You have a First Amendment right to videotape the outside of a police building

The Court of Appeals holds for the first time that you have a First Amendment right to film the exterior of the local police station. But the plaintiff, who was arrested after he resisted police authority when they approached him about the making the video, cannot sue the police on qualified immunity grounds.

The case is Massimino v. Benoit, issued on August 17. Plaintiff is a First Amendment activist who was detained and arrested while he recorded the exterior of the Waterbury Police Department building. While standing on a public sidewalk, plaintiff was not filming anything in particular, such as someone being arrested or police activity taking place outside the building. He told the police he was a journalist getting content for a story, and the recording lasted 6.5 minutes. According to the court ruling, plaintiff is a "First Amendment auditing hobbyist." The police wondered if plaintiff was planning an attack on the building.

This may surprise you, but the Second Circuit had not yet squarely held that the First Amendment protects the right to make such a video recording. Most of the other Courts of Appeal have held the First Amendment does protect such activity. The Second Circuit adopts their reasoning on three grounds: (1) the First Amendment protects the creation of speech, not just the speech itself, (2) speech on matters of public concern and governmental affairs "lies at the heartland of the First Amendment's protections," and (3) "the First Amendment protects the public's right to gather and access information about the government." As the majority (Perez and Merriam) holds, "The right to record law enforcement activity in public fits squarely within these three principles." The Court further holds these principles apply when you are filming the outside of a police station without gaining access to confidential areas, instead recording what is plainly visible to anyone else.

This holding -- while helpful for other First Amendment plaintiffs -- provides no relief to plaintiff, because this holding was not in place the day he was arrested. That means the law was not clearly-established at the time of his arrest in 2018. For the law to be clearly established, you need on-point rulings from the Supreme Court or the Second Circuit, or at least a robust consensus from other courts of appeal. We don't have that here. The Court of Appeals reasons: 

At the time of Massimino’s arrest, a robust consensus of our sister circuits had recognized a First Amendment right to record law enforcement activity in public, including one that considered the right to record the publicly visible areas of a police station. Despite our holding here that the First Amendment applies with equal force to that specific conduct, we do not think that conclusion would have been obvious to every reasonable officer in this circuit in 2018. Although Massimino recorded some areas where the public could not enter, what matters for purposes of the right at issue is that those areas were in public view. A reasonable officer in Benoit and Laone’s shoes may not have appreciated that distinction at the time of the incident, particularly in light of sensible safety concerns.

Qualified immunity is a theoretical concept: were the police on constructive notice that they were violating clearly-established rights? I doubt most police officers are tracking federal case law, but their supervisors might be, or their attoney-advisors may give periodic training on the state of the law. If the case law was not crystal-clear at the time of the arrest, then you can't sue the police for damages.

Judge Raggi agrees that qualified immunity applies in this case, but she disagrees with the majority's decision to first hold that the public has a clear First Amendment right to film the outside of a police station. Federal courts have the option to first clarify the constitutional right even if they go on to hold the law was not clearly-established at the time of the incident. They do not always exercise the first option, but the majority did so in this case. That means the next individual who does what the plaintiff did in this case -- so long as they engaged in that activity following release of this ruling -- cannot suffer an arrest.  

 

Church Autonomy doctrine bars priest from bringing defamation claim against former employer

The Second Circuit has applied the Church Autonomy doctrine for the first time in holding a jury cannot resolve whether plaintiff, a priest, has a legitimate defamation claim against his former employer. This is a significant decision because the Second Circuit holds the First Amendment protects not only the church's decision to select, supervise, and remove its ministers, but also the communications that are inseparable from those decisions.

The case is Belya v. Kapral, issued on August 18. Plaintiff was priest in the Russian Orthodox Church Outside of Russia (ROCOR). He says church leaders told him in 2018 that he had been elected a bishop. He also says he received letters from church officials confirming the election and seeking approval from the Moscow Patriarchate. But ROCOR says the election never happened. After the Moscow Patriarchate announced in August 2019 that it had approved Belya's election, ROCOR officials investigated. They concluded that Belya had gotten letters to Moscow that purported to come from church leaders. The officials accused Belya of forging them. A September 2019 letter to ROCOR's leadership said that the purported election "never took place" and questioned the authenticity of the documents. Belya was subsequently suspended and, in February 2020, defrocked.

