Racial stereotypes prompt First Department to reinstate lawsuit

The First Department has reinstated a racial discrimination lawsuit against the City of New York and a police department supervisor based on explicit and implicit racial comments made by the supervisor in the context of the plaintiff's employment.

The case is Taylor v. The City of New York, issued on May 19. Plaintiff is a Black man who worked for the NYPD. He sues under the New York City Human Rights Law, which the City Council intended to reach further than federal law, deemed insufficiently protective of plaintiffs' rights when the City HRL was amended in 2006. This ruling is far-reaching and provides some interesting holdings that plaintiff-side attorneys will embrace.

First, the supervisor, Toczek, made numerous comments disparaging Black NFL football players, including Colin Kaepernick, who engaged in public racial justice protests. When plaintiff told Toczek that these football players had a constitutional right to protest, Toczek said, "it's my right . . . if I want to like Black people." I am sure the NYPD claimed this comment was too vague to support a discrimination case, but the jury may find that Toczek was disparaging Black Americans. He also shared articles about Black NFL players committing crimes and described them as "perps." Toczek's comments lead the First Department to find that plaintiff suffered discrimination based on his race, as the lawsuit asserts this supervisor's subsequent actions against plaintiff were racially motivated. As the First Department says, Toczek's comment to plaintiff about his right whether to like Black people was facially discriminatory, "and is alone sufficient to defeat summary judgment." Under City HRL parlance, this was not an insubstantial comment or a "petty slight or trivial inconvenience." 

That brings us to an incident where Toczek had plaintiff accompany him to apprehend an arrestee who had previously assaulted police officers. Toczek told plaintiff, who is 6'7" and 260 pounds, that the arrestee will take one look at plaintiff and decline to fight, stating, "look how big you are." Plaintiff next suffered a serious physical injury in accompanying Toczek. Plaintiff sufficiently asserts a discrimination claim arising from this episode because "[a] reasonable juror could interpret Toczek's statements commending on plaintiff's physical appearance -- as compared with more slight white coworkers who were injured by the arrestee -- could have been racially-motivated and "communicated a decision-maker's explicit bias," and not a mere stray remark which would be nonactionable under the City HRL.

Moreover, "a reasonable juror could interpret Toczek's assertion that plaintiff's appearance, including his size, would deter violence from the arrestee, as an attempt to invoke the 'classic and common racist trope that Black men are inherently threatening or dangerous.'" The jury has to determine whether this was "coded racial language" or a permissible reference to plaintiff's size. That holding cites to a non-employment case, Matter of Putorti, in which a Justice of the Peace was disciplined for making a similar comment to a litigant who came before him. In that case, the New York Court of Appeals in turn cited to a law review article that addressed racial stereotypes, That makes this case the first employment discrimination case, to my knowledge, advancing this holding about racial stereotypes in the workplace through comments about the plaintiff's physical appearance.

Guns in public spaces, yes. Guns in public parks, no.

New York enacted a comprehensive gun control law in 2022, the same year the Supreme Court issued the Bruen ruling that made it much more difficult for the states to regulate guns, holding that any current gun regulations must have a historical analogue that was in place when the Bill of Rights was enacted in 1791, or when the Fourteenth Amendment was enacted in 1868. The '"historical analogue" framework requires judges to become historians as they try to determine what the gun laws looked like two centuries ago before comparing them to modern statutes. The entire process is uncertain, and some cases both uphold and strike down today's gun laws. This case is one of them.

The case is Christian v. James, issued on May 18. We have two challenges here. First, the plaintiffs, which include gun rights organizations, argue that a New York law prohibiting you from bringing a gun onto private property unless the property owner posts a conspicuous sign stating that guns are allowed. We call this the Private Property Provision. 

