Wednesday, January 16, 2019

A good primer on prosecutorial immunity

As every plaintiff-side civil rights lawyer has advised his clients from time-to-time, you cannot sue the prosecutor. On rare occasions you can, but prosecutors have immunity from suit, for the same reason judges are immune from suit: every unhappy criminal defendant would otherwise sue the prosecutor. This judge-made rule ensures the courthouse will not be as tall as the Empire State Building.

The case is Ogunkoya v. Monaghan, issued on January 9. The facts are unusual. Plaintiff lives in Brooklyn. He was charged with fraudulent Home Depot gift card activity in Monroe County, which is   three or four hours away from New York City. While all this was going down, he was planning to take the New York bar examination. He was going to be arraigned in town court in Monroe County, but the town judge objected because the offenses allegedly took place in a different town. Rather than have plaintiff arraigned in the right town, the prosecutors delayed that arraignment and sought a bail hearing, claiming he was a flight risk. This led the local judge to impose a a $100k cash/$300k bond bail. A jury acquitted him of all charges, prompting plaintiff to sue the prosecutors. The district court said plaintiff could proceed with that portion of the case, but the Court of Appeals reverses.

Prosecutors cannot be sued for initiating a prosecuting and presenting the state's case. More broadly, the DA cannot be sued for acts that are taken in his capacity as an advocate. The Court of Appeals says the prosecutor's decision to prosecute plaintiff and proceed by grand jury indictment was a prosecutorial exercise of discretion entitled to absolute immunity. While the trial court said the local arraignments were a police and not a prosecutorial responsibility, the Second Circuit sees it differently. While it is generally a police responsibility to present a detailed person before a court for evaluation of the legality of her detention, a legal principle that might support plaintiff's case against the ADA on the ground that the ADA unreasonably delayed his prosecution, in this case, the ADA's function in controlling plaintiff's arraignments on multiple and different charges that would later be subsumed in a single charging document was part of the prosecutor's role as the gatekeeper of "whether an when the prosecute," the latter quotation arising from the seminal prosecutorial immunity case, Imbler, a Supreme Court case from 1976.

The decision to initiate prosecution, what charges to bring and how to perfect and consolidate those charges "is a quintessential prosecutorial function," the Circuit Court says. Not only were the prosecutors participating in plaintiff's arraignment, but they were also preparing to prosecute him on multiple charges in two other towns. Pursuing all the charges in a single indictment rather than pursue three separate criminal actions under the six felony complaints was ultimately a prosecutorial function. That plaintiff's prosecution was delayed in this regard does not give him a Section 1983 lawsuit against the prosecutors.

Tuesday, January 15, 2019

Internet and adult-pornography bans violate the First Amendment in child sex-offender case

District courts have broad discretion to sentence offenders, including sex offenders. But there are limits. In this case, the Second Circuit holds that a trial judge in Albany went too far in prohibiting a sex offender (involving two 13-year-old girls) from accessing the Internet for the next 11 years. The Court also says the trial judge exceeded her authority in prohibiting the defendant from accessing adult pornography.

The case is United States v. Eaglin, issued on January 11. Writing for the Court, Judge Carney says the trial court's restrictions "are such unusual and severe conditions" that "merit our close examination" despite deference to the district court's conditions of supervised release.

This is ultimately a free speech case. Like it or not, even sex offenders have constitutional rights. This case could not have been decided 25 years ago, pre-Internet. But with a ubiquitous Internet, judges have to determine how Internet usage -- or Internet bans -- impact the First Amendment. Even unsympathetic parties can win cases under the First Amendment, as demonstrated by this case.

On the Internet ban, the Court says that "in a modern society," Eaglin has a constitutional right to access the Internet, as per a Supreme Court ruling from 2017, Packingham v. North Carolina. The ban imposed here is pretty broad, as "Eaglin has a First Amendment right to be able to email, blog, and discuss the issues of the day on the Internet while he is on supervised release." Not being able to go online means Eaglin won't be able to look for work, even though being employed is one of the conditions of his supervised release. Eaglin's offenses did not even involve the Internet. In short, absolute Internet bans violate the Constitution, no matter who the criminal defendant is or what he has done.

