Protester loses excessive force on qualified immunity grounds

You may not be aware of this, but the Supreme Court on a regular basis summarily reverses rulings from around the country holding that a jury may find that police officers used excessive force in arresting people. These decisions are handed down without full briefing or oral argument on the basis that the officers are entitled to qualified immunity: that the factual record proves the officers acted reasonably at the time because no prior court rulings put the officers on notice that they were violating the Fourth Amendment. That pattern continues with a case from Vermont, where a protester was physically injured by the police after she refused a disbursal order.

The case is Zorn v. Linton, issued on March 21. Plaintiff was protesting the Governor's inauguration in Vermont; they were demanding universal health care. It was a passive-protest, in that the protesters did not fight with the police but they refused to move away when the police gave that directive. The police gave her a warning (threatening "pain compliance"), but plaintiff did not listen. So they lifted her up by her underarm after placing pressure on her wrist. This sequence caused plaintiff to suffer physical injuries.

Although the Second Circuit held the jury may find the officers used excessive force and that it was too early to grant the officers with qualified immunity, the Supreme Court, by a 6-3 vote, reverses, granting the officers immunity. Officers get immunity if they acted reasonably under the circumstances. This is one of the most complicated areas of constitutional law. Unless a case is directly on point, or quite close to the facts, then the officers are not on constructive notice that their actions are violating the Constitution. What it means for this case is as follows: while the Second Circuit denied immunity in another passive-protest case, Amnesty America v. West Hartford, 361 F.3d 113 (2d Cir. 2004), in that case, the Supreme Court says, the officers lost immunity because they inflicted physical harm without first warning the anti-abortion protesters. The Zorn case is different because the officers did give a warning. Immunity attaches because the Second Circuit has never held that the officers can be liable for excessive force even after they warned the protesters they will use "pain compliance" to break up the protest.

This immunity analysis, unique to constitutional claims for damages, essentially requires the plaintiff to identify case that is almost on all-fours with their case in order to avoid dismissal. It kills off a lot of good cases. In dissent Justice Sotomayor, writing on behalf of Justices Kagan and Jackson, says the Court majority is both misreading Amnesty America (there was a warning in that case) and narrowly applying the qualified immunity doctrine to knock out cases like this, a trend that has persisted at the Supreme Court quite some time.

A few observations about qualified immunity. The requirement that plaintiffs identify a case on point to avoid immunity is a judge-made rule that assumes (1) police officers will go bankrupt if they have to defend and possibly lose these cases where the law was not clearly-established at the time of the constitutional violation and (2) police officers are aware of case law developments in their jurisdiction and then apply that knowledge in the course of their duties. Neither factual predicate is true. Nearly all officers are indemnified by their municipalities, and police officers are not reading case law in their spare time. 

Another observation: the Court in this case drops a footnote that assumes the body of law in the Second Circuit is relevant in determining whether the law was clearly-established. The Supreme Court has never actually told us whether that is true or whether we can only look to Supreme Court case law in solving the clearly-established puzzle. The Second Circuit -- most if not all circuits, really -- look to their own body of cases for this inquiry. But nothing stops the Supreme Court from limiting the pool of cases to Supreme Court authority. If that happens, say goodbye to many (perhaps not all) damages claims under the Constitution, as there are far fewer Supreme Court cases on civil rights than the Circuit Courts have to offer, making it much harder to find a case sufficiently on point to avoid qualified immunity.

How does Muldrow affect discriminatory hostile work environment claims?

In researching recent legal developments for an upcoming Continuing Legal Education seminar, I have discovered a split among the circuit courts about how to apply the Supreme Court's recent decision in Muldrow v. City of St. Louis (2024), which relaxes the plaintiff's burden in proving adverse actions in disparate treatment claims, rejecting the prevailing rule that plaintiffs must show the personnel action significantly or materially affected a term or condition of employment; now, the plaintiff only need prove "some harm." In hostile work environment cases under federal law, the plaintiff show the abusive conduct was severe or pervasive, a test devised by the Supreme Court in Meritor v. Vinson (1986). Does Muldrow apply to hostile work environment cases? Here is the research. Bear in mind the Second Circuit has yet to conclusively resolve this issue.

