Plaintiff gets new trial on wrongful conviction fabrication-of-evidence claim

Here is another fabrication-of-evidence claim that involves law enforcement allegedly cutting corners to ensure a criminal conviction. The case will eventually be decided by a jury. 

The case is Batista-Reyes v. Paul, issued on August 17, 2.5 years after oral argument. The Court holds that plaintiff is entitled to a trial on his claims for malicious prosecution and fabrication of evidence under § 1983. The Court also holds that the defendant, former Troy Police Sergeant Robert Paul, was not entitled to qualified immunity at the summary judgment stage.

In December 1993, a man staying at a Super 8 Motel in Troy, New York, was assaulted and robbed. He told police that his attacker was a dark-skinned Black man with a short afro, about 5'8" to 5'10", wearing a long black jacket. Paul became the lead investigator and soon focused on Batista-Reyes. But plaintiff did not fit the victim's description. He is a light-skinned Hispanic man, did not have an afro, and was wearing a white-and-blue Giants jacket rather than a long black jacket. Yet, two women, Laura Ashley Pullen and Shannon Houser, gave police statements implicating plaintiff. Pullen became the prosecution's principal witness. She testified before the grand jury and at trial, and Batista-Reyes was convicted of all seven counts, receiving a sentence of 25 years to life.

Pullen then changed her mind in 2002, writing a series of letters while she was incarcerated, stating that plaintiff did not actually commit the crime and she was pressured into implicating him. Pullen said the District Attorney had threatened her and “gave me a script.” She also wrote that she was “TOLD to say everything” and was even made to rehearse her responses. This led to an investigation, and a special prosecutor concluded there were serious doubts about Pullen's original testimony. The state court granted set aside the conviction and Plaintiff was released after spending nearly 25 years in jail. 

We have a series of issues. First, hearsay. Pullen's letters were unsworn, and Pullen was unavailable as a witness. Paul argued that the letters were hearsay and could not be used to defeat summary judgment. The Second Circuit (Carney, Lee and Walker in dissent) disagreed, holding the letters could be admissible under the residual hearsay exception, Rule 807. We rarely see rulings interpreting the residual exception, much less rulings that favor the party trying to prove their case through this kind of hearsay. Plaintiff wins this argument. The letters are reliable because Pullen wrote multiple letters over several months, apparently without external prompting, she repeatedly made the same allegations, her letters were not written in response to police questioning, and the circumstances suggested that she was motivated by guilt rather than an effort to curry favor with law enforcement. The letters were also probative because Pullen had repeatedly avoided being deposed or appearing in court. Thus, at summary judgment, the letters were the best evidence Batista-Reyes could reasonably obtain concerning what happened in 1993.

On the probable cause issue, the district court noted that the grand jury indictment creates a presumption of probable cause. But, the Second Circuit notes, the presumption disappears when there is evidence that the indictment was procured through fraud, perjury, suppression of evidence, or other bad-faith police conduct. Pullen's letters created a factual dispute about whether her grand jury testimony had been coerced or fabricated. The Court also found evidence connecting Paul to the alleged misconduct. He was the lead investigator. He interviewed Pullen and obtained her written statement. A reasonable jury could find that Paul was one of the people Pullen meant when she repeatedly referred to “they” giving her a script and telling her what to say.

What also helps plaintiff's case is he did not match the victim's description, and there was evidence that Paul failed to investigate another possible suspect who apparently fit that description better. A jury could therefore find that Paul failed to conduct an investigation that a reasonable officer would have pursued.

On the fabrication of evidence claim, the Second Circuit noted that a police officer violates due process when he creates false information likely to influence a jury and forwards that information to prosecutors. And knowingly eliciting false testimony from a witness can constitute fabrication of evidence.

