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

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

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

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

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

Contract-killer's confession is admissible at trial

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

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

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

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

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

Rolling Stone not liable for allegedly defamatory statements

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

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

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

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

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

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

Inmates have due process rights, too

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

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

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

 

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

Speculation will not get you a trial in a discrimination case

This plaintiff asserts she was denied commissions while working at a car dealership because she was pregnant. The argument was that her manager was delaying her commissions because she lost access to a computer program that allowed her to quickly process credit checks for prospective customers, forcing her to rely on her sales manager to process the checks on her behalf, but he intentionally delayed doing so, costing her customers.

The case is Stidhum v. 161-10 Hillside Auto, a summary order issued on March 18. The Court of Appeals holds that plaintiff does not have a discrimination case. While the trial court held that plaintiff did not actually sustain an adverse action even under the Supreme Court's recent case, Muldrow v. City of St. Louis, which relaxed the adverse action standards under Title VII, the Court of Appeals sustains summary judgment against her on different grounds: plaintiff cannot prove she was treated any differently than her male coworkers.

The Second Circuit (Calabresi, Nathan and Vargas [D.J.]) reiterates that one way to prove discrimination is by comparing your adverse treatment to the male workers. If they enjoyed favorable treatment, then you can win the case on the basis that you were singled out because of sex. But the record shows that the manager with access to the credit check software took vacation and no one else at the dealership had the password. This meant that plaintiff "was placed in the same position as every other salesperson at the dealership." Everyone suffered a delay in recovering their commissions. Plaintiff tries to get around this by arguing that the male salespeople sold more cars at this time, which can only mean they must have experienced shorter wait times for their credit checks. This may be true, but you need evidence to prove it. That's what summary judgment motions are all about: what evidence do you have that can justify a verdict at trial? Plaintiff could only speculate that "their customers were taken or tended to a little more promptly." That kind of speculation will not be enough in opposing a summary judgment motion.

Plaintiff argued that since the dealership destroyed the weekly sales records, thus preventing her from proving her case, that kind of spoliation argument will not work here because the records were destroyed prior to plaintiff's filing this lawsuit. There was therefore no bad faith in destroying the records. Had plaintiff been able to prove such bad faith, she might have gotten an "adverse inference" in her favor on this point.

Some guidance on authenticating medical records at trial

What we learn from this case is that evidentiary rulings at trial are difficult to challenge on appeal. The standard of appellate review is “abuse of discretion,” which is deferential to the trial court. While you can get a new trial based on the district court’s evidentiary rulings, that is more true in theory than in practice. Few parties win a new trial based on an objectionable evidentiary ruling.

The case is Penzo v. Consolidated Edison of New York, a summary order issue on April 2. This disability discrimination case went to trial in the Southern District of New York. The plaintiff prevailed at trial, as the jury found she was terminated from her position in retaliation for engaging in protected activity under the New York City Human Rights Law. The jury awarded approximately $200,000 in damages for lost wages, but no damages for pain and suffering. The argument on appeal was that the trial court erred in disallowing plaintiff from introducing her medical records that would have proved she sustained damages for pain and suffering resulting from the retaliation.

The trial court declined to admit the medical records because they were not authenticated. The trial judge has to ensure the medical records are true and accurate, that is, they are authentic. Otherwise, the records are inadmissible hearsay. The way to do that is to have the doctor or someone affiliated with the medical practice testify at trial that the records are authentic. Or you can get a written certification that the records are real. But, as the Court of Appeals states, “Penzo did neither of those things.”

Plaintiff argues on appeal that, as the patient, she can authenticate the medical records: that she could have laid the necessary foundation for the documents, and/or the trial court should accepted her belated certifications that the documents were authentic. But the Court of Appeals (Kearse, Lee and Komitee [D.J.]) disagrees. Parties cannot authenticate their own medical records. Trial courts have said as such, and the Court of Appeals – which I guess has never squarely ruled this way – cites those district court cases to support its holding in this case. We don’t see too many district court cases cited in appellate rulings, but the Second Circuit will do so when it thinks the rulings make sense and there is nothing at the appellate level to that effect. The district court rulings are logical to the Court of Appeals because “authentic medical records are not created by the patients themselves, nor do they maintain them.” Plaintiffs are not in a position to tell the jury that the records are real.

What about the second argument: that the plaintiff belatedly but nonetheless offered a written certification that the records are authentic? The Court of Appeals says the trial court did not abuse its discretion in rejecting the late certifications. “[A] district court is not required to permit a plaintiff to present evidence in clear violation of the Rules of Evidence. And the relevant evidentiary rule clearly requires that certifications must be provided to the opposing trial ‘before the trial." Since plaintiff “did not submit her certifications until trial was well underway . . . the district court did not abuse its discretion by declining  to accept those certifications and excluding the evidence in question.”

Plaintiffs cannot sue Sean Combs anonymously

These plaintiffs sued Sean "Puffy" Combs, the famous hip-hop artist, claiming various acts of sexual abuse dating to 1991-1997. These claims were facilitated by a recent law in New York that reopened the statutes of limitation for otherwise stale sex abuse claims. But this appeal does not determine whether Combs is liable. Rather, it addresses whether plaintiffs may litigate their claims under pseudonyms, i.e., Jane Doe. They cannot.

The case is Doe v. Combs, a summary order issued on March 17. The district court said the plaintiffs have to litigate these cases under their real names, not Jane Doe aliases. The Court of Appeals (Park, Nardini and Kahn) affirms. The federal rules assume that plaintiffs must use their real names, but there are exceptions for John Doe pseudonyms if the plaintiffs can meet certain criterion, including whether the cases involve highly sensitive subject matter, whether identifying themselves poses a risk of retaliation to that party or to innocent non-parties, whether the defendant will suffer any prejudice from anonymity, etc. The Court of Appeals articulates a 10-part test, making this inquiry unpredictable.

While plaintiffs raise claims involving a highly sensitive and personal nature, they cannot prove any risk of harm in using their real names, such as possible retaliation, and they cannot show any mental harm if they cannot proceed as Jane Does. Instead, they assert threats of retaliation made to other litigants, but not themselves, and while one plaintiff said that Combs threatened her with violence when he assaulted her, that was more than three decades ago, the Court notes, and she does not identify any present threat of physical harm. Do you see how hard it is to proceed under a pseudonym?

Another reason the plaintiffs lose this appeal is that if they proceed anonymously, Combs would be highly prejudiced "because of likely asymmetries in fact-gathering." Courts have held that "concealing the name of a party could deprive a litigant and the court of the chance that a yet unknown witness would . . . upon learning of the case, know to step forward with valuable information about the events or the credibility of witnesses." The loss of such witnesses would be particularly prejudicial in this case because the events of this case took place more than 30 years ago, and the case would "be difficult to defend even with information about Plaintiffs' identities." In other words, while the defendants in this case do know who the plaintiffs are, the public does not, and the public might have evidence relevant to the case.