Wrong place, wrong time, wrong name (sort of)

This guy was detained by immigration authorities and remained in custody for four days before authorities released him because they arrested the wrong guy under an immigration detainer. He sued for false arrest, but the trial court dismissed the case on a Rule 12 motion. The Court of Appeals reinstates the false arrest claim.

The case is Hernandez v. United States, issued on September 17. Wrong place, wrong time, right name, sort of. Luis Hernandez is an American citizen. But the government moved to deport him, believing he was a native of Honduras. In fact, there was another person with a similar name, Luis Enrique Hernandez-Martinez, with the same birthday as our plaintiff. Eventually, plaintiff was allowed to go home.

The police are sometimes allowed to get it wrong. Many people are arrested or detained for offenses they did not commit, but that does not mean the police lacked probable cause to arrest. False arrest cases are dismissed on a regular basis because "probable cause" sets a low bar for the police to satisfy.

But in this case, at least as set forth in the complaint, plaintiff has a case. The difficult issue in this case is whether Department of Homeland Security had probable cause to lodge an immigration detainer. The Second Circuit (Chin, Wesley and Kaplan [D.J.]) says, "because it is a constitutional right to be free from an unreasonable seizure, a reasonable officer must act diligently before lodging a detainer against an individual and depriving that individual of his or her freedom." The Circuit cites Dunaway v. New York, 442 U.S. 200, 214‐15 (1979). That is about as pro-plaintiff a statement you'll see in a false arrest case, as courts usually add that law enforcement do not have to conduct a full investigation into someone's guilt or innocence before taking them into custody.

Plaintiff sufficiently alleges a false arrest claim. The Court writes:

The Complaint alleges that the Government lacked probable cause because Hernandez was the wrong person: he was not of Honduran nationality, his middle name was not ʺEnrique,ʺ his last name was not ʺHernandez‐Martinez,ʺ his name therefore did not match the name on the detainer, and DHS failed to inquire into whether it was issuing a detainer for the right person. We agree that these allegations are sufficient to plausibly allege a lack of probable cause.

Since "the names did not match, further inquiry was required." Moreover, "the Complaint plausibly alleges that the Government failed to conduct even a rudimentary inquiry into Hernandezʹs citizenship or identity. Indeed, Hernandez has alleged that his citizenship was readily ascertainable, and officers 'may not disregard facts tending to dissipate probable cause.'ʺ

The government argues that plaintiff has no case, claiming that "the similarity in surnames alone is
sufficient to establish probable cause because of the convention in Spanish speaking cultures to shorten surnames composed of the fatherʹs and motherʹs surnames to the first of the two surnames." Creative argument, but no dice. The Court says:

While names of foreign immigrants may be less familiar to some in the United States and ʺdistinctions may therefore be more difficult to spot than variations between certain European or Anglicized names (e.g., John/Jon, Smith/Smyth, or Eric/Erik), a lack of cultural familiarity does not excuse disregarding easily confirmable differences.ʺ Indeed, ʺ[t]o hold otherwise would suggest that a lower standard of proof/lower level of investigation might be necessary in the case of individuals with Latin or otherwise non[‐]Anglo names, raising a host of constitutional concerns.ʺ

 No case quite holds this (other than this one) but the Second Circuit does cite to a few cases that touch upon this issue: United States v. Brignoni‐Ponce, 422 U.S. 873, 886 (1975) (ʺMexican descent . . . alone [does not] justify . . . a reasonable belief that [petitioners] were aliensʺ). Also, "Allowing law enforcement officers to target people based solely on characteristics such as ethnicity or national origin is to ʹcondone ethnic harassment.ʺ Zuniga‐Perez v. Sessions, 897 F.3d 114, 127 (2d Cir. 2018)

No false arrests in veterans' curbside vendor case

The Court of Appeals has rejected a district court false arrest judgment in favor of disabled veterans who operate vending carts on New York City sidewalks.

The case is Crescenzi v. City of New York, issued on October 3. New York City law allows disabled vendors to operate the food carts. They got arrested when the police asked them to move their carts closer to the curb. The district court ruled in the veterans' favor, finding that the city does not require curbside vending. The Court of Appeals (Livingston and Droney) disagrees, over the dissent of Judge Katzmann, who would certify this state law situation to the New York Court of Appeals, which sometimes takes up issues like this to help the Second Circuit reach the proper result.