Belya sued for defamation. The district court granted summary judgment to ROCOR. In affirming dismissal, the Second Circuit (Lynch, Lohier and Menashi) held the First Amendment protects a church's independence in matters of faith, doctrine, and closely related internal governance. While churches can still be sued when the court can resolve a dispute using ordinary, neutral principles of law, in this case, deciding whether ROCOR officials defamed Belya would require a jury to determine how ROCOR selects its bishops, what its internal procedures require, whether those procedures were followed, and whether the officials reasonably believed that Belya had never been elected.

The Church Autonomy doctrine is related to the Ministerial Exception, which bars courts from second-guessing hiring decisions by religious entities if the plaintiff was a "minister" as defined in Supreme Court case law; actual ministers are not the only ones prohibited from bringing these cases. Anyone who takes on some religious role in the workplace, like a teacher in a Catholic school, runs up against the Ministerial Exception. 

As defamation under New York law requires proof that the defendant acted at least negligently, the jury would have to decide whether ROCOR officials acted reasonably in concluding that the letters were not authentic. According to the Second Circuit, the jury would have to decide what a reasonable ROCOR clergyman would have believed, given ROCOR's rules and practices, about the events surrounding Belya's purported election. That would require a secular court to pass judgment on the church's internal governance.

The Second Circuit emphasized that this does not mean churches have immunity from defamation claims. A church can be sued when a dispute can be resolved by applying ordinary secular law without requiring the court to second-guess religious doctrine or internal governance. However, when a defamation claim arises out of a church's investigation and discipline of a minister, and determining whether the allegedly defamatory statements are true or reasonably made requires a jury to decide how the church governs itself, the First Amendment bars that inquiry.

Belya's status as a priest made the connection obvious because ROCOR was investigating his conduct, communicating with its own leadership about that investigation, and ultimately removing him from the clergy.

Court of Appeals strikes down SOX whistleblowing claim

The Court of Appeals has rejected a Sarbanes-Oxley whistleblower retaliation case, holding that the plaintiff did not bring his claim within the 180-day deadline under the statute. The Court also issues a separate holding that the statute of limitations begins to run when plaintiff has reason to know that management's continued refusal to rehire the terminated plaintiff following a layoff means he will never be rehired again.

The case is Mehrotra v. U.S. Department of Labor, issued on August 11, nearly two years after oral argument. This is a petition for review following an adverse ruling from the U.S. Department of Labor. Plaintiff, a project manager in GE’s Power division, filed two internal complaints raising compliance concerns in October 2018. Several months later, GE told him he would be laid off in June 2019 due to a reduction-in-force. Post-layoff, defendant allowed him to apply for other positions within the company, but he was rejected for dozens of them, more than 50 positions. He claimed these rejections were also retaliatory. Plaintiff filed his SOX complaint with OSHA on December 17, 2020, alleging that GE had blacklisted him, terminated him, denied him benefits, failed to rehire and promote him, all in retaliation for his internal complaints. 

Under the 180-deadline under SOX, plaintiff's claim is untimely. Defendant told plaintiff about the layoff on April 29, 2019. Plaintiff had until October 2019 to file his SOX complaint, but he did not do so until December 2020. The claim was untimely.

The real story here is plaintiff's argument that defendant's refusal to hire him post-layoff was also retaliatory. But the Court of Appeals (Sullivan, Park and Robinson [dissenting]) holds that claim is also untimely. Plaintiff argued that each time GE rejected one of his applications, a new retaliatory act occurred. Some of those applications were rejected after June 20, 2020, which would put them within 180 days of his December 17 OSHA filing. But the majority holds that the alleged “blacklisting” was the underlying retaliatory action. By March 16, 2020, Mehrotra had applied unsuccessfully for roughly 50 positions and had actually complained to GE that he was being blacklisted. At that point, the court said, he knew or should have known that GE was refusing to rehire him. This means the later unsuccessful applications could not revive the expired claims. 