In 1993, Houser gave police a detailed account of the assault. Her description closely tracked the victim's account, including details about the victim sleeping against the headboard, the television and light, the knife, the threats, and the Nintendo games. But in a 2020 deposition, Houser said she was never in the room and did not see the assault. She explained that she had been using drugs and had told police what they wanted to hear, whether it was true or not. While the trial court said plaintiff's theory about Paul feeding Houser the information was speculative, the Court of Appeals holds instead that the evidence was sufficient to allow a jury to determine how Houser knew the details in her original statement and whether Paul participated in creating that statement. The same was true of Pullen. Her 2002 letters, combined with Paul's role as lead investigator and his involvement in obtaining her statement, created a genuine factual dispute over whether he coerced or fabricated her evidence.

Lyft not liable under ADA for not providing accessible vehicles to disabled riders

The Court of Appeals holds that a Lyft passenger cannot win her disability discrimination claim despite claiming that Lyft did not provide her wheelchair-accessible vehicles, also known as WAVs. 

The case is Lowell v. Lyft, Inc., issued on August 27. Plaintiff uses a motorized scooter and lives in White Plains. Lyft offers wheelchair-accessible “Access” rides in nine cities, including New York City. But it does not offer Access service in Westchester or most other areas.

The plaintiffs, including an advocacy group, proposed ways that Lyft could solve the problem. They wanted Lyft to remove its “blocker” preventing WAVs from being used in areas without Access service. They wanted Lyft to ask its drivers whether they had access to WAVs. They also proposed allowing WAV drivers to accept other types of rides, prioritizing WAV requests, and offering bonuses and incentives to attract WAV drivers. After a bench trial, the district court rejected those proposals. On appeal, plaintiffs argued that the district court improperly placed the burden on them to prove their proposed modifications were effective.

While the ADA requires transportation services to make reasonable modifications to their policies and practices, a plaintiff seeking a modification must prove the modification will be effective. As the Second Circuit (Kearse, Nardini and Lee) explained, an ineffective modification cannot be reasonable because it does not accommodate the plaintiff's disability. The plaintiff must also identify a plausible modification whose costs, on their face, do not clearly outweigh the benefits. Once that showing is made, to win the case, the defendant must prove the proposed modification is unreasonable.

Plaintiffs lose on the plausibility element. The problem for plaintiffs is there was not enough evidence that their proposal would create a functioning WAV service in Westchester. WAVs are rare and are generally not manufactured by automobile companies as wheelchair-accessible vehicles. Instead, standard vehicles are converted afterward, and those conversions can cost tens of thousands of dollars. In addition, there are not enough WAV drivers out there. When Lyft had tried to recruit WAV drivers in the Philadelphia and Delaware areas, it contacted more than 26,000 drivers, fewer than 130 responded, 30 referrals were received, and only one WAV driver joined Lyft's platform. That experience made it difficult for plaintiffs to prove that simply asking Westchester drivers whether they had WAVs would solve the problem.

The plaintiffs also claimed the district court had improperly required them to prove that their other proposed modifications were reasonable. The Second Circuit disagrees. The district court properly required plaintiffs to prove effectiveness while applying the lighter burden concerning reasonableness. Lyft then presented evidence showing that the proposals were ineffective and, in some respects, costly or otherwise unreasonable. Because the plaintiffs could not prove that their modifications would actually provide WAV service, the Court did not even have to reach Lyft's argument that the proposals would fundamentally alter its business.

Possible Batson violation may yield a new trial for plaintiff

A personal injury plaintiff may have a new opportunity to prove his unsuccessful claim on the basis that jury selection in this federal case may have been tainted by a Batson violation.

The case is Salters v. New York City Transit Authority, issued on August 7. The case arose from a car accident. Plaintiff was seriously injured when his car collided with a New York City Transit Authority bus driven by Jean Andre. Salters sued the Transit Authority and Andre for negligence. The case went to trial in the Eastern District of New York, where a jury returned a verdict for the defendants. On appeal, plaintiff argues that a Batson violation occurred during jury selection. 

