Fox News wins sexual harassment appeal

This lawsuit against Fox News alleges that a Fox News personality, Ed Henry, raped and sexually harassed the plaintiff, who worked there. The district court dismissed the case, and the Court of Appeals affirms.

The case is Eckhart v. Fox News, a summary order issued on April 24. Plaintiff sues under the New York City Human Rights Law, which requires proof that the employer knew or should have known about the defendant's offensive behavior but did nothing to remedy it. If that is the case, then the employer (and its deep pockets) are on the hook. But, affirming the district court ruling, the Court of Appeals holds that plaintiff cannot meet her burden of proof.

As the Second Circuit (Carney, Robinson and Perez) sees it, plaintiff "undisputedly never told anyone at Fox about any of her sexual encounters with Henry while she was an employee. And it is undisputed that Henry never told any Fox employees about their encounters until he was interviewed after Eckhart lodged her sexual harassment complaint." Instead, Fox News learned about these allegations after plaintiff was fired, when her lawyer reported it to Fox which, that day, hired outside counsel to investigate and interview Henry. Less than a week later, after outside counsel reported their findings to Fox, Henry was fired the next day.

Plaintiff can also win the case if a jury may find that Fox News should have known about Henry's sexual harassment. The evidence is not there, the Second Circuit holds, stating:

Though Fox later learned of Henry’s other extramarital affairs and workplace conduct towards women, the record evidence shows that the only fact known to Fox prior to the February 2017 rape was that Henry had a consensual extramarital affair with a “stripper in Las Vegas.” Following that revelation, Fox suspended Henry, took him off the air for several months, reduced his annual pay, and removed him from the role of Chief White House Correspondent. While he was suspended, Henry went to a sexual rehabilitation therapy and treatment program suggested by Fox. 

Plaintiff's response to this holding is as follows: Fox must have known about Henry's improper sexual workplace conduct that later surfaced because it would be implausible that Fox News would send him to sex addiction therapy on the basis of a single consensual affair. There is some logic to this argument, and I wonder if a jury might buy it. But the Court of Appeals holds this argument is speculative and is not rooted in any permissible inferences.

New York strikes down Long Island school districts' transgender bathroom policies

A school district on Long Island is litigating the culture wars. A few years ago, it challenged New York's directive that districts dispense with Native American mascots. This time around, the district challenges New York's directive that schools allow transgender students to use the bathrooms that align with their gender identity. This challenge fails, and the State Department of Education rules in favor of transgender students.

The case is Jane and John Doe v. Board of Education of Massapequa Union Free School District, decided by the State Education Department on April 20. The decision also addresses the Locust Valley School District's identical bathroom policy. Disclosure: I graduated from this district many years ago and helped litigate the Bostock ruling that went before the Supreme Court. I have nothing to do with this case.

The Doe's are the parents of a transgender student. They challenge a school board resolution stating that "all students shall be required to use facilities -- including restrooms and locker rooms -- that correspond with the student's sex as defined under Title IX and federal law." Title IX is the law that prohibits sex discrimination in schools.While the Supreme Court in Bostock v. Clayton County (2020) held that discrimination against transgender status violates Title VII -- the employment discrimination law -- the school district here must be interpreting Title IX to allow for this exclusion from the bathroom. "As a result, the student was no longer permitted to use the locker room or restroom that aligned with her gender identity." Hence, this appeal to the Commissioner of Education. (Similar litigation, initiated by the Massapequa school district, was filed in federal court last year, and that case is pending).

What dooms the district's position in this case is that it adopted the resolution without providing the public with advance notice during regular meetings of the board. This procedure, baked into the district's own written procedure, allows the public to provide input into the resolution. While the district argues that the resolution was not a change in policy, the Commission is not buying that argument, noting that it styled the policy itself as an amendment to district policy. 

Apart from that procedural violation, the Commissioner rejects the policies on the merits. The Commissioner notes that school district resolutions that conflict with state regulations are void. That's the case here. The New York Human Rights Law and related sex discrimination statutes bar school districts from discriminating against students based on their actual or perceived sex and gender identity or expression. State law further states that these provisions are violated when districts deny access to school facilities such as bathrooms, changing rooms, and locker rooms based on a student's actual or perceived gender, which includes gender identity or expression. Under these principles, the bathroom policies are stricken.

