Thursday, February 28, 2019

Inmate repels qualified immunity in 2d Circuit

Yes, inmates have rights. No, they are not easily proven. Even if the inmate gets shafted, the correction officers and prison doctors can invoke qualified immunity, which dismisses the case unless plaintiff can show the defendants violated clearly-established rights in light of the facts of the case. This inmate survives that formidable hurdle, the bane of all plaintiffs' civil rights lawyers.

The case is Neary v. Wu, a summary order issued on February 19. After plaintiff began experiencing severe pain in his breast and found irregular lumps, defendants prescribed medication that did not alleviate the pain, denied him a recommended surgical consultation to consider removal of the breast tissue, refused him a soy-based diet designed to reduce his symptoms and abruptly stopped a narcotic pain medication that caused withdrawal symptoms. This deliberate indifference claim proceeds under the Eighth Amendment.

Plaintiff can proceed with his case, the Second Circuit (Winter, Pooler and Abrams [D.J.]) says, because the case law is clear that  "prisoner-plaintiff establishes a 'serious medical need' where she suffered 'chronic pain the magnitude of which probably falls somewhere between annoying and extreme.'" That case is Brock v. Wright, 315 F.3d 158 (2d Cir 2003). Another case, McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004), holds that doctors who fail to run required tests despite obvious symptoms, fail to initiate necessary and apparent treatment, fail to arrange follow-up visits despite doctor's orders and deny treatment pursuant to flawed policies cannot invoke qualified immunity, since these derelictions can support a deliberate indifference case.

Plaintiff satisfies these standards, at least for now, at the pleading stage, where all facts are deemed true. Maybe defendants can argue qualified immunity again once discovery is over, for for now this case moves forward.

Wednesday, February 27, 2019

Circuit grants habeas in murder-for-hire case based on recanted testimony

This habeas corpus case is quite complicated. It started with a drive-by shooting in 1993 and various eyewitnesses who said the defendant was guilty of a murder-for-hire. It ends with the U.S. Court of Appeals more than 25 years later finding the defendant was denied a fair trial. Along the way, we have some interesting holdings.

The case is Fernandez v. Capra, decided on February 22. Under the federal habeas law, state court convictions cannot be attacked as unconstitutional in federal court unless the state court unreasonably applied settled Supreme Court authority. Here, we have an arresting officer who, it turns out, was under investigation for selling drugs at the time of the criminal trial, and eyewitnesses who recanted their testimony post-trial.

As for the cop, he was accused of selling cocaine to another officer before he was actually hired as an officer. The prosecution did not tell the defendant in the case about the officer's alleged drug dealing until a few days after defendant was found guilty of murder, on the basis that authorities were skeptical about the drug-dealing allegations. But, the Second Circuit says, withholding that Brady material until after the defendant was convicted in this murder case was unconstitutional, as it was up to defendant and his lawyer -- and not the prosecution -- to exercise judgment in determining whether the defendant should make use of it on cross-examination. However, that error was harmless in the overall scheme of things because the bad-officer's testimony was not critical to the case against Fernandez.

But Fernandez has other arguments in seeking a new trial. Two eyewitnesses recanted their testimony post-trial, claiming the drug officer coerced their identification testimony. The Second Circuit agrees that one brother's recantation was incredible because he was "extremely evasive" at the post-trial hearing on this issue. As for the other eyewitness, Canela, he claimed post-trial that Fernandez was not the shooter and he had never seen him before in his life, contrary to his trial testimony. He said he felt pressure from the detectives to lie at the trial. The Court of Appeals gives little weight to the criminal court's conclusion that Canela tried too hard to be convincing, and the Circuit instead says that Canela (who was 18 at the time) overall gave credible testimony at the post-trial hearing as to why he lied and what he actually saw on the day of the shooting and how the detectives pressured him into identifying Fernandez. As the Second Circuit says there is a good chance Canela's perjury made a difference at trial, Fernandez wins his habeas petition, as the state court's rejection of Canela's recantation testimony was an "unreasonable determination of the facts in light of the evidence presented" under the habeas statute. Having read many Second Circuit habeas rulings over the years, I cannot remember the last time someone prevailed at the Court of Appeals on this basis. I would say Fernandez had some damned good lawyers working for him in his appeal.