Over Judge Robinson's dissent, the majority writes, "where the alleged adverse action is a blacklisting or companywide refusal to rehire, an employee is unlikely to receive definitive and unequivocal notice of the adverse action taken against him. In such cases, the claim accrues when it 'was apparent or should have been apparent that a complainant’s former employer was refusing to rehire [him].'” In other words, it should have been clear to the plaintiff that GE was not going to rehire him, that plaintiff's realization triggered the statute of limitations. The Court adds, "Based on the record before them, the [Administrative Law Judge] and [Administrative Review Board] properly concluded that Mehrotra knew or should have known of GE’s refusal to rehire him by March 16, 2020 – the date on which he filed an internal complaint with GE after unsuccessfully applying to fifty open positions." 

In dissent, Judge Robinson writes, "A cause of action for retaliation requires an adverse action and accrues when the employee learns of it, and successive refusals to rehire are discrete events." In other words, "An unexpressed intent not to hire is not an adverse action." Judge Robinson adds,

A retaliatory, uncommunicated, and unexercised intent not to rehire someone is a proverbial tree falling in the woods: nobody hears it. Evidence of such an intent may establish the retaliatory motive for a refusal to hire, but where that intent has not been communicated to the employee, some action, such as passing over the employee in response to an actual application for a position, is an essential element of a cause of action for retaliation under SOX. Until the uncommunicated and unexercised intent leads to an actual adverse action, no cause of action arises under SOX, and no limitations clock starts ticking.

Plaintiff argued that the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan (2006) saves his claim. In Morgan, the Court held that each discrete discriminatory act starts its own limitations clock. Morgan holds that refusal to hire is a discrete act. This is a decent argument. But the majority instead relies on another Supreme Court case, Delaware State College v. Ricks (1981), reasoning that a later consequence of an earlier discriminatory decision doesn't restart the limitations period. The later applications were merely consequences of the earlier blacklisting. As for the continuing violation argument under Morgan, that doctrine generally does not apply to a series of discrete employment actions. Otherwise, the court reasoned, an employee could keep a stale claim alive simply by repeatedly applying for jobs and getting rejected.

Plaintiff may challenge her termination under Due Process Clause

This appeal raises a complex issue relating to res judicata. Lawyers know about res judicata; the general public not so much. But this doctrine -- which prevents you from bringing the same lawsuit in different courts -- is important when it happens to your case. 

The case is Rosenthal v. Roosevelt Island Operation Corp., issued on August 10. This dispute has been going on for six years. Plaintiff was the President and CEO of the Roosevelt Island Operating Corporation, which governs Roosevelt Island. When she was fired, defendants claimed she had made racially and sexually offensive remarks, an allegation that plaintiff denied, prompting her to file an Article 78 petition. In those expedited proceedings, the parties are usually denied discovery and the state court normally resolves the case on the papers, including affidavits and exhibits, determining whether the challenged governmental action was arbitrary and irrational. The judge dismissed the Article 78 petition, holding that the "determination to terminate petitioner clearly was not irrational" given the comments that were cited as justification for her termination. The state court said the proper forum to challenge the factual basis for plaintiff's termination is a plenary action in state court, where you can take depositions and pursue other discovery.

Plaintiff thus filed suit in state court, which also ruled against her on the motion to dismiss relating to her discrimination claims, finding the Article 78 dismissal was a final judgment on the merits. But State Supreme Court only dismissed plaintiff's Section 1983 claims without prejudice, stating the claims should have been filed in the Court of Claims, which hears cases against the State of New York. Or, Supreme Court said, plaintiff could refile these claims against the defendants in their individual capacities, which is what she did in proceeding to federal court on a liberty interest claim arising from the Due Process Clause of the Fourteenth Amendment. 

