Friday, November 17, 2017

The pitfalls of appellate practice under Section 1983

A key difference between appeals in state and federal court is that in state court you can appeal any court ruling, even if the case is not even resolved. In federal court, you have to wait for the case to be resolved in its entirety before you can take an appeal. This reduces the number of federal appeals. There are exceptions to the federal rule, but those exceptions are narrow.

The case is Latreille v. Gross, a summary order decided on November 15. This is a public employee First Amendment retaliation case. Plaintiff worked for Orange County. The decision is not clear on this, but she was evidently disciplined for disclosing certain public assistance information to law enforcement. Public employees do have some speech rights, but they are limited under Garcetti v. Ceballos, 547 U.S. 410 (2006), which says employee speech is not protected under the First Amendment if the employee speaks pursuant to her job duties and does not speak as a citizen. The trial court denied the County's summary judgment motion on this issue.

Normally, when the court denies defendant's summary judgment motion, the case heads to trial or the parties settle. But in Section 1983 cases, individual defendants can invoke qualified immunity, which gets them off the hook if they did not violate clearly-established law. If the trial court denies that motion, the government defendant can take up an immediate appeal (we call it an interlocutory appeal) on the qualified immunity theory, on the basis that government defendants have the right to get out of the case at the earliest possible opportunity. The kicker, though, is that, in taking up the appeal, the government has to assume for purposes of the appeal that the plaintiff's version of events is correct and that, even under the plaintiff's side of the story, the government defendant is entitled to immunity.

This is easier said than done. Government lawyers certainly know that the rule that in order to take an interlocutory appeal, they have to assume for the time being that the plaintiff's account is true. But in writing the brief, government lawyers will still press their side of the story. The Court of Appeals is wise to this tactic, and it notes in this case that it dismisses these appeals all the time without reaching the merits because it often finds that the case is too fact-specific for appellate review at this early stage. That is what happened here. Here is how the Court of Appeals reasons it out:

Gross and Miller profess — as they must — to pursue their interlocutory appeal based on the facts alleged by Plaintiff-Appellee Nicole S. Latreille. However, upon our review of the record and despite Gross and Miller's representations to the contrary, we conclude that Gross and Miller do not proceed on this basis. We thus must dismiss their appeal for lack of appellate jurisdiction.

As one example, Gross and Miller spend considerable time arguing that Latreille's disclosures to law enforcement of public assistance records, insofar as they related to welfare fraud, were within the scope of her professional responsibilities and therefore not constitutionally protected. Based on the record, we lack jurisdiction to review this challenge. The district court determined that "[t]he parties don't dispute that Plaintiff's investigation was outside of her official job responsibilities." S.A. 15-16 (emphasis added). And there is ample record evidence that Latreille's job responsibilities did not include fraud investigation of any sort, whether it be welfare or mortgage fraud. See, e.g., J.A. 120 (noting that it is not "within [Latreille's] job description to conduct investigations into fraud"); id. at 113 (noting that the work "expanded beyond [her] job duties"); id. at 133 (noting that the information was not "pertinent" to Latreille's job); id. at 269 (noting that her "investigations and disclosures were outside the scope of her work responsibilities");id. at 552 (noting at Miller's deposition that "investigating to begin with" is not part of Latreille's duties); id. at 624 (noting in Bradshaw's complaint letter that "[t]his certainly is not part of our job description"). Some of this record evidence is even cited in Gross and Miller's own Rule 56.1(a) statement.

Thursday, November 16, 2017

No false arrest case following workplace fracas

What you need to know about false arrest lawsuits is that the police officers win far more frequently than they lose. Probable cause is a defense to any false arrest case, even if the plaintiff was acquitted at the criminal trial, and even if the police dropped the charges prior to any trial. Nor do the officers have to conduct a thorough investigation prior to making an arrest that is later abandoned by the district attorney. And if all else fails, the police officers are immune from suit if the court finds the arrest was objectively reasonable, even if was a bad arrest in hindsight.

The case is Iocovello v. City of New York, a summary order decided on November 14. Plaintiff, a supervisor at the Department of Sanitation, was arrested for assaulting King, his subordinate, after a verbal dispute. Officer Francis spoke to plaintiff and King. Both men were arrested. Eyewitnesses to the fracas prepared written statements, each of which said King attacked plaintiff. While the parties dispute whether Francis read those statements before making the arrests, that does not matter, the Court of Appeals says, because even if Francis did see the statements, she had arguable probable cause to arrest plaintiff "based on King's statement alone."