What about the legal adult pornography ban? At first glance, they may seem reasonable, as defendant is a sex-offender. The problem with this condition is that it bears no relationship to Eaglin's offenses (involving minors), and there is no showing that accessing legal adult pornography will have any recidivist consequences.  All the trial court said on this point was that "when you view pornography, I happen to believe that the community is at risk from you." This general statement is not enough for an across-the-board ban like this, the Court of Appeals says, as the judge did not say why viewing adult pornography would present such a risk. There is no evidence that defendant has a history of viewing child pornography.

Monday, January 14, 2019

Yes, there can be excessive force without any actual damages

Sometimes, you lose even when you win. In this police misconduct case, the plaintiff won his jury trial. The jury said the jury used excessive force against him. But the jury only awarded him a dollar in damages. As for the other plaintiff, her case did not even reach the jury, as the trial judge dismissed her claims mid-trial. They both appeal, and they both lose the appeals.

The case is Feliciano v. Thomann, a summary order issued on January 11. Let's start with Hector Feliciano's case. The jury said Hector suffered excessive force. But it was all worth only a dollar. Juries can do that; they are not required to award damages when your civil rights are violated. To win a damages award, you have to prove them. Now, if the plaintiff puts on compelling (and largely undisputed) evidence of damages and the jury still gives you nothing, the court can award you a new trial on damages. But if there is no proof of actual injury, then a dollar may be all you get. Hector asks the Court of Appeals (Cabranes, Pooler and Droney) to award him a new trial, but the Court notes that Hector said at trial that the excessive force did not cause any long-lasting injuries. This means the one-dollar award is not a miscarriage of justice or seriously erroneous. No new trial for Hector on damages.

At least Hector got the satisfaction of a verdict in his favor. Elisa Felicano's case did not even reach the jury. The trial judge said that Elisa did not prove that she suffered anything beyond the minimal use of force. Under the case law, even a legitimate arrest can involve too much force. Although the Second Circuit's ruling does not tell us what happened, or even how a husband-wife plaintiff team would have occasion to sue the police for excessive force in the first place, the Court says Elisa did not put on enough evidence to take her case to a jury.

One final slap in the face, at least for Hector's lawyers. As every civil rights lawyer knows, the prevailing party in a Section 1983 civil rights case can recover her attorneys' fees from the losing party. But a key exception to that rule is that a one-dollar jury award normally entitles you to no attorneys' fees at all. This stems from Farrar v. Hobby, a Supreme Court ruling from 1992. This outcome may puzzle the non-lawyer. If the plaintiff proves her rights were violated, then the case was worth bringing, right? The Supreme Court did not see it that way. No attorneys' fees means the plaintiff had minimal success. Farrar represents one of those loopholes in civil rights law that will probably never be remedied.

Thursday, January 10, 2019

Cases like this are the reason judges drink

Many cases settle with assistance from the Magistrate Judge who will talk with the parties and their attorney to find a way to resolve the case without the burdens of additional discovery and risk of trial. If the magistrate can broker a deal, the judge usually brings everyone back into the courtroom to put the deal on the record. There are reasons why judges do this.

The case is Doe v. Kogut, a summary order issued on January 9. This is a domestic violence tort claim that the plaintiff filed in federal court, probably because the parties lived in different states, providing the federal court with "diversity jurisdiction." After the parties agreed on the terms of settlement, the judge immediately put it on the record. Now, a judge could ask the parties to place the deal in writing after they get back to their offices and then have the parties sign it. But judges know better. They know that parties can be mercurial and try to walk away from the deal, as lawsuits can be emotional and difficult, and many clients have buyer's remorse after agreeing to settle. The court system deals with this by having the parties stand before the judge and place the deal on the record in open court right after they achieve the handshake agreement in the judge's chambers. Only then can the lawyers return to their offices to draft a formal agreement. But usually, the open-court agreement on the record is enough to officially settle the case.

The judge in this case put the deal on the record in open court. The plaintiff then tried to challenge the deal, claiming there were never a written deal. But at the settlement conference, the magistrate judge said the parties would agree to the verbal settlement on the record, and no one objected to that. Second Circuit law holds that an "agreement need not be reduced to writing if it entered into voluntarily on the record in open court." That case is Powell v. Omnicom, 497 F.3d 124 (2d Cir. 2007).