The plaintiffs argue that the Private Property Provision violates the Second Amendment as it applies to private property that is open to the public, like a gas station or grocery store. To win the case, the state has to show that a historical tradition supports this statute. But while the state presents a series of old laws from around the country that appear to prohibit weapons on private property without permission, the Court of Appeals holds these old laws are not sufficiently comparable to the New York law because the old laws were enacted for a different reason than the reasons motivating the modern New York law, that is, the old laws were in place to prohibit unauthorized hunting or drew from racial stereotypes. But barring unauthorized hunting and racial stereotyping is not what motivated New York to enact the gun control law in 2022. Rather, New York enacted the gun control law in 2022 to prevent school shootings and other gun disasters. A worthy goal, but there does not appear to be a historical analogue for such laws. This provision New York's gun law is therefore unconstitutional, as it does not overcome a principle goal of the Second Amendment: the right to self defense.

The other provision under challenge relates to public parks, a "sensitive location" under the gun control law where guns are disallowed. The state defends this provision by identifying more than 100 historical laws that are relevantly similar. The research in support of this argument, by the way, is impressive: the state finds laws from small to mid-size U.S. cities from the late 1800's and early 1900's. Where are they finding these old statutes? The research was time well-spent, as the Second Circuit (Bianco and Lee,  over Judge Menashi's dissent) finds these old laws proves a tradition of regulating firearms in crowded public forums. 

 

Abuse of process verdict is overturned post-trial

 This false arrest case went to trial in the Eastern District of New York. The plaintiff also asserted an abuse-of-process claim against the police. The case arose when plaintiff was arrested for trespass even thopugh he believed he had a legitimate lease to live in this house on Long Island; actually, he was fooled into thinking the lease was legitimate. When the police came, they threw him out of the house but did not arrest him for trespass until he called his lawyer, who told the police the arrest was illegitimate. The jury returned a verdict for the plaintiff on the abuse-of-process claim on the basis that the arrest was in retribution for plaintiff calling his lawyer. But the case was not over.

The case is Smith v. County of Nassau, a summary order issued on May 12. While the jury ruled in plaintiff's favor on the abuse-of-process claim, awarding him $251,000 in damages, it also said the police had probable cause to arrest him for trespass. So the trial court granted the County's post-trial motion for qualified immunity on the basis that the law is not clear whether probable cause is a full defense to an abuse-of-process claim. The Court of Appeals sustains the dismissal order, and the abuse-of-process verdict is gone for good. I briefed and argued the appeal.

Courts used to hold that false arrest and abuse-of-process claims are separate claims and that probable cause -- which is a full defense to a false arrest claim -- is not necessarily a full defense to an abuse-of-process claim, which requires a showing of malice in arresting someone, along with arresting someone for reasons having nothing to do with the legitimate criminal process, such as retribution. But then, over the years, the distinctions between these claims grew muddy. By 2016, the Second Circuit the law was no longer clear whether probable cause was not a defense to an abuse-of-process claim. That was the Mangano case. The law remains muddy such that the officers in this case are able to avoid liability because a police officer would not know that he cannot initiate legal proceedings against someone in a case like this.

Some trial courts in the Second Circuit got around the Mangano case by stating that probable cause is no defense to an abuse-of-process case if the malice element of the abuse-of-process claim does not solely turn on the lack of probable cause but instead some other illegitimate basis for the arrest, like retribution. We relied on those cases in trying to reinstate the verdict in this case. But after a spirited oral argument in January 2026, the Court of Appeals (Leval, Lynch and Sullivan) silently rejects that theory and stands firm in holding that the distinctions between false arrest and abuse-of-process claims are still too muddy to allow plaintiffs to sue the police when they have probable cause to make the arrest, even if the police also had ulterior motives to make the arrest.

Habeas petition denied where man shot and killed daughter's boyfriend

The plaintiff in this case challenges his criminal conviction on the ground that the state trial court did not properly apply the law governing when you are justified in causing someone's death. This case has a long road behind it, including an early favorable ruling from the Appellate Division, but in the end, the conviction is sustained and the plaintiff will have to serve his sentence for first-degree manslaughter,

The case is Brown v. James, issued on May 7. The facts are unpleasant. Plaintiff shot his daughter's boyfriend during an altercation in the lobby of his apartment building. The victim, Cabbagestalk, was also the father of plaintiff's grandchild. The daughter witnessed the shooting, which transpired after plaintiff and Cabbagestalk got into plaintiff's face during an argument and swung at plaintiff. When plaintiff pulled out his gun, Cabbagestalk said, "you going to pull a gun out, you better use it." When the gun was fired, plaintiff was leaning back and two feet from Cabbagestalk. The criminal court did not charge the jury on plaintiff's "justification" defense, asserted when the criminal defendant claims he had no choice but to defend himself with deadly force. Following the guilty verdict, plaintiff took up his appeals, ultimately losing in the New York Court of Appeals before filing this habeas petition in federal court.