You read that right: "arguable probable cause." That is a court-made doctrine that allows police officers to invoke qualified immunity in false arrest cases. The police can arrest you based on someone else's eyewitness account, even if that account is wrong or even a lie. The police cannot make the arrest if they know the statement is unreliable or tainted in some way. But that's tough to prove. Case after case is dismissed because the police do not have to conduct a thorough investigation prior to making the arrest.

How does plaintiff get around this? He says that his injuries were worse than King's injuries, and that King is a much larger man than plaintiff. "However, a reasonable officer responding to this workplace incident may have assumed that a fight involving both Iocovello and the much larger King could logically lead to the smaller person having the greater signs of injury. There was also no need for an in-depth investigation once Officer Francis heard King's version of the events, viewed evidence that a scuffle had occurred between Iovovello and King, and had no reason to doubt the veracity of King's statements." 

Monday, November 13, 2017

Supreme Court upholds death penalty for man who does not remember committing the crime

The Supreme Court resolved this death penalty case without hearing oral argument. It decides the case on the briefs. The Court holds that the State of Alabama can apply the death penalty to a man who no longer remembers killing his victim.

The case is Dunn v. Madison, decided on November 6. The facts are not complex. More than 30 years ago, Madison killed a police officer at close range. As his execution neared, Madison claimed he was not competent to be executed because he suffered a stroke. A court-appointed psychologist said Madison "understands the exact posture of the case at this point" and knows that Alabama is seeking retribution for his criminal act. Madison's expert said that while Madison does not remember the crime, he knows what he was tried for and knows he is in prison for murder even though he believes he "never went around killing folks."

This case arises in the posture of a habeas corpus proceeding. You can get habeas relief if the federal court finds that the state court conviction violated the U.S. Constitution. But a mere constitutional violation is not enough to win the habeas petition. You have to show the state court unreasonably applied clearly-established Supreme Court precedent. In other words, if the Supreme Court has not clearly addressed the issue raised in your habeas petition, you lose, even if, upon reflection and in hindsight, it appears the state court did violate the Constitution. Madison prevailed in the Eleventh Circuit. The Supreme Court reverses the Eleventh Circuit and Madison will be executed.

In Panetti v. Quarterman (2007), the Supreme Court said "the retributive purpose of capital punishment is not well served where the prisoner's mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole." In 1986, the Court questioned the "retributive value of executing a person who has no comprehension of why he has been singled out." That case was Ford v. Wainwright. These cases are close, but no cigar. These cases did not squarely address the issue raised by Madison's case: whether "a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case."

Justices Ginsburg, Breyer and Sotomayor concur in the Court's ruling. They write that "The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court." But that is not enough for the Court to hear the case. "Appropriately presented, the issue would warrant full airing." Under the habeas corpus law that Congress enacted in 1996, which talks about clearly-established Supreme Court authority and whether the state court committed a clear constitutional violation, Madison must lose.

Thursday, November 9, 2017

Court finds no legal duty to protect crime victims

One of the real epiphanies in law school is when students learn that the law does not require people, and even the police, to affirmatively protect people. New York does not have a good samaritan law, such that if you see someone lying in the street calling for help, you are not legally required to help him. A related rule governs police conduct. We see that in this case.

The case is Torres v. Graeff, a summary order decided on November 8. In DeShaney v. Winnebago County (1989), the Supreme Court said the family of a young boy who was severely by his father could not sue the Department of Social Services for failing to protect the boy, even though DSS knew or should have known the boy was at risk, particularly since the boy was not in DSS custody.

The reasoning in DeShaney has been applied to the police. The Second Circuit has stated that "a [state actor's] failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." However, the Court has also stated that a state actor, such as the police, may be held liable to a victim of private violence under a theory of "state-created danger" if the police engaged in conduct that "affirmatively enhanced the risk of violence." That case is Okin v. Cornwall on Hudson, 577 F.3d 415 (2d Cir. 2009). Under Okin, the police may be found to have enhanced the risk of violence against someone "by providing the aggressor with assurances that he would be permitted to act with impunity." A plaintiff can allege the police had implicitly communicated with the violent actor through a showing of "repeated, sustained inaction by officers in the face of potential acts of violence."