We got ourselves a case of statutory construction. The regulation at issue reads: no disabled veteran vendor "shall occupy more than eight linear feet of public space parallel to the curb in the operation of a vending business and, in addition, no [disabled veteran vendor] operating any vending business on any sidewalk shall occupy more than three linear feet to be measured from the curb toward the property line."

In other words, the regulation has two clauses: the first clause provides that no vendor “shall occupy more than eight linear feet of public space parallel to the curb.” "The second clause provides that no vendor “shall occupy more than three linear feet to be measured from the curb toward the property line." The Court recognizes the second clause is ambiguous. But it accepts the City's interpretation of the regulation:

first, it limits the dimensions of vending carts to eight feet in length by three feet in width; second, it requires that carts be positioned lengthwise alongside the curb, out of the way of pedestrians. This interpretation gives full effect to every word in the second clause. Carts can occupy the three feet nearest the curb, “to be measured from the curb toward the property line.”

I know, it's all very fuzzy. In the end, the two-judge majority says the regulation ultimately requires the vendors to place their carts near the curb, closer to the street. "To do otherwise, and allow carts to be placed in the middle of the sidewalk, would be to defy common sense as well as both the text and context of the statutory provision before us."

Judge Livingston opens the opinion with an ode to the streets of New York City, a City like no other, which places in context the complexities of regulating human activity in a city that is home to more than eight million people, plus workers and tourists:

The City is a bustling metropolis in which walking is the primary means of getting around for many of the 8.5 million people who call the City home (not to mention the City’s 60 million annual visitors). See Winnie Hu, New York’s Sidewalks Are So Packed, Pedestrians Are Taking to the Streets, N.Y. Times, June 30, 2016. Much of this pedestrian traffic takes place on sidewalks. Congestion and blockages on these busy sidewalks, then, can create frustrating challenges and real dangers for people simply trying to get to work, school, or the grocery store. The City, cognizant of the sometimes‐difficult circumstances of its pedestrians, regulates its sidewalks with a complex patchwork of laws and regulations in order to ensure a steady—and safe—flow of foot traffic.

Jury could find "fit model" was an "employee" under FLSA

This case explores when someone is an "employee" under the Fair Labor Standards Act, which requires that management pay their employees minimum wage and overtime when appropriate. These issues get litigated when management says the worker is not really an employee but an independent contractor. The Court of Appeals finds the jury could rule that plaintiff was an employee.

The case is Agerbrink v. Model Service LLC, a summary order issued on September 24. Plaintiff was a "fit model" in that she would be hired based on her body proportions to help clothing manufacturers test the fit of their designs. Plaintiff entered into a three-year agreement with Model Service, which scheduled her for meetings with clothing companies when they contacted Model Service for that purpose. The question is whether plaintiff was a model service "employee" under the FLSA. We answer that question largely by determining if management exercises sufficient control over the plaintiff. If no significant control, then the plaintiff was an independent contractor. We also consider other factors under the "totality of the circumstances" test, but "control" seems to be a dominant consideration.

The district court dismissed the case, but the Court of Appeals (Katzmann, Wesley and Bianco) reinstates it. The Court opens its analysis with this: "While no single element of Agerbrink’s and MSA’s relationship is dispositive to the FLSA inquiry, there exist genuine disputes regarding Agerbrink’s control over her work schedule, whether she had the ability to negotiate her pay rate, and, relatedly, her ability to accept or decline work. These disputes are significant as they relate both to the 'degree of control' MSA exerted over Agerbrink and Agerbrink’s 'opportunity for profit or loss.'” The Court cites Brock v. Superior Care, Inc., 840 F.2d 1054 (2d Cir. 1989), for this proposition. A more recent case (also cited in this ruling) is Barfield v. N.Y.C. Health & Hospitals Corp., 537 F.3d 132 (2d Cir. 2008).

Plaintiff wins the appeal because she claims that defendant coordinated all of her scheduling with apparel clients and maintained her master schedule. She also asserts "she had no control over negotiating the amount an apparel company would pay for her services and . . . she was discouraged from discussing compensation with apparel companies." As "independence to determine her schedule and income are key inquiries to determining 'whether, as a matter of economic reality' Agerbrink 'depended upon' MSA’s 'business for the opportunity to render service' or was 'in business for' herself." As the jury may find that plaintiff was an MSA employee and not a contractor, the case is remanded for trial.

First Department narrows who may be personally sued under the NYC Human Rights Law

If you handle discrimination cases in New York City, you know the New York City Human Rights Law provides for greater protections than the federal civil rights laws, including Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. The state courts periodically issue rulings that adhere to that statutory interpretation. This case is not one of them.

