearly-established at the time of the violation, the defendants are off the hook even if, with 20-20 hindsight, they violated the plaintiff's constitutional rights. The idea is that close cases are decided in the defendant's favor, since they cannot be expected to know they are violating the law if the case law prior to that date was not sufficiently clear on that precise factual situation. In police cases, this immunity also arises when the police have to act quickly and make split-second judgments that seemed reasonable at the time, at least to a judge.

This was an excessive force and false arrest case. Someone reported that three men had committed a burglary. Plaintiff awoke with the news that her son was involved in an incident on the street, so she went to the scene and saw her intoxicated son holding a long, narrow stick, with other other. people. Then the police show up. Plaintiff told the young men to move aside, using the stick that her son had been holding, to shoo them away. This is how the district court describes what happened next:

As the officers approach the entrance of the residence, plaintiff turns, still holding the stick. In an instant, as seen clearly on the videotape. Officer Rodriguez seizes Ms. Calixto and throws her to the ground before rushing into the building. While Ms. Calixto remains on the ground, the other officers follow in pursuit of her son and his companions. Seconds later the video shows the officers leaving the building with Ms. Calixto's son in custody. After several minutes, newly arrived uniformed officers arrest Ms. Calixto. None of the three named officers—Rodriguez, Cespedes, and Delassantos—are nearby when she is handcuffed by the uniformed officers. Id Moments later. Officer Rodriguez re-enters the video, grabs Ms. Calixto, who is now in handcuffs, and rushes her out of the video's frame in the direction of police vehicles.

In short, plaintiff was thrown to the ground and arrested. The charges were dropped and she sued the police. The district court said plaintiff has a case for both claims (which would allow plaintiff to bring her claims to trial), but the Court of Appeals (Cabranes, Lynch and Droney) reverses, and plaintiff loses the case because the officers have qualified immunity. There will be no trial.

The Second Circuit reminds us that the Supreme Court has repeatedly endorsed qualified immunity as a defense and that "the inquiry must be undertaken in light of the specific context of the case.” The Circuit cites Mullenix v. Luna, 136 S.Ct. 305 (2015), for that proposition. We also know that "qualified immunity is available to all but an officer who, on an objective basis, is either plainly incompetent or knowingly violates the law." Malley v. Briggs, 475 U.S. 335 (1986). These principles kill off plaintiff's case. Here is the reasoning on plaintiff's excessive force claim:

As depicted in the surveillance footage, Rodriguez sprinted towards the doorway at a high speed, with no opportunity to ask Calixto to move. We agree with Appellants that an officer in Rodriguez’s position would have reasonable concerns, such as a suspect escaping or potentially setting a trap for the police, and that Rodriguez’s push of Calixto out of the way when she turned, raised a stick she was holding to eye level, and blocked his way as he rushed to the door, was a reasonable level of force in the specific circumstances presented. Regardless of whether, in hindsight, Calixto actually posed a substantial threat, or intended to impede the officer’s progress, Rodriguez acted reasonably in pushing her and the stick away from his person.

Say goodbye to the false arrest claim, as well. The officers had "arguable probable cause" to arrest her. "Arguable probable cause" is another qualified immunity principle. "The surveillance footage and Calixto’s admissions in her deposition indicate that there is no dispute of any material facts as to whether the police officers had at least arguable probable cause. Rodriguez observed Calixto block his path, and he was present and communicating with the other officers when she was arrested minutes later. The evidence thus makes clear that the defendant officers all would have had a reasonable basis to believe probable cause existed."

Texting juror gets murder defendant a new trial

Judges always tell jurors to behave themselves. Jurors cannot talk about the case before the trial is over. Jurors cannot read news accounts of the case when the trial is pending. Jurors cannot do this, jurors cannot do that. In this case, a juror in a prominent murder trial in upstate New York violated all the rules, and that means the murder conviction is vacated and the defendant gets a new trial.

The case is People v. Neulander, a New York Court of Appeals ruling issued on October 22. Defendant was a prominent doctor in the Syracuse area who was accused of murdering his wife and tampering with evidence. Juror Number 12 sent and received hundreds of text messages about the case during trial. You read that right: hundreds of text messages. The juror also accessed news coverage about the case and, when the court inquired about this behavior, Juror 12 lied under oath, provided a false affidavit and even tried to erase the incriminating evidence from her cell phone.