This case does not satisfy that standard. There is no sustained inaction here. Plaintiff alleges that the police responded to a single report that a mentally-ill man was acting violently by placing him under custodial arrest under New York Mental Hygiene Law section 9.41. They also utilized force to handcuff and detain the man in the back of a police car, removing him from the premises and taking to the hospital for a mental health evaluation and instructing hospital staff to contact the police at a specified time before releasing him. The Court (Jacobs, Lynch and Crotty [D.J.]) writes:

The fact that the officers asked to be contacted at the conclusion of the medical evaluation rather than remain physically present during it cannot be read as having transformed their affirmative “interference” with Bumbolo’s violence and their unwaveringly adversarial posture toward him throughout the interdiction into a “plainly transmitted [] message that what he did was permissible and would not cause him problems with authorities.” The complaint therefore fails to state a constitutional claim against the officers. On the facts pled, the tragedy that ensued is simply not
one for which the officers may be held liable under the Due Process Clause.

Tuesday, November 7, 2017

Pro se plaintiff wins due process and Title VII appeal

Due process is enshrined in the Constitution, but the courts have made it difficult to sue over due process violations. In this case, the pro se plaintiff wins her appeal, reinstating her due process claim against the City of New York.

The case is Xu v. City of New York, a summary order decided on November 2. We don't know much about the due process claim, but the Second Circuit notes that if your due process rights are violated, the usual procedure is to bring an Article 78 following the property or liberty deprivation. That rule applies when a relatively low-level government employee shafts you through an "random or unauthorized act[]." In those cases, the Article 78 procedure is the due process. That rule does not apply, however, when the deprivation was perpetrated by "officials with final authority over significant matters, which contravene the requirements of a written municipal code, and can constitute established state procedure."

Since plaintiff "was improperly fired without a postdeprivation hearing because Municipal Defendants wrongly believed her to be a probationary employee who was not entitled to such a hearing," and plaintiff claims a high-level official orchestrated her termination, plaintiff has a due process claim. Plaintiff does not have to worry about the CPLR. She can avail herself of the beauties of the Federal Rules of Civil Procedure.

Plaintiff also has a discrimination claim under Title VII. She says a younger white male was treated more favorably on the basis of race. The disparate treatment included plaintiff receiving negative feedback while the white comparator got positive feedback. These and other allegations of disparate treatment allow plaintiff's case to proceed. Since this was a Rule 12 dismissal, mind you, the parties must pursue discovery. No doubt, the City will move for summary judgment once discovery is complete. Hey, why not? Government lawyers love moving for summary judgment.

Friday, November 3, 2017

Teacher cannot sue superiors in academic speech case

If you handle civil rights cases, you may have litigated free speech cases on behalf of public employees who claim they suffered retaliation for speaking out on the job. Prior to 2006, these cases involved employees who spoke out on matters of public concern, defined as any matter of political, social, or other concern to the community. That changed in 2006, when the Supreme Court decided Garcetti v. Ceballos, which said that, in order to win the case, the plaintiff must also show he spoke as a citizen. This means that public concern speech pursuant to the employee's official job duties is not protected speech. Garcetti changed everything in public employee First Amendment litigation. That impact remains with us.

The case is Lee-Walker v. New York City Board of Education, a summary order decided on October 17. I represented the plaintiff in this case. Plaintiff was a public school teacher who wanted to teach her high school students about the Central Park 5, a well-known rape case from 1989 in which five minority youths confessed to a horrible crime but were later exonerated because of the false confessions and evidence that someone else committed the crime. The complaint alleges that a school administrator objected to the class on political grounds, telling plaintiff that the students among other things might riot. Plaintiff alleges she was fired over the class. The lawsuit alleged that the First Amendment prohibited her termination.

In 2004, the Second Circuit held in Silano v. Sag Harbor School District that teachers had a First Amendment right to classroom speech but that school administrators could regulate that speech provided the restrictions are reasonably related to legitimate pedogogical objectives. In other words, the speech restrictions have to be reasonable. Silano would help Lee-Walker's case, since the administrator's objection to her class on the Central Park 5 was political and therefore unreasonable. At least that's the argument that I advanced. That argument, however, ran into Garcetti.

The Supreme Court in Garcetti did not purport to rewrite First Amendment retaliation law. But it did emphasize that "citizen speech" and not "work speech" is protected. This means that a public comptroller who blows the whistle on missing money can get fired for that speech, as it was the comptroller's job to say this. The janitor would have speech rights to blow the whistle on that issue, assuming he actually knew something about the embezzlement. Still, some judges in the Southern District of New York thought Garcetti simply meant that the plaintiff has no First Amendment retaliation case if he is disciplined for mandated speech, that is, where he speaks up because it is his job to speak on a particular matter. That was a reasonable interpretation, but the Court in Garcetti did not exactly say this because Justice Kennedy, who wrote the majority opinion, did not lay out what the decision really meant. That left it to the Circuit courts to interpret what the Garcetti Court had intended. In 2010, the Second Circuit did that in Weintraub v. Board of Education, which held -- over a vigorous dissent by Judge Calabresi -- that public employee speech is not protected under the First Amendment if it is "part and parcel" of his official duties. Here's the money quote:

under the First Amendment, speech can be “pursuant to” a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer. In particular, we conclude that Weintraub's grievance was “pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties.”
The "part and parcel" language expands the employer's authority to regulate the speech. The standard does not just cover mandated speech but a great deal of work-related speech. As a practical matter, this means that anything of importance that a public employee might say would be unprotected under the First Amendment, precisely because the employee will most likely speak out pursuant to something she learned or observed in the course of her official duties. This could lead to strange results. In 2011, I argued an appeal in the Second Circuit, Moray v. Somers Central School District, in which the maintenance supervisor for a school district spoke out about asbestos flaking off the ceiling and onto the gymnasium floor, potentially harming students. The case was dismissed and we appealed. Hamstrung by Garcetti, but recognizing the importance of the plaintiff's speech, Judge Calabresi asked the school district's lawyer, "isn't this an absurd result?" We lost the appeal in a summary affirmance, another Garcetti casualty.

Garcetti was originally argued when Justice Sandra Day O'Connor was on the Supreme Court. When she retired from the Court in 2006, the Court ordered re-argument, a rare event probably occasioned by the departure of the Court's swing-vote. With a likely 4-4 vote on this issue, the Court wanted a full slate of judges to resolve this issue. That happened when Samuel Alito joined the Court, which then issued the 5-4 ruling in Garcetti. Alito voted with the majority, and Garcetti became the law of the land.

The problem is that Garcetti is not quite clear about what the Court was trying to do. Was the Court  re-writing First Amendment law in this area, deliberately making it more difficult for plaintiffs to win? Or was Garcetti a poorly-written ruling that was subject to interpretation, prompting lower court judges around the country to throw out cases that in years past would have made it to trial? I am going with the latter interpretation.

Two constitutional doctrines now doom most public employee speech cases. First, Garcetti, as I discuss above. The second problem is qualified immunity, which prevents plaintiffs from suing governmental officials for money damages if the law was not clearly established at the time of the incident. If the case law was not crystal clear that the defendant violated some constitutional provision, he gets the benefit of the doubt and the case is dismissed. The theory is that governmental officials are assumed to know the law but are not legal scholars and cannot anticipate how the courts will rule on a given set of facts. The reality is that many governmental officials do not really know the law and rely on their lawyers to make the qualified immunity argument. Nonetheless, qualified immunity is a true barrier to relief for many plaintiffs.

While it was issued in 2006, Garcetti continues to create a qualified immunity problem for plaintiffs. While Lee-Walker's case would probably proceed under the Silano v. Sag Harbor precedent, the Second Circuit in her case said the Silano precedent is no longer clear under Garcetti, as Lee-Walker did speak pursuant to her duties though in an academic context. Silano recognized that classroom speech is entitled to some constitutional protection. Garcetti raises some doubt about this, so Lee-Walker's case is dismissed on qualified immunity grounds. While courts do have authority to clarify the law for future purposes at the same time they find that the plaintiff in the present case does not assert the violation of his clearly-established rights, the courts rarely do this. The law governing academic speech will remain fuzzy and unenforceable for as long as the courts decline to issue a definitive ruling about what speech is protected.

I have had other cases that got lost in the Garcetti graveyard, each of them disregarding prior Second Circuit precedent. In Kiehle v. County of Cortland, the Second Circuit in 2012 held that a DSS social worker could not sue her superiors who fired her because of her courtroom testimony arising from one of her cases. While cases prior to Garcetti held that courtroom speech is sacrosanct and cannot predicate governmental retaliation (including Catletti v. Rampe, a case I argued in 2003), the Second Circuit held that her speech was unprotected under Garcetti. The Second Circuit reasoned:

as the district court concluded based on the indisputable facts, Kiehle did not testify as a private citizen on a matter of public concern at the Family Court hearing; rather, she testified as a government employee — as a DSS caseworker. "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Thus, the district court did not err in granting summary judgment to defendants.
We petitioned for certiorari in Kiehle, with help from the Yale Law School constitutional clinic, but the Supreme Court declined to hear the case. The Supreme Court later held in Lane v. Franks (2014) that courtroom testimony is protected under the First Amendment. Too late for Kiehle.