The districts have another argument: that they have made gender-neutral bathrooms available for transgender students. Sort of like a "separate but equal." But, the Commissioner holds, the Human Rights Law and related state laws do not provide for a "reasonable accommodation" exception. "While students may elect to use gender-neutral facilities, no student may be compelled to do so because of their gender identity. Therefore, the offering of such facilities does not excuse [the districts'] discriminatory resolutions."

In the end, the Commissioner writes, the policies here "targeted a discrete group of people who have become increasingly vilified by irresponsible adults." As the board members in these two districts "disregard[ed] State law to deprive students of the dignity to which they are entitled," they did not live up to their oaths of office, holds the Commissioner.

 

 

$1 verdict on excessive force claim is sustained on appeal

This false arrest case arises from a stolen jacket. The victim told the police that plaintiff was the culprit. The road to federal trial was complicated; while the criminal court found plaintiff guilty, that conviction was overturned on appeal. Plaintiff proceeded with his excessive force claim at trial after the district court dismissed the malicious prosecution claim on summary judgment. Plaintiff, however, only recovered $1 on his excessive force claim. This appeal seeks to reinstate the malicious prosecution claim and a retrial on the excessive force claim.

The case is Banyan v. Sikorski, a summary order issued on April 21. The most interesting issue relates to the excessive force claim. The jury found the police used excessive force in arresting plaintiff, but it only awarded him a dollar. Not much of a victory. Hence, this appeal. The argument is that the trial court should not have allowed the jury to see the post-arrest video, where plaintiff, now at the police station, was screaming at the police and acting violently. This video could not have endeared plaintiff to the jury; plaintiff argued as such on appeal, stating that the video "invited jurors to find against Banyan because they disapproved of his arguably threatening, belligerent behavior at the precinct."

Plaintiff argues that the video was improper "propensity" evidence intended to show that plaintiff is prone to outbursts and must have resisted the arrest, causing the police to use excessive force. But the Court of Appeals (Wesley, Park and Coombe [D.J.]) holds that the video was admissible to show plaintiff's "condition after the incident," relevant to assess the impact of any force that was used on him and any injuries that he suffered. This ruling was not an abuse of discretion, the Court of Appeals holds. Plaintiff further argues the video was inadmissible because its relevant was greatly outweighed by its prejudicial effect on the jury. You can make such an argument on the basis that the harm flowing from the evidence outweighs the good. But the trial court instructed the jury that the video was only relevant for the purpose noted above, and we presume that juries follow the trial court's instructions on how to evaluate evidence. This means the one dollar verdict stands, as plaintiff is not entitled to a new trial.

On the malicious prosecution claims, they were properly dismissed on summary judgment, the Second Circuit holds, because the grand jury indicted him, creating a presumption that the jury had probable cause to make the arrest for assaulting the police and resisting arrest. 

If you want to use a taser, join the police department

These plaintiffs challenge a New York City law that makes it illegal to possess electronic weapons, such as stun guns and tasers. Cases like this are happening because the Supreme Court held in 2008 that the Second Amendment provides for an individual right of gun ownership, though the Court in 2022 clarified that ruling in stating that some gun laws are legal if they regulate certain weapons in a manner resembling the gun laws when the Constitution was enacted in the eighteenth century. 

The case is Calce v. Tisch, a summary order issued on April 13. The Second Amendment Foundation is among the plaintiffs. This case actually implicates a different component of the 2022 ruling, known as the Bruen case. Our issue is whether the weapons in issue are in "common use today for self-defense and whether the conduct at issue implicates the right to armed self-defense." This may be an easy issue for run o' the mill guns and other firearms, but what about electronic weapons and tasers? Are they in common use today? The plaintiffs have not proven their case.