Batson v. Kentucky is a Supreme Court ruling from 1986. Batson challenges arise when one party objects that her opponent is striking jurors due to their race; if so, that's an equal protection violation. When that happens, the opposing lawyer must give the judge a race-neutral justification for striking the Black juror. If that reason is a pretext -- such as when it lacks credibility or does not make sense -- the trial judge can return the rejected juror to the jury pool. Batson challenges are unpleasant because opposing counsel, who may have gotten along with their adversary during the case, is now accusing opposing counsel of using racial tactics to gain an advantage during trial. Many Batson challenges fail, as the lawyer can usually articulate a race-neutral reason for excluding the Black juror. But there is a procedure that the court must follow when someone makes a Batson challenge, and that procedure was not accomplished here. 

During jury selection, defense counsel used all three of his peremptory challenges against three Black prospective jurors—Jurors 8, 16, and 17. Salters's lawyer objected under Batson, arguing that the strikes were racially motivated. The magistrate judge required defense counsel to provide race-neutral explanations. But the explanations weresubjective. Counsel said Juror 8 appeared “very simply educated” and might have difficulty understanding expert testimony. Juror 16 was a home health aide, which counsel thought might make her sympathetic toward disabled or elderly people. Juror 17 “seemed a little out of it” and might not understand the evidence.

The judge rejected the Batson challenge, holding she did not think counsel struck Juror 17 because he was Black and that counsel had articulated race-neutral reasons. She also noted that two Black jurors remained on the jury. The judge's statement that defense counsel did not strike the juror because he was Black referred specifically to Juror 17. The judge's reference to “race neutral reasons” did not establish she had determined that the explanations for all three strikes were genuine rather than pretextual. The Second Circuit cites the Supreme Court's 2026 decision in Pitchford v. Cain, which reiterated that Batson's third step requires the trial court to determine whether the asserted reasons for the strikes were the actual reasons or instead were pretextual.

The Court of Appeals (Lohier, Lynch and Menashi in dissent) rejected the idea that the presence of two Black jurors on the final jury solved the problem. The fact that other Black jurors remain on a jury does not, by itself, defeat a Batson claim. Since defense counsel had already exhausted his peremptory challenges, the judge could not know whether counsel would have struck the remaining Black jurors had additional challenges been available.

Plaintiff does not automatically get a new trial. Instead, the case returns to the trial court for a Batson reconstruction hearing. The district court must determine whether the challenged strikes were discriminatory. If the passage of time or other circumstances make that determination impossible or unreliable, then plaintiff gets a new trial.

Second Circuit revives wrongful conviction claims against NYPD Detective and City of New York

 

The Second Circuit has reinstated a wrongful conviction lawsuit, holding the plaintiff – arrested in connection with a June 1989 murder at a movie theater – plausibly alleges that a NYC detective fabricated evidence against him and that the district court should reconsider its holding that plaintiff has not plausibly asserted a Monell claim against the City.

The case is Jiminez v. City of NewYork, issued on September 4. Plaintiff was convicted in 2007 of murdering Sean Worrell outside a Bronx movie theater. In 2022, a Southern District judge granted plaintiff’s  habeas petition and vacated the conviction upon finding that prosecutors suppressed important impeachment evidence concerning a key government witness. The criminal charges were eventually dismissed in 2023. Hence this lawsuit against the detectives and the Bronx District Attorney. While the district court dismissed plaintiff's claims, the Court of Appeals brings some of them back.

Without physical evidence tying plaintiff to the murder, the prosecution relied on three witnesses: eyewitness Esco Blaylock, cooperating witness Andrew O'Brien, and jailhouse informant Kevin Morrissey. Blaylock originally identified the shooter as someone he knew as “Leon.” But that is not Jimenez’s first name, and the complaint alleges that plaintiff did not look like the shooter. The complaint also alleges that police showed Blaylock multiple photo arrays in which Jimenez's photograph repeatedly appeared. The Second Circuit said such a procedure creates an increased danger of misidentification.