A few years later, I took an appeal on behalf of a public official in Nassau County who was fired after he spoke before the County Legislature. A Second Circuit case, Piesco v. City of New York, held that public workers cannot be fired over this speech, as an informed democracy requires public officials to address legislative bodies without fear of retaliation. Of course, I relied on Piesco in Williams v. County of Nassau. The Court of Appeals saw Williams' case as a clear Garcetti case and disregarded Piesco. We petitioned the Supreme Court to hear the case, enlisting legendary constitutional scholar Erwin Chemerinsky to draft the petition, but the Court declined to hear the case.

What can be done about the diminishing free speech rights of public employees? Forget about a constitutional amendment. The Constitution has been amended only three times in my lifetime, and the last time it happened was 1992 (on a non-civil rights issue having to do with congressional pay). Congress could pass a law, but that is always tricky because I don't see great sympathy among Republican congressmembers and the President for whistleblowers. Even if a law is passed, it might be targeted as unconstitutional, which is what happened when Congress in 1993 tried to overturn a restrictive Supreme Court ruling (Employment Division v. Smith) that scaled back the religious freedom rights under the Establishment Clause. Courts could find ways around Garcetti, but that is rare. The Second Circuit has had many opportunities to carve out exceptions to Garcetti but it rarely does so. The most realistic option is for courts to issue a clear statement of the law for future cases even while granting qualified immunity in a particular case. The Supreme Court says that is an option for the lower courts. So far, the lower courts are not taking the bait.

Wednesday, November 1, 2017

False arrest case proceeds to trial because of faulty identification lineup

The Court of Appeals holds that a false arrest plaintiff can take his case to the jury because the identification lineup that led to his arrest was faulty and the police arguably lacked probable cause from any other source to think the plaintiff played a role in a death at a nightclub in New York City.

The case is Dufort v. City of New York, decided on October 27. The facts are tragic no matter how you slice it. Plaintiff and his teenage friends were a club when an altercation broke out in the middle of the night. Surveillance video showed plaintiff entering the club with a metal pipe hidden in his clothing. Many people were involved in the attack. While the video shows plaintiff leaving the room when the fight began, holding the pipe, the video did not capture the fight. During the criminal investigation, a witness could not recognize plaintiff's face or other distinguishing characteristics, and she could only confirm that she had seen someone wearing a maroon sweatshirt participate in the attack. Plaintiff's sweatshirt was that color. When plaintiff was placed in the lineup (he was the only one in the lineup with the maroon sweatshirt), a witness identified plaintiff as one of the attackers; this was based solely on the color of the sweatshirt. Plaintiff was acquitted at trial.

False arrest cases cannot proceed if there was probable cause for the arrest. Probable cause presents a low threshold for the police. It amounts to less evidence than needed to convict. For this reason, most false arrest cases are thrown out on the motion for summary judgment. Not this one. There was no probable cause because the lineup procedure was defective. The witness could not recognize plaintiff's face, and she could only recognize the color of his sweatshirt as similar to that of one of the assailants. Then, during the lineup, this witness picked out plaintiff, the only one wearing a maroon sweatshirt during that procedure. As the lineup procedure substantially increased the dangers of misidentification, it was not good enough for probable cause. Without other evidence that would reasonably allow the police to think plaintiff played a role in the attack, there was no probable cause, and the case can proceed to trial.

The Court of Appeals (Walker, Livingston and Lynch) also allow the malicious prosecution claim to proceed to trial. While the defendant officers claim they cannot be sued because the prosecutor's decision to go after the plaintiff interrupts the chain of causation -- on the theory that the prosecutor's independent judgment confirms there was reason to prosecute the plaintiff -- that must be determined by the jury. The evidence suggests the DA's office pursued the prosecution after it was deliberately misled by the defendant officers. Plaintiff "has raised a triable issue of fact as to whether either the grand jury's indictment or the prosecutor's participation in his case constituted intervening causes that insulate the Defendants from liability." For these reasons, defendants cannot invoke qualified immunity as a matter of law. The Court says:

We conclude that it would be inappropriate to grant qualified immunity to these Defendants at the summary judgment stage. Dufort has established a dispute of material fact as to whether the Defendants intentionally withheld or manipulated key evidence during his arrest and prosecution. He has introduced sufficient evidence from which a reasonable jury could conclude that the Defendants placed him in a deeply defective lineup, extracted an "identification” from Park that was limited to the color of his clothing, and then withheld the suspect nature of this identification from prosecutors and the grand jury. Such a “knowing” violation of his Fourth and Fifth Amendment rights would, if proven, be enough to overcome the protection of qualified immunity. Although Dufort has not produced any direct evidence of a malicious intent on the part of the Defendants, he is not required to do so. Circumstantial evidence is generally sufficient to prove intent, and Dufort has introduced enough such evidence to survive summary judgment.