Kellar  v.  Yunion,  Inc.,  157  F.4th  855  (6th  Cir.  2025):  While Muldrow addressed an adverse employment action (an employee transfer), the Sixth Circuit extends this holding to hostile-work-environment claims, recognizing that such claims are similarly based on a disadvantageous change to a term, condition, or privilege of employment. As the discrimination statutes do not require a heightened showing of harm, courts “should ask whether a work culture permeated with discriminatory harassment ‘left an employee ‘worse off respecting employment terms or conditions,’ not whether an employee was significantly worse off.” Accordingly, post Muldrow, “courts cannot require a plaintiff to show that he suffered a heightened level of harm to succeed on a hostile-work-environment claim. For summary judgment purposes, once a plaintiff provides evidence that the environment itself was objectively hostile to the protected class, so long as the hostility ‘produce[d] ‘some harm respecting an identifiable term or condition of employment,’ he meets his burden.”

McNeal v. City of Blue Ash, 117 F.4th 887 (6th Cir. 2024): “Because hostile-work-environment claims arise out of the same statutory language as disparate-treatment claims, Muldrow’s holding that Title VII does not require plaintiffs to show ‘significant’ harm applies to both types of claims. Instead, the employer's discriminatory action—or, as is the case here, the work environment—needs to produce ‘some harm respecting an identifiable term or condition of employment.’ Thus, when we consider whether a hostile-work environment was severe or pervasive enough to violate Title VII, we effectively ask whether it left an employee “worse off respecting employment terms or conditions.” Citing Muldrow, the Sixth Circuit holds that “a jury could conclude that McNeal was denied the discretion granted to other officers, qualifying as a ‘disadvantageous’ change in an employment term or condition.’”

A post-McNeal ruling from the district court in Ohio interprets McNeal to alter the standard guiding hostile work environment claims. In Aarnes v. Ohio State Univ., No. 2:24-CV-2146, 2025 WL 2734171, at *7 (S.D. Ohio Sept. 25, 2025), the court stated:

a plaintiff need only demonstrate that the employer's discriminatory work environment resulted in “‘some harm respecting an identifiable term or condition of employment.’” McNeal, 117 F.4th at 904 (quoting Muldrow, 601 U.S. at 355). The relevant inquiry is whether the work environment left an employee “worse off respecting employment terms or conditions.” Id. Despite the lowered threshold, courts continue to evaluate hostile-work-environment claims based on the totality of the circumstances, “including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.’” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787– 88 (1998)).

District courts have begun applying this standard. See, e.g., Yoder v. Ohio State Univ., 2025 WL 755276, *8 (S.D. Ohio Mar. 10, 2025) (applying the factors and the “worse off” standard when resolving a motion for judgment on the pleadings on a hostile-work-environment claim post-McNeal); Collins v. City of Detroit, 2025 WL 1019754, *7 (E.D. Mich. Apr. 4, 2025) (applying McNeal and finding that “the plaintiff is not required to allege any particular level of egregious mistreatment, only to describe a totality of instances  sufficient  to  alter  the  conditions  of her  employment  in  some  way.”).