Under New York law, the jury may consider your justification defense if the defendant reasonably believed he had to use deadly force. But you cannot have a justification charge at trial if you were the initial aggressor, i.e., if you started it all. An initial aggressor is someone who uses or threatens the imminent use of physical force. Under the case law, even when mere physical force is used against the defendant, the initial aggressor is someone who uses deadly force in the encounter. Even someone who threatens to use physical force may be the initial aggressor under state law.

After the First Department ruled in plaintiff's favor and said the criminal court should have allowed the jury to decide if he could invoke a justification defense, the New York Court of Appeals disagreed and reinstated the conviction, reasoning that plaintiff was the initial aggressor in initially drawing his gun, and further that there was no evidence that plaintiff withdrew after pulling out his gun.

The habeas petition in federal court would provide plaintiff a new trial despite the New York Court of Appeals' ruling. But plaintiff loses in the Second Circuit (Nardini, Cabranes and Kahn) because the state court ruling did not violate his due process rights in allegedly denying him the right jury charge. Habeas petitions must show the state court ruling was an unreasonable application of U.S. constitutional law. That's a tough standard to meet, but that's what Congress intended when it amended the habeas law in the 1990s. The Second Circuit finds the New York Court did not get it wrong in reviewing the evidentiary record as to who was the initial aggressor, as the record shows that plaintiff had his gun by his side during the argument. Displaying the gun was a threat to imminently use deadly force. As the New York Court of Appeals' analysis was not unreasonable, plaintiff is denied habeas relief in federal court.

Collective action against bakery is scaled back on jurisdictional grounds

This is a wage-and-hour claim in which the plaintiffs -- who distribute baked goods -- assert their employer denied proper overtime pay in violation of the Fair Labor Standards Act. The issue is whether the trial court had authority to force the employer to notify out-of-state bakery distributors of the potential collective action that plaintiffs want to pursue, which would allow the out-of-staters to opt-in to the case and therefore make it a larger and more lucrative collective action.

The case is Provenhcher v. Bimbo Foods, issued on May 4. While the district court said that Bimbo had to send the notices to distributers in New York and Connecticut, the Court of Appeals (Lynch, Lohier and Menashi) reverses in this rare interlocutory appeal, holding that the federal trial court does not have jurisdiction over out-of-state plaintiffs' FLSA claims against an out-of-state defendant, even where that defendant is properly before the court on similar claims advanced by in-state plaintiffs. Most circuits have already held as such, and the Second Circuit joins in these majority rulings.

The FLSA does not provide for nationwide service of process sufficient to confer personal jurisdiction over similar claims. The class action may only involve Vermont bakery distributors. The Supreme Court issued a ruling on this issue in Bristol Meyers Squibb v. Superior Court of California, 582 U.S. 255 (2017), though that case asserted a product liability claim against the drug company involving potential class plaintiffs from states other than California. The Supreme Court in that case said the California court lacked personal jurisdiction over the out-of-state plaintiffs' claims. 

In this case involving bakery drivers, the record does not show that Bimbo's Connecticut or New York distributors suffered FLSA violations arising from Bimbo's relationship with Vermont. The Bristol-Meyers holding is fatal to plaintiffs' argument that Bimbo's use of the same distribution protocol is similar all three states, and the fact that Bristol-Meyers concerned the Fourteenth Amendment and not the Fifth Amendment, asserted here, makes no difference. In sum, the Court of Appeals holds, "before conditionally certifying an FLSA collective action and authorizing notification of potential plaintiffs who may opt in, the district court must ensure personal jurisdiction over the defendant with regard to the claims of those to be notified." This ruling thus scales back the scope of the collective action.