The Court of Appeals (Parker, Merriam and Lohier) says plaintiffs do not have a case. On the summary judgment motion, they were supposed to introduce admissible evidence to show these weapons are in common use. But, says the Court of Appeals, "Instead of introducing the required evidence before the trial court, Plaintiffs cited a slew of non-binding cases and a concurrence by Justice Alito, which cites a Michigan Court of Appeals decision relying on a 2009 law review article, for the proposition that 'stun guns are common.'" 

But, the Second Circuit states, "for the first time on appeal, Plaintiffs cite additional materials that were not introduced below, including newspaper articles from the 1980s, a New York Post article, and a Congressional Research Service Report that references a large increase in civilian purchases of stun guns from 2019 to 2020. They failed to introduce these materials in the district court and we decline to consider them now. The materials they do cite are miscellaneous bits and pieces insufficient to establish that stun guns and tasers are in common use for lawful purposes."

Contract-killer's confession is admissible at trial

Contract-killing does not just happen in Hollywood. We have real-life contract killers, too. In this case, the defendant was convicted of a murder-for-hire but challenges his conviction on the basis that he made incriminating comments in violation of his Miranda rights. The Court of Appeals does not see it that way, and the conviction stands.

The case is United States v. Pence, issued on April 10. After Plaintiff and his wife began caring for foster children, they took in five children from another couple. For a while the families got a long, but the relationship deteriorated when the family wanted their children back. According to the Court of Appeals Cabranes, Chin and Robinson), Pence began communicating with a hitman and arranged for the family's killing so that it would look like an accident. The killing would cost approximately $16,000.

After tracing the internet contacts with the contract killers to the Pence household, the FBI got a search warrant for the Pence home. When the FBI arrived, Pence agreed to speak with them, though the FBI allowed Pence to walk around the house for a moment to grab his shoes and he walked himself to the FBI vehicle, where a recording device captured Pence confessed to the murder-for-hire. At the time of the confession, Pence was told he was not under arrest. The officers then read Pence his Miranda rights. 

Pence argues that his confession was unlawful because he was officially in police custody but made incriminating statements prior to the Miranda rights were administered. If so, then the confession is tainted and the FBI will have to prove Pence's involvement in the attempted murder through some other way. But that will not be necessary, the  Court of Appeals holds, because Pence was not really in police custody when he spilled the beans. We analyze this issue through a totality of the circumstances test, considering in part whether a reasonable person would have felt free to leave when the police were present.

On this record, Pence was not in custody because a reasonable person in his position would not have believed he was not free to leave, or that he was at the mercy of the FBI agents. He entered the FBI vehicle under his own free will, outside his home while his family went about their day. He was not handcuffed and agreed to speak with the agents, who did not point their guns at him. No one yelled at Pence. While the agents outnumbered Pence 2:1 and they questioned him for 1.5 hours, that is not enough to show he did not reasonably believe he could not walk away. While the agents did present Pence with some evidence of his guilt, and that factor certainly counts for something in this equation, that factor is not dispositive, as the agents did not threaten to arrest him. Nor is it dispositive that the agents came to the house with equipment and weapons, making Pence feel like "Armageddon" was at the front door. In the end, the Court of Appeals says, Pence confessed to the crime after the FBI told him he was not under arrest and was under no obligation to speak with them.

Rolling Stone not liable for allegedly defamatory statements

This case is a good example of how difficult it is to win a defamation case. The plaintiff sued Rolling Stone magazine for publishing an article that said he was prone to fits of rage, tried to start a fire in the family home, gave someone "a joint laced with a number of drugs," and encouraged someone to drive his vehicle into a crowd of people. None of these statements placed plaintiff in a positive light. But none of them are defamatory, either, according to the Court of Appeals.

The case is McGillvary v. Rolling Stone, LLC, a summary order issued on April 8. the article was called "Dark Tales:  A hatchet wielding hitchhiker went viral. Then he killed someone." The article "described [plaintiff's] involvement in thwarting a high-profile attack in 2013 (for which he was cleared of wrongdoing) and in committing a later unrelated murder for which he was convicted and is now serving a fifty-seven year sentence." 

Publications have a ton of defenses to any defamation claim. The truth is one defense. Another defense is that the objectionable statement is protected opinion. Or that the statement, in context, is not really defamatory. Or that the statement was not made with actual malice or reckless disregard as to falsity. 