In contrast, the Tenth Circuit does not find that Muldrow affects the hostile work environment analysis. In Russell v. Driscoll, 157 F.4th 1348 (10th Cir. 2025), the Court of Appeals stated that “an inquiry into the severity or pervasiveness of the complained-of conduct is integral to determining whether any actionable Title VII injury occurred. Stated differently, if Muldrow implicitly abrogated the severity/pervasiveness analysis for a hostile-environment claim (as Russell contends), then Muldrow abrogated the hostile-environment claim. But the Supreme Court has made clear that the severity/pervasiveness inquiry is ‘crucial’ for “prevent[ing] Title VII from expanding into a general civility code.” Russell cites two unpublished appellate rulings in support of its analysis:

The Fourth Circuit, in an unpublished decision, reached essentially the same conclusion about Muldrow as we reach here, although its analysis is brief and it is unclear if Muldrow’s effect on hostile-environment claims was actually a contested issue in that case. See Hansley v. DeJoy, No. 23-1426, 2024 WL 4947275, at *2 (4th Cir. Dec. 3, 2024). The Fifth Circuit, also in an unpublished decision, rejected an argument that Muldrow applies to hostile-environment claims, but its reasoning appears to rest as much on the plaintiff's failure to develop the argument as it does on the underlying substance. See Dike v. Columbia Hosp. Corp. of Bay Area, No. 24-40058, 2025 WL 315126, at *5 n.25 (5th Cir. Jan. 28, 2025).

Russell expressly disagrees with the Sixth Circuit’s analysis in McNeal, stating that “[i]t seems circular to ask ‘whether [the hostile work environment] left an employee ‘worse off respecting employment terms or conditions.’’  By definition, a legally actionable ‘hostile’ work environment is one so bad it ‘alter[s] the conditions of the victim's employment.’ To say that Muldrow changed this for hostile-environment claims is essentially to say that Muldrow gutted the very thing that distinguishes hostile-environment claims from discrete-act claims.”

Hinds v. PSEG Long Island LLC, No. 23-CV-08701 (RER) (LGD), 2026 WL 266010, at *7 n.5 (E.D.N.Y. Feb. 2, 2026): a judge in the Eastern District of New York sidestepped this issue. While noting that Muldrow is not limited to job-transfer cases, “Where Muldrow does not consistently extend is to hostile work environment claims, which Hinds claims in this case. Muldrow expressly does not alter the standard for an adverse employment action under federal retaliation claims, also at issue in this case, which still must be ‘material’ and ‘significant.’” Muldrow, 601 U.S. at 348.

Ziparo v. CSX Transportation, Inc., 160 F.4th 314 (2d Cir. 2025): “The effect of Muldrow on discriminatory hostile work environment claims is still unclear: Post-Muldrow, the Sixth Circuit has held that Muldrow applies to such claims and no longer requires ‘plaintiffs to show ‘significant’ harm.’ McNeal v. City of Blue Ash, 117 F.4th 887, 904 (6th Cir. 2024). But see Dike v. Columbia Hosp. Corp. of Bay Area, No. 24-40058, 2025 WL 315126, at *5 n.25 (5th Cir. Jan. 28, 2025) (summary order) (rejecting the plaintiff's argument that Muldrow changed the severe-or-pervasive test).”

Preach it!

A street preacher sued a city in Mississippi, challenging the ordinance requiring him and other street preachers to limit their speech activities to a designated protest area. After the city prosecuted him for violating the ordinance, and he was found guilty, he persisted in wishing to preach it outside the designated protest area, finding it unsuitable for reaching the proper audience. Can he challenge the ordinance under the First Amendment when he was previously convicted under the same audience? The Supreme Court says he can.

The case is Olivier v City of Brandon, issued on March 20. The exciting issue is whether the First Amendment allows the city to set up a designated protest area for religious (or political) speech like this. But that's not the issue before the Supreme Court in this case. Instead, the Court considers whether this lawsuit is foreclosed under a 1994 precedent that generally says you cannot sue the police for a civil rights violation if that lawsuit would have the effect of undoing a prior criminal conviction arising from the same conduct. That case was Heck v. Humphrey, one of the most complicated cases handed down by the Supreme Court in the last 35 years, at least in my view.

I had a similar issue about 20 years ago, when I represented a man who wanted to post political signs on his property and was found guilty of violating the town's sign ordinance. We then sued to strike down that ordinance under the First Amendment because he wanted to keep posting the signs. The argument was that he could not bring the suit because he could have challenged the constitutionality of that law in appealing from his criminal conviction. I researched the Heck out of that issue, but the courts ruled in out favor without addressing that question.  