The plaintiff also objects to the in-court settlement because she entered into it under duress. The Magistrate Judge rejected this argument, and the Court of Appeals (Jacobs, Sullivan and Korman [D.J.] affirms. Plaintiff says the judge told her that defendant threatened to report her to the IRS if she did not settle. But the Magistrate Judge did not recall saying that. Plaintiff's lawyer is also not backing her up on this allegation. The Court of Appeals credits the magistrate judge's view that there was no such threat during settlement discussions. While plaintiff further says she was in bad psychological shape during the settlement conference because her psychiatrist had physically assaulted her only one day earlier, the Court of Appeals notes that "mental fragility is insufficient to show duress." For that proposition, the Court cites Blatt v. Manhattan Med. Grp., P.C., 131 A.D. 48 (1st Dept. 1987). I guess there is no federal case standing for that proposition. We have one now.   

Tuesday, January 8, 2019

Supreme Court summarily rejects Ninth Circuit's qualified immunity analysis in police misconduct case

Over the last few years, the Supreme Court has been taking up Section 1983 cases in order to remind the lower courts that police misconduct lawsuits cannot proceed unless the officers have violated clearly-established law. Usually, this exercise results in the Supreme Court either dismissing the case or directing the lower court to review the case once again to ensure the Court's directives are being followed.

The case is City of Escondido v. Emmons, issued on January 7. This case was not argued before the Court. Instead, after Emmons filed a certiorari petition, the Court resolved the issue on the papers, a common practice these days in qualified immunity cases involving the police.

Qualified immunity is a legal doctrine that says the police (and other public officials) cannot be sued for damages in civil rights cases unless they violated clearly-established case law that put the defendants on notice that they were violating the law. Not all legal issues are clearly-established, primarily because the universe of factual situations have not yet been decided by the federal courts, and it is not enough to say the law is clearly-established simply because the law prohibits the excessive use of force by a police officer. In determining whether the law is clearly-established, the courts ask whether, given the facts of any given case, was the officer on notice that excessive force was illegal.

In this case, the police showed up to a woman's apartment in a domestic incident after someone called the police. Here are the facts:

The officers knocked on the door of the apartment. No one answered. But a side window was open, and the officers spoke with Emmons through that window, attempting to convince her to open the door to the apartment so that they could conduct a welfare check. A man in the apartment also told Emmons to back away from the window, but the officers said they could not identify the man. . . .

A few minutes later, a man opened the apartment door and came outside. At that point, Officer Craig was standing alone just outside the door. Officer Craig told the man not to close the door, but the man closed the door and tried to brush past Officer Craig. Officer Craig stopped the man, took him quickly to the ground, and handcuffed him.Officer Craig did not hit the man or display any weapon. The video shows that the man was not in any visible or audible pain as a result of the takedown or while on the ground. Within a few minutes, officers helped the man up and arrested him for a misdemeanor offense of resisting and delaying a police officer.

The Ninth Circuit said the officer who took down Emmons did not have qualified immunity because the law is clearly-established that excessive force is prohibited under the Constitution. In resolving this issue against the police officer, the Ninth Circuit cited a case from that Circuit stating an officer cannot use excessive force when the other guy is engaging in mere passive resistance. But that other case is not this case, the Supreme Court says, reasoning, "The Court of Appeals made no effort to explain how that case law prohibits Officer Craig's actions in this case." What the Supreme Court is saying is that the passive resistance case is not close enough to this case. The Ninth Circuit will have to take up this issue again and scour its own precedents to see if any case comes closer to this one. If there is no such case, then the officer will prevail without trial.

Monday, December 31, 2018

Circuit revisits the right procedure for amending complaints in the face of Rule 12 motions

This case talks about the procedure guiding motions to dismiss a federal complain under Rule 12(b)(6). In particular, when can the plaintiff amend the complaint after the district court grants the motion to dismiss for failure to state a plausible claim? The Court of Appeals rejects the practice of at least one district court judge in holding that the time for plaintiff to file an amended complaint happens after the court rules on a motion to dismiss.

The case is Kopchik v. Town of East Fishkill, a summary order issued on December 26. I wrote about the ADEA and disability discrimination claims the other day. Not only did the Court of Appeals reinstate the plaintiff's claims on the merits, it throws in a few words about the district court's complaint-amendment procedures.