Another witness, O'Brien, was a prisoner seeking a reduced sentence. While the prosecutor obtained records showing his history of cooperation, his efforts to obtain leniency, and communications concerning his potential cooperation in Jimenez's case, those materials were never disclosed to Jimenez's lawyer. After Jimenez was convicted, the prosecutor wrote to the federal prosecutor praising O'Brien's cooperation and asking that he receive favorable consideration. O'Brien subsequently received another five-year reduction in his sentence. The habeas court found the suppressed impeachment evidence was prejudicial and vacated Jimenez's conviction. The court emphasized the weakness of the prosecution's case, including the questionable eyewitness identifications and the jailhouse informant. Morrissey was also a jailhouse informant, but the Court of Appeals holds he was unreliable and delusional, and the prosecution withheld impeachment evidence relating to this witness.

While the Second Circuit (Calabresi, Lee and Nathan) holds that plaintiff’s malicious prosecution fails because a grand jury had indicted him, creating a presumption of probable cause, it revives the fabrication of evidence claim, which is not defeated by probable cause. Plaintiff asserts such a claim against Detective Stradford.

The complaint incorporated an FBI memorandum suggesting that Stradford had already decided that O'Brien would identify Jimenez as the killer before Stradford's initial meeting with O'Brien. Combined with O'Brien's efforts to obtain a sentence reduction, the nondisclosure of those circumstances, and the allegation that Jimenez did not resemble the shooter, the Court found enough to plausibly infer that Stradford intentionally induced O'Brien to give false testimony.

The allegations concerning Blaylock are also revived because, the Second Circuit holds,  repeatedly showing a witness photo arrays containing the same suspect could support an inference that the witness was improperly induced to identify that suspect. At the pleading stage, Jimenez did not have to prove precisely what Stradford said to Blaylock behind closed doors.

As for the Monell claim, which allows you to sue the City and not just the individual officers, remember how difficult it is to prove the municipality had a policy and practice that led to the plaintiff’s civil rights violations. Many police misconduct claims are not amenable to a Monell claim because these cases stem from an individual police officer or detective’s misconduct. In this case, plaintiff alleged the City maintained a policy or custom of failing to discipline Bronx prosecutors for ethical violations. While the district court rejected the Monell claim, reasoning that Jimenez could not establish the necessary constitutional violation without showing that the prosecutor's Brady violation was intentional, the Court of Appeals sees it differently, noting that its prior decisions had not decided whether a civil Brady claim necessarily requires intentional nondisclosure. And Monell liability focuses on whether the municipality's policy or custom caused the constitutional violation, including whether the municipality acted with deliberate indifference.

Here, the complaint also plausibly alleged intentional conduct by the prosecutor. Plaintiff alleges she knew about O'Brien's efforts to obtain leniency, received documents from the federal prosecutor, but failed to disclose them to the defense. The Court of Appeals remands the case to the district court to consider whether Jimenez adequately alleged a municipal policy or custom and whether that policy caused his constitutional injury.

Employees barred from wearing certain pins during Starbucks union drive

The Court of Appeals holds that Starbucks may regulate how workers may display their support for a union drive in the workplace, including pins. The t-shirt policy is still an open question.

The case is Siren Retail Corporation v. National Labor Relations Board, issued on September 2. Starbucks employees were trying to organize a union shop. They wore black t-shirts bearing the name and logo of Starbucks Workers union atop their Starbucks-approved aprons. When Starbucks told the workers that the t-shirts violated company policy, they filed a charge with the NLRB, which then filed a complaint against Starbucks challenging its one-pin policy identifying a particular labor organization, and the issue-pin policy, that bars workers from wearing pins depicting political, religious or personal issues. The NLRB also challenged the logo-shirt policy barring workers from displaying colors, designs or writings that Starbucks did not approve.

The NLRB ruled against Starbucks, which challenged that result in the Second Circuit (Walker, Carney and Nardini), which holds as follows:

1 The one-pin policy is not an unfair labor practice. The Second Circuit has already held that a close analogue to that policy was legal. "Starbucks is 'entitled to avoid the distraction from its messages that
a number of union buttons would risk' and ... Starbucks 'adequately maintain[ed] the opportunity to display pro-union sentiment by permitting one, but only one, union button on workplace clothing.'”