The case is Doe v. Bloomberg, L.P., issued by the First Department on September 24. The plaintiff claims she was sexually harassed by Nicholas Ferris while employed by the company formed by former NYC Mayor Michael Bloomberg. She is suing him personally, in part, on the basis that Bloomberg created a culture of sexual harassment at his company. The First Department notes that, while the statute imposes strict liability on "employers," the law "does not provide a definition of 'employer' and the legislature has not provided guidance as to how 'employer' should be defined under the statute." Here are the basis rules governing employer defendants:

The Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors.  Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. 

Looking at this issue anew, the First Department holds in a 3-2 vote that "in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim." In other words, the corporate officer must have some personal involvement in the discriminatory violation. It is not enough that he is a corporate officer.

The First Department provides this explanation:

holding an individual owner or officer of a corporate employer liable under the City HRL as an employer, without even an allegation that the individual participated, in some way, in the specific conduct that gave rise to the claim, would have the effect of imposing strict liability on every individual owner or high-ranking executive of any business in New York City. The City HRL is not so broad that it imposes strict liability on an individual for simply holding an ownership stake or a leadership position in a liable corporate employer.

Michael Bloomberg cannot be sued in this case under this new interpretation. The First Department says the complaint "fails to allege any facts from which it can be inferred that Mr. Bloomberg was aware or should have been aware of the discriminatory conduct committed by Mr. Ferris. Plaintiff never complained to Bloomberg L.P.'s HR Department about Mr. Ferris's conduct and there are no allegations in the complaint that Mr. Bloomberg knew or should have known about Mr. Ferris's conduct toward plaintiff, that Mr. Bloomberg knew or should have known that Mr. Ferris behaved in a discriminatory manner toward women other than the plaintiff or that Mr. Bloomberg had any involvement or interactions with Mr. Ferris at any point."

Since this case was decided 3-2, it looks like this dispute will reach the New York Court of Appeals, which has authority to hear divided cases like this. 

The Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim.

Doe v. Bloomberg, L.P., No. 28254/16E, 2019 WL 4605568 (N.Y. App. Div. Sept. 24, 2019)

The Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim.

Doe v. Bloomberg, L.P., No. 28254/16E, 2019 WL 4605568 (N.Y. App. Div. Sept. 24, 2019)

he Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim

Doe v. Bloomberg, L.P., No. 28254/16E, 2019 WL 4605568 (N.Y. App. Div. Sept. 24, 2019)

he Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim

Doe v. Bloomberg, L.P., No. 28254/16E, 2019 WL 4605568 (N.Y. App. Div. Sept. 24, 2019)

Case implicating one-person-one-vote in prison context survives appellate review

The Court of Appeals has ruled that the NAACP may proceed with a lawsuit against the State of Connecticut in claiming that the state violates the one-man-one-vote principle in counting incarcerated individuals as residing in the district where their prison is located rather than the district on which they presently reside.

The case is NAACP v. Merrill, issued on September 24. While most incarcerated prisoners cannot vote, their are still included in population counts. I mean, they still exist as human beings. The question is what legislative district do they belong to when they are in jail, often situated away from their home counties. What it all means, according to plaintiffs, is that counting the inmates as residents of their prison counties "artificially inflates the representation of some parts of the state at the expense of others: the representational power of the predominantly White residents living in the prisonersʹ mostly rural prison districts is artificially inflated, while the representational power of the predominantly Black and Latino residents living in prisonersʹ more urban home districts is artificially deflated."

The state argues there is no case under the Eleventh Amendment's general prohibition against suing the state in federal court. (As an aside, the Eleventh Amendment is really something that needs to be reexamined, as I don't know what purpose it serves to prevent people from suing the state in federal court, and whatever reasons may have existed for that policy back in 1787 probably don't apply in the modern age.) There are exceptions to the Eleventh Amendment, including the principle that you can challenge in federal court the state's ongoing violation of federal law and seek prospective, or injunctive, relief, and not money damages. That's the case here, as plaintiffs want a declaratory judgment and an injunction requiring the state to adopt a new districting plan for elections.