Landlord's challenge to property rights verdict fails

This case went to trial in the Southern District of New York over a landlord's claim that the town's law limiting the number of properties a residential landlord can own violated the Constitution. The jury ruled against the plaintiff-landlord, and the Court of Appeals affirms.

The case is Summer Crest LLC v. Town of Monroe, a summary order issued on April 21. The Town of Monroe, in Orange County, passed law prohibiting any person or entity from owning more than three residential rental properties in the town. That makes this a property rights case under the Fourteenth Amendment. It is unclear how this case reached the jury, as you'd think a case like this might be resolved as a matter of law prior to trial. But the jury was tasked with determining if the town law caused plaintiffs any damages. The jury said no, hence this appeal.

Plaintiff argue there was something wrong with the verdict sheet, that it asked the jury to decide whether the town law was "the" proximate cause as opposed to "a" proximate cause. Plaintiffs argue that "a" proximate cause wrongly implied that its injuries could have only one proximate cause when they could have had more than one. That distinction can in fact make a difference at trial. The problem here is that plaintiffs did not object to the verdict form before it reached the jury. That means the plaintiff cannot get a new trial unless this error was "fundamental," or "so serious and flagrant that it goes to the very integrity of the trial." That is a tall order, and it rarely works on appeal.

Plaintiffs note that some New York cases support their position that "the" proximate cause is the wrong test. That may be, but we are not looking at a fundamental error, because the jury charge properly instructed the jury on the causation element. The jury charge used "a" proximate cause in laying out the legal test for the jury to follow. Under the charge, the jury was told that "a proximate cause" is "an act or omission" that "was a substantial factor in bringing about or actually causing the harm." The Court of Appeals (Sullivan, Chin and Sack) notes the charge repeatedly mentioned "a" proximate cause. Especially since plaintiffs did not object to the verdict sheet, there was no fundamental error in charging the jury. 

2d Circuit holds firm on Jean Carroll's sexual assault and defamation verdict against Trump

The sexual assault case that E. Jean Carroll brought against Donald Trump is still the subject of court activity, long after the jury found in Carroll's civil suit that Trump had assaulted her in a department store dressing room. But for now, proceedings have ended in the Second Circuit, which declines to reconsider its prior ruling that upheld the verdict.

The case is Carroll v. Trump, issued on April 29. This case went to trial before Judge Kaplan in 2024. The jury said that Trump had sexually assaulted Carroll and then defamed her when she publicly announced the incident years after it happened. The jury awarded Carroll millions of dollars in damages. After the Second Circuit upheld the verdict last year, Trump's lawyers filed a motion for rehearing and en banc review. The latter procedure would have the the entire Court, and not just a three-judge panel, consider the case. The Second Circuit has denied that motion.

The Second Circuit rarely grants motions to rehear the case or to convene en banc. That's the culture of this Court. If an outcome is good enough for the three-judge panel, then it's good enough for the Court as a whole. But lawyers frequently seek rehearing upon losing the appeal, because we always think our case is good enough for a second bite at the apple. But this case shows that even a case against the President, upon a civil judgment involving sexual assault and defamation, will not win you a new appeal. If a case like this is not going to be reheard by the Court of Appeals, no case is going to be good enough.

Most of the judges agreed not to re-hear the case; that agreement was shared among judges appointed by Presidents of both parties, including Trump. Judge Menashi writes an extensive dissent from the order denying en banc review. However, writing separately in explaining why en banc review is not appropriate, Judge Chin notes that the Court had previously denied this relief on multiple occasions in this case, and that the primary issues raised in the en banc petition this time around -- that Trump was acting within the scope of his office and employment as President when he made the defamatory statements and may therefore invoke certain protections from civil suit, and that he was also immune from suit under recent Supreme Court authority -- were both waived by Trump during this litigation. The en banc petition also challenges the $65 million punitive damages award. Judge Chin writes that, in light of the nature of the case and Carroll's injuries from the assault and defamation -- the Second Circuit has already held this award was not grossly excessive to warrant a reduction.