Tuesday, February 26, 2019

Some guidance on naming John Doe defendants in Section 1983 cases

One of the pitfalls in handling civil rights cases under Section 1983 is that you have to identify the correct defendant, usually a police or correction officer. It is not enough to name the officer's employer, as Section 1983 does not recognize respondeat superior liability, that is, the employer is not automatically liable just because one of its employees violated the law. That brings us to the pitfalls of naming John Doe defendants as placeholders until the plaintiff can figure out who the real defendant is.

The case is Ceara v. DOCCS Officer Joseph Deacon, issued on February 21. Under Barrow v. Weathersfield Police Dept., 66 F.3d 466 (2d Cir. 1995), you have to formally identify the John Doe defendants in your complaint within three years of the civil rights violation (which is the statute of limitation in New York). This is so because identifying the John Doe defendant is the equivalent of adding a new party , and new parties have to be added within the statute of limitations. On the other hand, if you are correcting a mistake in the caption (i.e., you named the wrong person), then the statute of limitations stopped running the day you filed the lawsuit provided the real defendant knew or should have known you intended to name him as the defendant all along. Further complicating things, in Krupski v. Costa Crociere, 560 U.S. 538 (2010), the Supreme Court said that "a plaintiff's knowledge of the existence of a party does not foreclose the possibility that she has made a mistake of identity about which that party should have even aware." As Krupski is a mistaken-defendant case and not a John Doe replacement case, it does not overrule Barrow. I know this is all very confusing, but if you handle Section 1983 cases, I also know you are reading this very attentively.

What happened here is that Plaintiff Ceara was an inmate at Fishkill Correctional Facility. He claims a correction officer physically assaulted him for no good reason. As plaintiff as tumbling down the concrete staircase as a result of this assault, he did not have the wherewithal to look at the officer's name tag to determine who he would name in his Section 1983 lawsuit. So plaintiff named this defendant "John Doe," noting further in the caption that the bad-guy worked on a particular shift on the day of the assault and that the bad-guy's brother -- last name "Deagan" -- also worked at the prison. When plaintiff finally got the correct name, "Joseph Deacon," he identified him in the amended complaint, but only after the three-year statute of limitations expired. The district court said this was too late, that plaintiff was simply naming the John Doe defendant outside the three-year limitations period. But the Second Circuit (Parker, Cabranes and Matsumoto (D.J.)), disagrees and reinstates the case.

The Second Circuit holds this is not really a John Doe placeholder case but a mistake case, as plaintiff did provide some of the defendant's identifying characteristics in the caption and almost got the last name right, referring to John Deacon as "Deagan." Unlike the John Doe cases, no new party was added when plaintiff amended the complaint. This means the amended complaint relates back to the original complaint, and plaintiff has his lawsuit back.

Monday, February 25, 2019

Supreme Court expands scope of excessive fines clause

This may be the case of the year in the Supreme Court, barring some Mueller-related case involving Trump. The Supreme Court holds that the excessive fines clause of the Eighth Amendment applies to the states and not just the federal government.

The case is Timbs v. Indiana, issued on February 20. You probably didn't know the excessive fines clause did not apply to the states prior to this decision. You probably didn't even know we had an excessive fines clause to begin with. But we do, and it prohibits the government from really sticking it to criminal defendants, such as in this case, where Timbs pleaded guilty in state court to drug dealing and the government took his Land Rover SUV, which he purchased from a family inheritance but which the authorities said he used to distribute drugs. The SUV cost $42,000, more than four times the maximum fine.

When the Bill of Rights were originally drafted in 1791, they only applied to the federal government. The states were free to do what they wanted without any constraints under the Bill of Rights, which include the rights of free speech and religion, our beloved Second Amendment, and all the criminal procedure protections set forth in the Fourth through Eighth Amendments. After the Due Process Clause of the Fourteenth Amendment was ratified following the Civil War, the Supreme Court began to incorporate parts of the Bill of Rights into that amendment, holding that they regulate state behavior, which is why small towns cannot violate free speech even though the First Amendment explicitly regulates Congress. Incorporation has been a slow process, as the Court only recently held the Second Amendment regulates state and local governments. It now gets around to the excessive fines clause of the Eighth Amendment, and as Notorious RBG says, "for good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties," such as when excessive fines are used to retaliate against political enemies.