If you are a one-person-one-vote junkie, then this case is for you. The Court of Appeals (Wesley, Chin and Bianco) deals with the state's various defenses to this case, requiring the judges to explore f this constitutional principle. One issue involves what constitutes "one-person-one-vote." The Supreme Court has said states may deviate from that principle in pursuit of other legitimate objectives, and that "minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment." The general rule is that "a maximum population deviation under 10 percent falls within this category of minor deviations." The state argues that plaintiff has no case because the deviation falls within the 10 percent margin, but the Court of Appeals rejects that defense on this Rule 12 motion, as "[a] prima facie case . . . is an evidentiary standard, not a pleading requirementʺ and ʺit is not appropriate to require a plaintiff to plead facts establishing a prima facie caseʺ because ʺthe precise requirements of a prima facie case can vary depending on . . . context,ʺ and ʺit may be difficult to define the precise formulation of the required prima facie case in a particular caseʺ before ʺdiscovery has unearthed relevant facts and evidence." What it means is that "the 10% threshold is not a safe harbor."

Plaintiff wins associational discrimination claim in Second Circuit

The Court of Appeals has ruled that a man who was fired shortly asking his employer for time off to take care of his ailing daughter has stated a claim for associational discrimination under the Americans with Disabilities Act. This case represents the first time a plaintiff has prevailed in the Court of Appeals on this issue.

The case is Kelleher v. John A. Cook, Inc., issued on September 24. I represent the plaintiff and argued the appeal. Kelleher worked for a Kingston, N.Y., company as a laborer. His young daughter has Rett Syndrome, a serious illness that affects her ability to speak, walk and breathe. After plaintiff told management that his daughter's illness required him to rush home after work to aid in her care, his relationship with the company deteriorated, and at one point, when he asked to work eight-hour shifts for one week (instead of the 10-12 hour shifts), management said "his problems at home were not the company's problems," and he would not receive a raise. The next day, after plaintiff's daughter suffered a near-fatal seizure, plaintiff told defendant he could not work the following Monday. He arrived late to work on Tuesday and learned he had been demoted. A few weeks later, after management again denied plaintiff's request for eight-hour shifts, he was fired, purportedly for arriving to work 10-15 minutes late.

Plaintiff proceeds under the "associational discrimination" theory under the ADA. In 2016, the Court of Appeals outlined how plaintiffs can win these claims:

1) that she was qualified for the job at the time of an adverse employment action; 2) that she was subjected to adverse employment action; 3) that she was known at the time to have a relative or associate with a disability; and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision. One scenario that may support an inference that the adverse employment decision was motivated by associational discrimination is “distraction”: the employer’s “fear[] that the employee will be inattentive at work due to the disability of the disabled person.”

That case was Graziadio v. Culinary Inst. of America, 817 F.3d 415 (2d Cir. 2016). Graziadio was the Second Circuit's first foray into this area. The legal standard it set forth was narrow, and to my knowledge no such claim has survived in the Second Circuit. The district court dismissed Kelleher's case, the Court of Appeals (Jacobs, Leval and Furman [D.J.]) brings it back. The employer argued that Kelleher was really challenging management's refusal to reasonably accommodate his schedule to take care of his daughter. After all, the ADA does not require employers to reasonably accommodate employees in connection with disabled family members. But that argument does not dispose of the case. The Second Circuit states, 

Though the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a disabled person, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination. Thus, in this case, Cook’s demand that Kelleher “leave his personal problems at home” after Kelleher requested one week of shortened workdays supports Kelleher’s claim that his later termination was motivated by associational discrimination.

This evidence also permits the inference that management thought that plaintiff's daughter was a "distraction" under the associational discrimination theory.All the plaintiff needs in a Rule 12 motion to avoid dismissal is "at least minimal support for the proposition that the employer was motivated by discriminatory intent." As the complaint satisfies that requirement, Kelleher has a claim, and the case is reinstated.

Trump ordered to give deposition testimony in NYC campaign assault case

A state court judge in the Bronx has ordered that President Trump must sit for a videotaped deposition in a lawsuit that alleges he had authority over his employees who allegedly attacked protesters outside Trump Tower during the presidential campaign in September 2015. The case is heading for trial soon.

The case is Galicia v. Trump, issued on September 20. Trump's lawyers objected to the deposition, arguing that a sitting president cannot be required to give testimony under oath. In a prior court ruling in this case, the Court summarized the allegations as follows:

On September 3, 2015, plaintiffs assembled in front of the Manhattan office of Republican Party Presidential candidate Donald J. Trump located at 725 Fifth Avenue for the purpose of demonstrating their opposition to him as a political candidate. The high-rise building also houses commercial and residential property. Two plaintiffs were costumed in white hoods and robes, intending to call attention to the recent endorsement of Mr. Trump by David Duke, an individual associated with the Ku Klux Klan and recognized as a former KKK leader. Additionally, the plaintiffs brought with them three signs that they made which read in large letters “TRUMP MAKE AMERICA RACIST AGAIN” the word “RACIST” having displaced the word “GREAT”.

