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.  

 

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.