This is not a Heck case, the Supreme Court writes, because plaintiff in this case is trying to enjoin future  enforcement of the speech law; he is not trying to effectively undue the prior criminal conviction arising from his past violation of the speech law. He is not challenging the validity of his prior conviction. Rather, he wants the law declared unconstitutional so he can preach where he wants in the future. While success in this lawsuit would necessarily mean that plaintiff's prior conviction was unconstitutional, we can't read Heck in such a literal sense. Justice Kagan writes that judicial language in court rulings cannot bind future cases in all circumstances. The Court now thinks that certain language in Heck was too broad, at least in application to cases like this one. 

A similar issue arose in Wooley v. Maynard, a 1977 Supreme Court case that said New Hampshire could not prosecute a man who put masking tape over the state slogan on the license plate, "Live Free or Die." Because who is the state to tell me what messages can attach to my vehicle? That plaintiff was also convicted of violating the state law before later suing to challenge its constitutionality. The court said Maynard could bring the case because he sought "prospective relief" and was not essentially challenging the prior conviction. Wooley is the guiding rule in the preacher case, not Heck. 

Due process, even for convicted sex offenders

In this due process case, a convicted sex offender charges the state with failing to secure him appropriate housing upon his release from prison. The Court of Appeals finds he has a case and it reinstates his lawsuit, which the district court had dismissed on a Rule 12 motion for failure to state a claim.

The case is Kotler v. Torres, a summary order issued on March 18. Under New York law, when certain sex offenders are released from custody, that release is put on hold until he finds suitable housing under the Sexual Assault Reform Act (SARA). This is where defendant Torres comes in. His his job as a parole officer, was to approve plaintiff's housing and facilitate his release from custody. To that end, plaintiff gave him more than dozen potential addresses where he might live. But, plaintiff says, Torres did not follow up on these leads, delaying his release for over a year.

This is a due process case because the court order entitling plaintiff to release from custody states he "shall" be released once proper housing arrangements are made. That mandatory language (shall) creates a property interest under the Due Process Clause. Under SARA, the Department of Corrections takes on an affirmative role in finding suitable housing. Yet, according to plaintiff, while he gave Torres a list of places to live, Torres did not take meaningful steps to make that happen. That gives plaintiff a claim that Torres was deliberately indifferent to his obligations under the court order, enough for a substantive due process claim under the Fourteenth Amendment. 

What about qualified immunity? That immunity will end the case if the law was not clearly established at the time of the alleged constitutional violation. But the Court of Appeals (Walker, Sack and Lee) says the case law was clear at the time: "state officials may not deliberately disregard court orders governing the conditions of confinement." If the law was clear at the time and defendants violated it, then the case will proceed through discovery. Once discovery is closed and the district court has another opportunity to review the case, things may turn out differently depending on what the evidence shows. But for now, plaintiff has pleaded a viable case.  

Court of Appeals vacates Rule 11 sanctions in Starbucks coffee case

In the movie A Civil Action, a lawyer representing the big, bad chemical company moves for Rule 11 sanction against the plaintiff's mass-tort lawyer played by John Travolta. The story takes place in the early 1980s, before Rule 11 became a prominent fixture in the Federal Rules of Civil Procedure. Travolta's character told the judge he had to look up Rule 11 to see what it said. The judge said that he did the same. Rule 11 is now well-known, and lawyers fear being hit with Rule 11 sanctions, which can be costly and wreck your reputation. The lawyer in this case was sanctioned, but the Court of Appeals finds the trial court abused its discretion, and the sanctions are gone.

The case is Sheehan v. Starbucks, a summary order issued on March 17. This consumer deception case alleges that the coffee company misled the public in claiming it was "Ground 100% Arabica Coffee." The argument is that the coffee also contained potassium, thus fooling the unsuspecting consumer. The district court sanctioned the plaintiff for making the frivolous claim that the 100% thing was false.