Plaintiffs positioned themselves and arranged their signs along a portion of the sidewalk opposite the entrance of the building. Security personnel approached the plaintiffs and admonished them to remove the signs. This was not the first demonstration by these plaintiffs in front of this property. This was also not the first time there were tensions between the building security and these demonstrators, however on this occasion the situation certainly became more intense. At some point, Keith Schiller (“Schiller”), Director of Security, physically attempted to remove two of the signs from where they were located tearing one in the process. In response, plaintiff Galicia attempted to wrest the sign back from Schiller whereby Schiller’s reaction was to repel Galicia ultimatelystriking him.

Rejecting Trump's arguments that he cannot be forced to give deposition testimony, Justice Gonzalez opens her analysis this way:

More than 200 years ago our founders sought to escape an oppressive, tyrannical governance in which absolute power vested with a monarch. A fear of the recurrence of tyranny birthed our three-branch government adorned with checks and balances. Chief Justice John Marshall famously stated "[t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Put more plainly, no government official, including the Executive, is above the law.

Plaintiffs claim that Trump "has had a substantial role in bringing about violence on the part of his security guards." In his affidavit in support of the deposition subpoena, plaintiffs' lawyer wrote:

Prior to the September 3, 2015 attack on plaintiffs, Donald Trump made the following statement during a press conference on August 11, 2015 wherein he advised that he intended to use violence against protestors in the future, personally or through agents:

"I would never give up my microphone. I thought that was disgusting. That showed such weakness. The way he was taken away by two young women, the microphone, they just took the whole place over and the audience, which like him -- I mean, they were him. They are saying what is going on? How can this happen? That will never happen with me. I don't know if I'll do the fighting myself or if other people will. But that was a disgrace. The way they -- I felt badly for him. But it showed that he’s weak."

On August 25, 2015, defendant Trump directed defendant Keith Schiller to forcibly remove Univision reporter Jorge Ramos from a press conference where Donald Trump was speaking. The physical removal of Mr. Ramos by defendant Schiller, which was captured on film by several news agencies, occurred directly in front of the podium where Donald Trump was speaking. Despite having witnessed his bodyguard of sixteen years1 remove Mr. Ramos, Trump denied even knowing Schiller’s identity when questioned by the press corps after the event by stating, “You’ll have to talk to security. Whoever security is escorted him out.”

Plaintiff's counsel also provides other examples of Trump's public statements suggesting that other protesters should be "roughed up" at his campaign rallies, telling Fox & Friends in November 2015 that "The man you say was roughed up, he was so obnoxious and so loud, he was screaming. I had 10,000 people in the room yesterday. 10,000 people. And this guy started screaming by himself. I don't know, rough up, he should have been -- maybe he should have been roughed up because it was
absolutely disgusting what he was doing." Counsel adds that "Donald Trump has publicly given specific directives to security personnel to use physical force and to engage in unlawful conversion of protestors’ property – the same conduct that is the subject of plaintiffs’ Amended Complaint." In January 2016, during a campaign speech in Vermont, Trump said, "Throw him out into the cold. You know. Don’t give them their coat. No coats. No coats. Confiscate their coats." You get the picture.

The Supreme Court held in Clinton v. Jones (1997) that Bill Clinton was not absolved from responsibility for unofficial conduct; that case alleged that Clinton exposed himself to Paula Jones before he became president. In Zervos v. Trump, 171 A.D.3d 110 (1st Dept. 2019), the Appellate Division has also held that State Supreme Court may exercise jurisdiction over the President (that case involved defamation). But this case raises a new issue: whether the President can be forced to provide sworn testimony for trial. Citing Zervos, Justice Gonzalez stated, "the First Department, which this Court must follow, recently contemplated both the President's involvement during discovery and a trial judge deeming the President's participation at trial necessary." While the plaintiffs in this case did not take Trump's deposition in discovery, they did not waive his trial testimony. "[T]here is no lawful basis to conclude that the President's testimony may only be taken during discovery." Here is the Court order:

"ORDERED, that defendant President Donald J. Trump shall appear for a videotaped deposition prior to the trial of this matter and provide testimony for the use at trial."