But the federal court dismissed the Section 1983 claim on res judicata grounds. Under res judicata, you cannot relitigate the same unsuccessful claim in a different court, even if that claim was not asserted in the first lawsuit, so long as it relates to the claims that were actually dismissed. The reason the Court of Appeals reinstates this case is that the state court only dismissed plaintiff's Section 1983 claim without prejudice, which means you can file the same claim again in a different court. Dismissals without prejudice are not "a final determination on the merits." 

This is a new issue for the Court of Appeals (Sack, Perez and Preska [D.J.]), which believes the state's highest court would endorse this reasoning on what is traditionally a state law issue. The Second Circuit states:

We recognize that our own precedent has not squarely addressed such a scenario. In our view, however, the New York Court of Appeals has resolved precisely this conundrum by adopting the relevant Restatement exception permitting a plaintiff to refile specific claims—notwithstanding a final judgment on the merits as to other claims arising from the same transaction—where “[t]he court in the first action has expressly reserved the plaintiff’s right to maintain the second action.”  

. . .  

In other words, while a final judgment on the merits normally extinguishes all other claims arising from the same transaction, a concurrent dismissal without prejudice for some claims preserves a plaintiff’s ability to refile those specific claims in a second action. That is precisely what the Plenary Judgment did by dismissing Rosenthal’s § 1983 claim without prejudice and inviting Rosenthal to refile that specific claim in a different court. 

Nor does the unsuccessful Article 78 case present a res judicata problem. That dismissal only said that plaintiff could not prove her termination was arbitrary and capricious. But the Article 78 court did say the right proceeding for plaintiff was a plenary action with discovery in a different court. The Second Circuit states, "Even if the Article 78 proceeding were considered to have impliedly adjudicated Rosenthal’s discrimination claims, as the New York State Supreme Court later concluded and the Appellate Division since agreed, it is settled law that a 'judgment in a ‘pure’ Article 78 proceeding,' such as this one, 'does not preclude, under the doctrine of res judicata, a later section 1983 damages claim based on the same set of facts.'”

Bottom line: the plaintiff's Section 1983 due process claim may proceed in federal court even though her related claims were twice dismissed in state court. 

Bivens claim survives appellate review

The greatest loophole in constitutional law is that there is no statute that allows you to sue federal officials for a constitutional violation. If you want to sue state and local officials, you can invoke 42 U.S.C. 1983, but there is no Section 1983 claim against federal officials, and the Supreme Court has recognized such claims against federal defendants on three occasions and has repeatedly said it will not recognize new claims. But this plaintiff does have a claim against federal prison defendants because her case is close enough to one of the cases recognized by the Supreme Court as legitimate.

The case is Cicchiello v. Warden, Danbury Correctional Facility, a summary order issued on August 11. Plaintiff is an inmate a federal correctional institution. In her Eighth Amendment claim, she asserts that, as a 73 year-old inmate with a known heart condition, the 100 degree heat inside the jail poses a risk to her health. The case was dismissed because it does not fall within the three kinds of cases that the Supreme Court recognizes as legitimate against federal defendants.

In 1971, the Supreme Court ruled in the Bivens case that, even without a federal counterpart to Section 1983, the Constitutional implies a constitutional claim for civil rights victims suing federal defendants if there are no other remedies available to the plaintiff, such as an in-house administrative remedy, even if the administrative remedy will not get you the damages that a federal lawsuit would, and even if the administrative remedy does not allow for discovery and other procedural protections afforded to federal litigants. One of these days -- and I have been predicting this for years -- the Supreme Court is going to do away with Bivens claims altogether and leave it to Congress to enact a Section 1983 statute for claims against federal defendants. But until that happens, some Bivens claims will survive dismissal. This is one of them.

The Second Circuit (Menashi, Merriam and Cronan [D.J.]) says that plaintiff's case resembles Carlson v. Green, 446 U.S. 14 (1980, where the federal inmate asserted a constitutional claim that the jail was deliberately indifferent to serious medical needs. If plaintiff is able to amend her lawsuit on remand to assert that the jail knew she had a serious medical condition, then this lawsuit will be among the rare Bivens cases that will survive dismissal.  