When a trial court sanctions the lawyer under Rule 11, it must be convinced the lawsuit was completely frivolous and filed in bad faith, and/or without any factual support. Courts are reluctant to impose this punishment to ensure that lawyers will bring innovative lawsuits and zealously represent their clients. The Court of Appeals writes that "judges should refrain from imposing sanctions where such action would stifle the enthusiasm or chill the creativity that is the very lifeblood of the law."

Sanctions were not warranted here, says the Second Circuit (Raggi, Nathan and Furman [D.J.]), even though the trial court determined that the "Ground 100% Arabica Coffee" advertisement was so obviously incorrect as to be frivolous. While the district court had a better interpretation than the plaintiff's lawyer, other courts around the country have said cases like this are not frivolous.

the Seventh Circuit has allowed similar claims about additives in parmesan cheese to proceed past a motion to dismiss, explaining that “certainly a plausible reading” of the phrase “100% Grated Parmesan Cheese” “is that ‘100%’ applies to all three words: it's all cheese; all the cheese is Parmesan, and it's all grated.” Bell v. Publix Super Mkts., Inc., 982 F.3d 468, 476-77 (7th Cir. 2020). And the First Circuit, in a case featuring nearly identical language to that present here, observed that it would be “by no means unreasonable” for a consumer to read “Freshly Ground 100% Arabica Coffee” to mean “that the package contains only coffee (and Arabica coffee at that), with no nuts (or anything else).” Dumont v. Reily Foods Co., 934 F.3d 35, 41 (1st Cir. 2019).

The district court also sanctioned the plaintiff's lawyer for not sufficiently investigating the facts prior to filing the lawsuit. But the record shows he reviewed a report about a study into the potassium levels in the coffee, and he found multiple newspaper articles reporting on these laboratory tests. He then sent coffee samples to a different laboratory for independent testing. This evidence undermines any finding of bad faith by the plaintiff's lawyer. While this evidence was not attached to the lawsuit, plaintiff was not required to "plead evidence" in filing the lawsuit. 

For the plaintiff's lawyer, the Rule 11 sanctions are gone. So is the contempt of court finding that the district court imposed, seemingly an addendum to the Rule 11 order. For the plaintiff's lawyer, even though he lost the case on the merits, yesterday was a very good day. 

 

Another false arrest case bites the dust

For the second time this month, the Court of Appeals has reversed the trial court in finding that false arrest plaintiff cannot sue law enforcement due to qualified immunity -- even though charges against the plaintiff were dropped.

The case is Sarcaza v. City of New York, issued on March 11. Plaintiff was arrested for allegedly assaulting a teenage girl on a New York City bus. While video footage of the encounter was inconclusive, the girl was in distress at the time and later identified the plaintiff from a photo array. The case against plaintiff was dismissed on speedy trial grounds; hence this false arrest lawsuit.While the district court allowed this case to proceed to trial on the basis that the video footage did not show physical contact between plaintiff and the girl, as well as some inconsistencies in the girl's account, the Court of Appeals (Chin and Perez) reverses, on grounds familiar to Section 1983 lawyers who handle these cases.

The police can prove they had probable cause to arrest if the evidence was reasonably trustworthy that the guy committed a crime. If so, then no false arrest lawsuit. The low probable cause standard kills off many such lawsuits. But we also have to consider qualified immunity, which also lets the police off the hook if they had "arguable probable cause," which means that even probable cause did not exist, reasonable jurors might find the officers had a good faith basis to make the arrest anyway.

Here is the takeaway quote: "Unless exculpatory evidence or circumstances that raise doubts as to the alleged victim's veracity arise, probable cause is present where a police officer relies on such victim's identification of the suspect and statement of the alleged crime." In other words, to win a false arrest case against the police, the plaintiff has to essentially show the police had nothing on him, a lack of evidence that makes it clear they were setting up the plaintiff for arrest or just did not know what they were doing. You don't need "hard certainties" or a belief that, more likely than not, a crime has been committed.