The district courts know that a motion to dismiss can actually result in two motions. If the first motion is granted because the plaintiff does not allege enough facts to state a claim, the plaintiff can amend the complaint once under rules. This means that, in opposing the motion to dismiss, the plaintiff might also cross-move to amend the complaint to fill in any deficiencies identified by defense counsel in filing the motion. Federal judges do not want two motions to dismiss in the same case, so they have procedures to prevent that. Some judges have the lawyers appear in court for a pre-motion conference to argue the merits of the motion before defense counsel even files it. During that colloquy, the judge might ask plaintiff's counsel if he wants to amend the complaint before the motion is file. Another approach, followed by the district court in this case, is to put the motion to dismiss on hold to see if plaintiff wants to file an amended complaint rather than oppose the motion; if plaintiff choose that route, the motion to dismiss is set aside, as we have a new complaint in the case, though defendant can move against the new complaint, as well. Under this procedure, if plaintiff chooses not to file an amended complaint in the face of defendant's motion, he forfeits the right to file an amended complaint.

The Court of Appeals notes that it has already rejected the latter procedure, citing Lorely Fin. No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 189-91 (2d Cir. 2015). In light of that case, the Court says, "there is no obligation on a plaintiff to expend time and resources to amend a complaint before knowing whether the court will find it insufficient, and if so, in what ways." The Court said in the Lorely case, "Without the benefit of a ruling, many a plaintiff will not see the necessity of amendment   or be in a position to weigh the practicality and possible means of curing specific deficiencies." In the end, the Court says, "It is inappropriate to deny a plaintiff the opportunity to replied after a defendant's motion to dismiss is granted, simply because the plaintiff decided not to replied before learning whether the court would find the complaint insufficient. The opportunity to amend the complaint is appropriately presented after the district court rules on a motion to dismiss."

Friday, December 28, 2018

Town board's fancy footwork in restructuring positions supports ADEA retaliation claim

Employers can get pretty creative when it comes to discriminating against people who file discrimination charges with the EEOC. The Court of Appeals recognizes that notion in reinstating an age discrimination lawsuit against a Duchess County municipality.

The case is Kopchik v. Town of East Fishkill, a summary order issued on December 26, a Christmas present for plaintiff, who claims he resigned his position under duress after the town eliminated a class of building and maintenance positions and then re-hired everyone but plaintiff, who instead was offered a position that he could not physically perform in light of his injuries arising from a job-related motor vehicle accident. This kind of fancy footwork could support plaintiff's retaliation claim, the Court of Appeals (Leval, Droney and Walker) says.

The Second Circuit raises a few interesting points. First, while the district court said there is no retaliation claim because the reorganization took place nine months after plaintiff filed the EEOC charge, the Court of Appeals notes there is no bright-line time-gap that will support or kill off a retaliation claim. Each case has to be evaluated in context. The Court says the nine-month gap may be explained by the amount of time it would take for the Town Board to undertake and formally adopt the restructuring. This reasoning reflects the reality of municipal decisionmaking, where nothing happens overnight. In addition, the Court of Appeals says, the retaliation could have stemmed from a prior EEOC charge that plaintiff filed in relation to earlier discrimination that plaintiff did not turn into a lawsuit. After the 90-day deadline for plaintiff to file a lawsuit in connection with that earlier charge came and went without a lawsuit, the Town Board waited another two months pass its job-restructuring resolution. While the trial court said in dismissing the case that it was not plausible for the Town Board to wait another two months to retaliate, the Court of Appeals says "it would be plausible for the Town to let some further time pass, so as to conceal its motivation." I have not previously seen this reasoning in a Second Circuit ruling. A smart plaintiff's lawyer will use that reasoning to explain away a lengthy time-gap between the protected activity and the retaliation. But bear in mind this is a summary order and not a precedential opinion, though summary orders may be cited if you've got nothing else.

In any event, we also have differential treatment between plaintiff and his non-disabled colleagues such that the time-gap does not alone revive plaintiff's lawsuit. Since other workers had their jobs eliminated but were brought back into town employment except for plaintiff, that also supports the minimal prima facie case.

These facts also revive plaintiff's disability discrimination claim, as management knew plaintiff was seriously injured and it futzed around with the positions to eliminate him from the town workforce, the Court of Appeals says. While the district court said that whether the town board's resolution eliminating the maintenance workers' positions "had a unique effect on plaintiff because of his disability is irrelevant to the causal connection" element of the prima facie case, the Second Circuit sees it differently. The resolution appeared to be designed to exclude plaintiff while bringing everyone else back to work. Under the minimal prima facie standard, plaintiffs states a plausible claim.