To give you a sense how hard it is to bring a Bivens claim these days, plaintiff also claims that defendants subjected her to an unlawful strip search. There is no such claim in the Supreme Court arsenal that resembles this one. While one of the three positive Bivens claims in the Supreme Court said a plaintiff could sue federal defendants for a home search in violation of the Fourth Amendment, that case is not this one, as this one took place inside a federal prison, and everyone knows that jail cases are different than all other civil rights cases because courts defer to the expertise of prison officials. The strip search claim is dismissed for good. 

State and local law makes it illegal to videotape inside police station houses

The Second Circuit last year asked the New York Court of Appeals to weigh in on whether you have a right to record video inside the publicly accessible lobbies of police station houses. The New York Court of Appeals answered that question in the negative, and that ruling now allows the Second Circuit to reject a claim brought by public interest organizations.

The case is Reyes v. City of New York, issued on August 6. Videotaping and recording police activity is one way that civil rights organizations try to keep tabs on law enforcement. But, while everyone has video recording equipment in their pocket these days, that does not mean the law is there for them. It is not.

As I summarized this case back when it first reached the Second Circuit, "The plaintiff in this case sued the City of New York, challenging its policy against video-recording in police facilities, including station house lobbies. He posts his interactions with the police on YouTube, but these videos have gotten him arrested. He claims these arrests violate the First Amendment." Hence plaintiff's challenge to the rules prohibiting such videotaping.

The district court granted plaintiffs a preliminary injunction under state and local law, determining plaintiffs were likely to win their challenge to a NYPD policy prohibiting such video recording. Since the case raised an esoteric issue under state law, the Second Circuit asked the New York Court of Appeals to issue a ruling. The adverse ruling from New York's highest court requires the Second Circuit (Raggi, Kearse and Kahn) to vacate the preliminary injunction. 

Door Dash wins free speech case against New York City

New York City enacted a law requiring that third-party delivery platforms, like Door Dash, share customer information with the restaurants whose food they are delivering. Door Dash challenged this requirement as a First Amendment violation, under the coerced speech principle. Door Dash wins the case.

The case is Door Dash, Inc. v. City of New York, issued on August 5. Door Dash gets all the customer information when someone requests a food delivery. The restaurant only gets the customer's first name, last initial, and the order contents, i.e., what food the customer ordered. New York City passed a law in 2021 requiring that Door Dash share the customer information with the restaurants because customer data is "one of the most important tools restaurants can use to develop marketing strategies and customer relations." While Door Dash got all the customer details, the restaurants were unable to communicate directly with those customers as part of their business strategy. At least that was the logic behind the law, which amounted to a gift to the restaurant industry.

The First Amendment does not just protect street protesters and artists. It also protects companies and bars coerced speech. This case involves coerced speech, because the NYC law forced Door Dash to share certain business information with the restaurants. 

Under the case law, a state "may compel a commercial speaker to disclose (1) purely factual and uncontroversial information (2) about the terms under which his services will be available, so long as the disclosure is (3) reasonably related to the State's interest and (4) not unjustified or unduly burdensome." Not the clearest guidelines, but in sum, it means the government can defend such coerced speech in a commercial context only if the speech is "about the goods or services the speaker may offer." In practice, it means that laws requiring restaurants to disclose calorie counts and employers to issue anti-discrimination notices are legal. The Court of Appeals (Wesley, Carney and Park) further reasons:

The disclosure here—customers’ personal information—is not information “about” Marketplace. Information about Marketplace might, for instance, describe the commissions restaurants pay, how the Platforms rank and display restaurants, or the grounds on which they may deactivate a restaurant’s account. See, e.g., Uber Techs., Inc. v. City of Seattle, 168 F.4th 1202, 1216–17 (9th Cir. 2026) (holding, in the alternative, that an ordinance requiring third-party platforms to inform their couriers of the grounds for account deactivation satisfied Zauderer because the notice “concerns only the service provided”). The Customer Data Law, by contrast, compels the disclosure of each customer’s name, number, email address, delivery address, and order contents. § 20-563.7. Those are facts about third parties who use Marketplace, not about Marketplace itself.