Justice Thomas concurs, stating that what really incorporates the excessive fines clause against the states is the Privileges and Immunities Clause of the Fourteenth Amendment, which states, "no state shall make or enforce any law which abridge the privileges or immunities of citizens of the United States." While in Thomas' view the Court has narrowed the scope of the P & I clause, litigants have had to enforce rights against the states by other means, including the Due Process Clause. The problem with that, Thomas says, is that the Due Process Clause only speaks to "process" and the Court has "struggled to define" what substantive rights it actually protects. What happens under this vague constitutional provision is the Court has little to work with in defining rights, creating some of the Court's most notoriously incorrect decisions," including Roe v. Wade and Dred Scott v. Sandford. Yes, Justice Thomas ranks Roe among the worst cases ever, along side Dred Scott, considered the most racist and worst Court ruling of all-time.

Sunday, February 24, 2019

Justice Thomas wants the Supreme Court to revisit cornerstone of free speech law

Justice Thomas wants the Supreme Court to reconsider its holding in New York Times v. Sullivan, the 1964 landmark ruling that says public officials cannot sue people for libel unless they can prove actual malice motivated the speaker to utter falsehoods about him. Since Sullivan makes it almost impossible for public officials to bring libel actions, and it is the bedrock of political criticism in this country, Thomas' proposal would represent a dramatic change in consititutional law.

Justice Thomas issued his decision in McKee v. Cosby on February 19, concurring in the Supreme Court's decision not to hear a libel case brought against one of Bill Cosby's rape accusers. While Thomas agrees the Court shouldn't take this particular case, he uses this opportunity to lay out a roadmap for overturning Sullivan, which would make it easier for public officials to sue their critics if they got the facts wrong. Thomas' musings on the correctness of the Supreme Court's public figure libel law is consistent with his view that many constitutional issues must be decided in accordance either with what the framers had in mind when they drafted the Constitution in the 18th Century or what the the state of the law was at the time.

Sullivan holds that, to win their libel suits, public officials must prove the speaker got his facts wrong because of actual malice, a notoriously high burden of proof. Actual malice means more than a simple mistake in getting your facts wrong; it means reckless disregard for the truth, or the speaker is just making it up to hurt someone else.

As Justice Thomas sees it, the framers of the First Amendment did not intend to graft an "actual malice" standard into libel cases, and libel cases were not even constitutionalized until 1964, when Justice Brennan famously said the new standard in Sullivan was necessary to ensure robust political debate in the United States. Yet, Thomas says, Sullivan "and the Court's decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own 'federal rules' by balancing the 'competing values at stake in defamation suits,'" an approach that does not comport with the original meaning of the First Amendment, ratified at a time when public figures did not have to satisfy any heightened liability standard in order to win their cases. Back then, all public officials had to do was to prove the offending statement was false and "subjected him to hatred, contempt, or ridicule." As legal thinkers saw it back then, Justice Thomas says, libels against public officials were considered even more serious than libels against the common man, "because the people may be deceived and reset the best citizens to their great injury, and it may be the loss of their liberties."

Thomas' historical research does say that political critics did have "a privilege to comment on public questions and matters of public interest," which extended "to the public conduct of a public man" and to the character of public officials "so far as it may respect his fitness and qualifications for the office." But this privilege would not let all critics off the hook; the public official could still win the case if the facts were false, "and the privilege did not afford the publisher an opportunity to defame the officer's private character."

No other Justice joins Thomas' opinion, making him a lone wolf on reconsidering Sullivan. He does quote from the late Justice White's prior criticisms of Sullivan, even though White had joined the Sullivan opinion. Justice White apparently reconsidered support for Sullivan in his later years. While Thomas' opinion is a far cry from an actual Supreme Court ruling that would over turn a 50+ year of robust political criticism in the United States, were the Court to adopt his views on this issue (and I doubt it ever will), it would change political dialogue in this country forever.

Thursday, February 21, 2019

Inmate lawsuit is good enough for Rule 8 pleading requirements

One of the conservative Supreme Court justices said years ago that the problem with pro se inmate lawsuits is that the inmates sometimes become litigation machines who file lawsuit after lawsuit because they have nothing better to do. That may be, but sometimes these cases have merit. At a minimum, sometimes these cases are sufficiently pled so the inmates can proceed with their cases. In this case, the Second Circuit says the inmate's complaint is good enough for discovery.

The case is Harnage v. Lightner, issued on February 15. Plaintiff is an inmate in state prison in Connecticut. He wants to sue over the deliberate indifference to his serious medical needs. The district court said the complaint was not sufficiently detailed and did not satisfy the rule that lawsuits must place the defendants on notice of the claims, but the Court of Appeals (Calabrese, Cabranes and Chin) says the plaintiff actually states a claim.