The "fits of rage" statement is opinion, not presented as a factual statement, as the article "signaled to readers that it was relaying the opinions of those who knew McGillvary, not conveying a historical fact about McGillvary's personality or behavior." 

Another statement in the article said that plaintiff "tried to start a fire in the family home and was subsequently sent into foster care at the age of thirteen." But plaintiff admitted that he tried to light a sleeping bag on fire when he was four years old. While plaintiff claims the fire-starter statement suggests he tried to burn down the house at 13 years of age, "the 'fire-starter' statement contains no such temporal limitation" and "merely states that he 'tried to start a fire in the family home and was subsequently sent into foster care at the age of 13." In context, the fire-starter statement does not suggest he tried to start a fire in the family home when he was 13. 

What about the "laced-joint" and "ghosts" statements? They are not defamatory, either. Plaintiff admitted in this case that he is a "limited-purpose public figure with respect to his role" in the hitchhiking incident in which a motorist drove into a group of bystanders. The article says that plaintiff gave the driver a joint laced with drugs and that he told the driver "they were both ghosts" and could drive through a truck without anyone seeing them. But as a limited public figure, plaintiff has to show the statements were made with actual malice, or with reckless disregard of the statement's falsity. Analyzing the article carefully, the Court of Appeals (Wesley, Sullivan and Menashi) finds there is no reasonable inference that Rolling Stone published these statements with actual malice.

Inmates have due process rights, too

When the jail charges the inmate with misconduct, and the charges may lead to solitary confinement or some other punishment, the jail has to follow due process to ensure the inmates receive a fair hearing. But a fair hearing is not like the hearings we see outside the prison context, i.e., in public employment. I cannot recall the last time an inmate won an appeal like this in the Second Circuit, but the Court of Appeals holds the plaintiff was denied due process. 

The case is Vidal v. Venettozzi, issued on April 1. The inmate was incarcerated at Green Haven Correctional Facility. The jail charged him with punching a correctional officer in a dispute over when he could bring his legal materials into the A-Block. The jail said that plaintiff then punched a second correction officer who came to assist the first officer. But even if plaintiff is an inmate, the Supreme Court says he is still entitled to defend himself at the disciplinary hearing. 

This hearing lasted nine days. Under the rules, the jail has to assign someone to help the inmate gather witnesses for the hearing. This is a security measure. The inmate cannot just walk through the jail obtaining witness statements and commitments from other inmates to testify. Plaintiff claims he was not permitted to get and introduce certain documentary evidence, including the A-Block logbook. While the assigned evidence-gatherer, Carroll, did not obtain any witness statements, he told plaintiff these witnesses had agreed to testify. Following the hearing, he was found guilty to sentenced to 270 of confinement in the special housing unit, what we call SHU, where he has limited free movement or access to recreation, daily showers, use of the telephone, exercise equipment, social activities., regular visits without restrictions, access to the law library, and other benefits or access to programs at the jail. Plaintiff ultimately served 258 days in SHU. There is an assumption that the plaintiff did not receive a fair hearing, so the question is whether the due process clause required that the jail provide him one. The issue is whether plaintiff had a liberty interest in avoiding solitary confinement.

 

Inmates have a liberty interest under the due process clause to be free from disciplinary segregation without due process. But that right only kicks in if the inmate is subjected to an "atypical and significant hardship" at the jail, a legal standard devised by the Supreme Court in Sandin v. Conner (1995). One prior case holds that 305 days for disciplinary SHU qualifies as an aytpical and significant hardship, but that lesser amounts for administrative confinement may also qualify. The Court of Appeals holds that "the duration of Vidal's disciplinary segregation alone was an aytpical and significant hardship in relation to the ordinary incidents of prison life and thus implicates a protected liberty interest." Other cases hold that lengthy solitary confinement can cause significant psychological hardship, even physical hardship. The Court of Appeals (Robinson and Merriam) rules that plaintiff was entitled to due process. The case returns to the district court to determine if the individual defendant can invoke qualified immunity.