Under these principles, plaintiff loses the case even before trial. The Court of Appeals writes:

Based on the undisputed facts in the record, a reasonable police officer in [Detective] Friedman’s position could have found probable cause that Sacaza had touched the Complainant inappropriately. While the Complainant's statements and identifications of Sacaza served as Friedman's principal basis for finding probable cause, the MTA Footage and other information provided objective evidence for a reasonable police officer to arrest and charge Sacaza.

The record contains the following undisputed evidence to support the conclusion that Sacaza sexually assaulted the Complainant: (1) the Complainant reported the alleged assault to her school and the police almost immediately; (2) the Complainant identified Sacaza as her assailant on two separate occasions, including once in-person; (3) Friedman learned that Sacaza was a person of interest in other public lewdness incidents; (4) the MTA Footage shows the Complainant being uncomfortable and looking back several times while Sacaza is positioned directly behind her for more than a minute; (5) the MTA Footage shows that the Complainant felt the need to and did take videos of Sacaza, which she later shared with Friedman; and (6) the MTA Footage shows that the Complainant was so visibly disturbed by Sacaza that a nearby passenger felt the need to console her. Based on this evidence, a reasonable police officer could have believed that Sacaza committed a crime justifying arrest.

 

False arrest case is dismissed on qualified immunity grounds

False arrest cases are often dismissed prior to trial because the police are able to prove they had probable cause to arrest the plaintiff. Even if the charges against the plaintiff are ultimately dismissed and the criminal process reaches that endpoint, the police can still avoid liability if they had arguable probable cause, a qualified immunity concept warrants dismissal of the case when the police reasonably believed, even if mistakenly, that the plaintiff had committed a crime. In this case, the federal trial court said the jury may rule in the plaintiff's favor on the false arrest claim, but the Court of Appeals nixes the case entirely on qualified immunity grounds.

The case is Jin v. City of New York, issue don March 12. It took the Court of Appeals nearly two years to decide this case, owing to complexity of the issues and the lengthy dissent from Judge Kearse.

It all started when the police arrived at the plaintiff's home after a 911 call reported a domestic violence dispute. The plaintiff was arrested for assault and harassment, but the charges were dropped. Upon arriving at the house, the police arrested plaintiff after her son reported that she had assaulted a family member, who pointed out his injuries to the police and simulated how the plaintiff had assaulted him. Plaintiff denied any wrongdoing and said that she was the assault victim. The police never interviewed the neighbors even though plaintiff said they would exonerate her. 

After the charges against plaintiff were dropped, she sued the police for false arrest. The trial court said plaintiff had enough evidence to win the case, but the Court of Appeals reverses, and the case is over. The Second Circuit (Bianco, Perez and Kearse [dissenting])  notes that the police can make an arrest upon "reasonably trustworthy information" that the plaintiff had committed a crime, and "an identified citizen informant is presumed to be reliable" in this context. So, even if the son was not present for the alleged assault, and had merely reported what the victim had told him, that was enough for probable cause, as the victim did show the police his injuries and explained how the plaintiff had allegedly attacked him. "Reasonable officers could disagree as to whether there was probable cause to arrest based on the reasonably trustworthy information relayed to the Officers," "which was simultaneously corroborated [by the victim] demonstrating the attack and displaying his injuries."

The case is significant for the Court of Appeals' holding that domestic violence cases are held to the same false arrest standards as every other case, and there is no special rule that the police need to be more skeptical when a domestic violence victim reports a crime. The district court said the inherent "relational dynamics" of alleged domestic disputes require additional inquiry by the police. But "the mere fact that a victim, eyewitness, or informant is reporting criminal activity arising from a domestic dispute does not, by itself, raise a doubt as to the witness's veracity sufficient to undermine the presumption of reliability that officers are permitted to attach to such witnesses."