2. The issue-pin and logo-shirt policies are a closer question and the case is remanded to the NLRB to reconsider its ruling against Starbucks. The Second Circuit applies a balancing test for the NLRB to apply in this case. 

When balancing employer and employee interests on remand, the Board should seriously entertain the following factors, as part of its analysis: (1) the extent of intrusion on employee Section 7 rights (i.e., whether the employer enforced a full or partial ban on union insignia during working time); (2) whether the employer’s policy is facially neutral, nondiscriminatory, and consistently enforced; (3) the context or circumstances underlying the intrusion. In considering these factors, the Board’s factual findings must be supported by substantial evidence. By doing so, the Board will be better able to assess whether an employer’s policy “truly diminished the ability of the labor organizations involved to carry their message to [] employees.”

This balancing rejects an NLRB rule -- called the Tesla standard -- that the Second Circuit holds "does little more than pay lip service to balancing."  

 

 

No free speech claim after school directed teacher to remove gay pride flag from classroom

The Court of Appeals has ruled that a school teacher in Suffolk County did not have the First Amendment right to post pride flags and stickers in her classroom, and that the district did not violate the Constitution when it ordered her to remove these expressive decorations. 

The case is Dolce v. Connetquot Central School District, issued on August 31. Plaintiff, a math teacher, had a large pride flag in her classroom for years, along with a traditional pride flag covering the white board. But a few years ago, after some students said they were uncomfortable with the flags, the school told her to replace the flags with a sign that said, "This is a safe place to be who you are." Plaintiff did not remove the pride flags and two other LGBTQ+ teachers (who are also plaintiffs here) advocated on the math teacher's behalf in an effort to keep the pride flags on the wall. Ultimately, the district said that school policy only permitted the U.S. flag and the New York State flag in classrooms, and that employees could not engage in "political practices" on campus. Shortly thereafter, the district said that pride stickers in the classroom were also disallowed.  

This case involves speech -- placement of the pride flags and stickers -- but that does not make it a viable frees speech case. The First Amendment has its share of balancing tests and frameworks depending on the circumstances. For public employees, the plaintiffs have to show they spoke as a citizen (protected speech) and not as an employee (unprotected speech). Under the Supreme Court's Garcetti ruling in 2006, speech is unprotected if it "owes its existence to a public employee's professional responsibilities." If that is the case, then the government can control the speech. Under more recent Supreme Court authority, Kennedy v. Bremerton School District, 597 U.S. 507 (2022) (the football coach prayer case), courts consider whether, given the "timing and circumstances" of the speech, the expression is what "the employee is expected to deliver in the course of carrying out his job." The Second Circuit's reliance on Kennedy is significant: it is the first time the Second Circuit has cited Kennedy for that proposition in a public employee speech case.

Since public school teachers are expected to teach a particular curriculum and to create classroom learning environments and materials to support that curriculum, the wall decorations in this case owe their existence to their core professional responsibilities, and the district may therefore ask them to remove the decorations without violating the First Amendment. And, while Garcetti has a carve-out for college professors, who have leeway to present their views and speak freely, that exception does not apply in the grade-school context, where work-related speech rules are more restricted and teachers have to follow a curriculum. The Second Circuit (Nathan, Park and Kahn) holds for the first time that Garcetti governs a public school teacher's curricular speech. 

Plaintiffs also assert a Title VII claim on the basis of sex discrimination. But that claim fails because they cannot prove an adverse action, even under the more lenient test in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), which dispenses with the "materiality" or "significant" test and instead asks whether the plaintiff can prove "some harm respecting an identifiable term or condition of employment." The Court of Appeals holds there is no adverse action here because there was no discipline, termination, or loss of pay but instead a directive that they remove the pride flags and stickers from the classroom walls. That directive does not implicate Muldrow because it does not impact "an identifiable term or condition of their employment." Nor does it reflect "some injury respecting one."

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.