Defendant gets a new trial. The Appellate Division Fourth Department held as such, and the New York Court of Appeals agrees. The Fourth Department noted that “every defendant has a right to be tried by jurors who follow the court’s instructions, do not lie in sworn affidavits about their misconduct during the trial, and do not make substantial efforts to conceal and erase their misconduct when the court conducts an inquiry with respect thereto.”

These cases are fascinating because I am sure that jurors pull stuff like this from time to time, but no one ever finds out about it. Juror 12 got caught because someone grew suspicious. During trial, this juror lied to the court when it inquired about her improper behavior. After the guilty verdict came in, an alternate juror told the court what Juror 12 had been up to during trial.

The defendant's appellate brief quotes from some of the incriminating text messages:

As soon as Juror-12 was selected to serve on the jury, she told her father about her selection. He replied: “Oh lucky you!” and “Make sure he’s guilty!”

That same day, Juror-12 told her friend Tiff Sampere that she had been selected as a juror. In the ensuing text exchange, Sampere twice referred to Neulander as “scary,” asking “Is he scaryyyy” and “Did you see the scary person yet.” Juror-12 responded that she had “seen him since day 1.”

Juror-12 exchanged messages with Sampere throughout the trial.

The day Jenna Neulander testified as a defense witness, Juror-12 exchanged dozens of messages with her friend Lindsay Flanagan about the trial. Flanagan’s messages started during a break in Jenna’s testimony, while Juror-12 was in the jury room. Flanagan asked whether the court “check[ed Juror-12’s] texts.” Juror-12 responded no. Flanagan then said she was following the trial “live on Twitter” and was “obsessed.” Flanagan said she thought Jenna was not credible. Flanagan said that she had “read so[] much” about the case that she knew “every possible detail that the public is allowed to know,” and that she was “so anxious to hear someone testify against Jenna.” In a message that Juror-12 later deleted, Juror-12 responded that “[n]o one will testify against her!” and explained that the only opportunity for the prosecution to question Jenna would come on cross-examination.

Following Jenna’s cross-examination, Flanagan wrote to Juror-12 that her “mind [was] blown that the daughter [was not] a suspect.” In a playful back-and-forth, Juror-12 sent Flanagan a “see no evil, hear no evil, speak no evil” emoji and Flanagan asked, “[or] is she?” with an accompanying emoji.

Flanagan continued to express her suspicions about Jenna, advising that she had “so many questions [she] would ask if [she] was one of the prosecutors or stuff [she] would look into if [she] was an investigator.”

The brief goes on to state that "Juror-12 deleted some of her text exchanges, including those with her father and Sampere, in their entirety. At the hearing, she was unable to explain why. . . . She first said that she had deleted the exchanges with Sampere because Sampere had moved, but moments later claimed not to remember why she had deleted the messages. Juror-12 also selectively deleted some of her exchanges with Flanagan, including: (1) Flanagan’s message asking whether the court reviewed Juror-12’s texts; (2) Flanagan’s message explaining that she had read so much about the case that she knew “every possible detail that the public is allowed to know”; and (3) Juror-12’s response to Flanagan’s message expressing a desire to hear someone testify against Jenna. Juror-12 had to delete these messages one-by-one and, once again, was unable to explain at the hearing why she did so."

Suspicious behavior warranted a Terry stop

The police can detain you if they have reasonable suspicion. In this case, the plaintiff's actions were suspicious enough for such a detention, and the case is dismissed. The plaintiff, I am sure, protested that he was doing nothing wrong, that he was just sitting in a parking lot. But context is crucial, and the courts are not sympathetic to men like this.

The case is Mastromonaco v. County of Westchester, a summary order issued on October 9. The rule is that “[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. This standard is met where an officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” We call that a Terry stop, named after a 1968 Supreme Court ruling. No warrant is necessary for a Terry stop.

Plaintiff was stopped because he was in a school parking lot after the school day had concluded, and his car was secluded "and a considerable distance from any other campus activities." In addition, plaintiff and his companion would not make eye contact with the police. They also "attempted to drive away abruptly in the middle of the conversation." This is suspicious behavior, so the police were legally able to apprehend the plaintiff to prevent him from driving away.

Once plaintiff was seized, the police searched him and also searched the car. They smelled marijuana in the car. Hence, plaintiff's formal arrest. That arrest was legal also, says the Court of Appeals (Calabresi, Pooler and Park). Plaintiff must have been acquitted of the charge, or maybe the prosecution dropped the charge, which allowed him to sue for false arrest. But that clearance does not mean the police lacked probable cause to arrest. Lots of people walk free after an arrest but cannot sue for false arrest because the courts ask whether the police had probable cause to arrest at the time of the arrest; there is no room for Monday-morning quarterbacking in cases like this.

Another case falls into the Garcetti graveyard

It's been a while since the Second Circuit has resolved a case involving public employee whistleblowing. These cases have dried up somewhat as the courts have broadly applied the Supreme Court's ruling in Garcetti v. Ceballos (2006) that says it's not free speech if the public employee speaks as an employee and not as a citizen. This distinction kills the case when the speech is pursuant to his official job duties. A lot of cases fall into the Garcetti graveyard. This one does, also.

The case is Waronker v. Hempstead Union Free School District, a summary order issued on October 17. Plaintiff was a highly-accomplished educator who became superintendent at the troubled school district in Hempstead, Long Island. According to the complaint, plaintiff began undertaking various reform efforts at the district, but he was met with resistance from within. That is when things took a turn for the worse for plaintiff. The Court of Appeals (Walker, Carney and Koeltl [D.J.]) writes that the district next fired "the Special Investigators who were looking at abuse, mismanagement and possible corruption,” prompting Waronker to send an email to the Board of Education advising that he had “consulted with several law enforcement agencies” about “matters [that] . . . appear to be both unlawful and unethical.”

Next thing you know, the Board suspended Waronker’s authority to act as superintendent. Plaintiff then distributed an open letter to the Hempstead community, urging members to “collaborate with me to make Hempstead Schools thrive again” and warned that “[p]olitics, self-interest[], patronage, vendettas, threats, and cover-ups cannot rule the day.” Four days later, the Board placed Waronker on paid administrative leave.

If you speak pursuant to your official job duties, it's not free speech under the First Amendment. If you speak as a citizen, it is protected speech. That's Garcetti in a nutshell. So if the school district's comptroller announced that someone is stealing money from the district, that's not First Amendment speech, because it's the comptroller's job to say so. If the comptroller is fired because of his "Impeach Trump" bumper sticker, that's free speech because he's speaking as a citizen and that kind of political speech is not part of his job description. This may sound unfair to you, but that's what the Supreme Court said in 2006.

Plaintiff loses the case because the community letter was not free speech, it was work speech. The Court of Appeals reasons:

Waronker does not plausibly allege that he was speaking as a citizen when he publicly accused the School District of corruption. The complaint makes clear that “root[ing] out [] corruption and mismanagement” was “part-and-parcel” of Waronker’s daily responsibilities as superintendent, even if, as Waronker claims on appeal, it was not part of his formal job description. Waronker’s factual allegations further make evident that he sent the Board Email and Community Letter pursuant to his official employment responsibilities. Not only do both of these communications focus on Waronker’s efforts as superintendent to reform the School District, but Waronker signed the Board Email using his official job title, “Superintendent of Schools,” and he posted the Community Letter on the School District’s website.

Nor is plaintiff's communications with the law enforcement agencies (as referenced in the Board email) protected by the First Amendment. "Nothing in the complaint suggests that he consulted with
these agencies as a private citizen. Instead, as he explains in the Board Email, Waronker felt 'compelled' to contact law enforcement because (1) the Board failed to take 'corrective action' after Waronker 'rais[ed] questions about suspected illegal financial activity,' and (2) Waronker had '[a] professional, moral and legal obligation to serve the District.' Waronker therefore framed his consultations with law enforcement as 'a means to fulfill, and undertaken in the course of performing, his primary employment responsibilit[ies].'”

What it all means is that for someone like plaintiff, a good deal of what he has to say about the district may be deemed unprotected speech because it will in some way deal with the school district. As superintendent, plaintiff was the king of the district. That's a loophole in First Amendment retaliation jurisprudence that the courts have not found a way to correct.