Under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain "a short and plain statement of the claim showing the pleader is entitled to relief." Under Second Circuit law, the plaintiff must at a minimum "disclose sufficient information to permit the defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery."

While the complaint in this case does not provide definite or specific dates on which plaintiff's requests for medical treatment were made, or any dates when anyone at the jail ignored his requests, the amended complaint "substantially complies" with Rule 8 because it "identifies discrete defendants and the actions taken by defendants that purportedly violated Harnage's Eighth Amendment rights." In particular, plaintiff alleges that he sought treatment from named staff members and that he did not receive effective treatment for his medical condition, i.e., providing the right prescriptions he had been promised. The failure to provide dates is not fatal under Rule 8 where, as here, the plaintiff does not have access to his medical records. So, while the complaint is not great, "it is not the incomprehensible 'labyrinthian prolixity of unrelated and vituperative charges' that Rule 8 was intended to curb."

Tuesday, February 19, 2019

2d Circuit grants habeas petition in murder case

Convicted felons are allowed to file habeas corpus petitions, which claim their state-court convictions were unconstitutional. But these petitions are hard to win, as the case has already been through the state court appellate process, and federal judges are required by law to give state court judges some leeway in interpreting the Constitution. So it's always news when the Second Circuit rules that a conviction was in fact unconstitutional, which is what happened here in this homicide case.

The case is Orlando v. Nassau County District Attorney's office, issued on February 11. The district court rejected the habeas petition, but the Court of Appeals holds that trial errors in state court denied Orlando's clearly-established constitutional right under the Sixth Amendment's confrontation clause.

The jury said Orlando was guilty over his role in the murder of a man, Calabrese, when Orlando and another witness Jeannot, went pay Orlando his huge gambling winnings. Jeannot told the police that Orlando had paid him to kill Calabrese. At Orlando's trial, the police testified that Jeannot himself was the killer, but that Orlando had paid him. Jeannot did not testify at the trial, however, so when the police testified about this "admission," the trial court gave the jury a limiting instruction, telling them that the testimony was only relevant in understanding why Orlando then gave a different account of what happened on the day of the murder.

The Second Circuit (Droney and Jacobs, with D.J. Shea in dissent) says the trial court clearly violated the confrontation clause and that the limiting instruction was not enough to ensure Orlando got a fair trial. After all, this hearsay account pinned the murder on Orlando. Hey, you can't throw a skunk in the jury box and ask the jury not to smell it. The Supreme Court has already stated that "when a non-testifying witness's confession 'expressly' implicates the defendant, 'the risk that the jury will not, or cannot, follow instructions to limit its consideration of the evidence for a proper purpose is so great, and the consequences of failure to vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.' When a jury hears such express incriminations, even if given a 'clear' limiting instruction, 'the effect is the same as if there had been no instruction at all.'"

Monday, February 18, 2019

Circuit declines en banc review in no-fly religion case

The Second Circuit almost never hears cases en banc, in which all the judges on the court and not just a three-judge panel convene to decide a case of exceptional importance. But when the court declines to hear a case en banc, the judges sometimes issue decisions of their own either defending the decision not to rehear the case or complaining that the initial three-judge ruling was wrong and the court must sit en banc to correct it. This time around, we have some en banc smackdowns on the issue of when you can sue the federal government over the religiously-motivated placement on the "no fly list"

The case is Tanvir v. Tanzin, issued on February 14. The initial panel said the plaintiffs could sue the government under the Religious Freedom Restoration Act (RFRA), which provides damages for government-sponsored religious discrimination. The court said the plaintiffs could sue the government which placed them on the no-fly list because they would not violate their Muslim principles in refusing to serve as FBI informants to spy on their fellow Muslims. This case has Supreme Court written all over it, as it challenges a federal program and the Court of Appeals weighed in on an issue involving national security and no-fly lists. These en banc opinions probably enhance the certiorari value.

The judges who did not want en banc review and defend the three-judge ruling (Pooler and Katzmann) write that the pro-en banc judges are wrongly characterizing the initial panel ruling as a Bivens case. Under the Bivens doctrine, you can sue the federal government for constitutional violations only in rare instances. But, these judges say, this is not a Bivens case. It's a RFRA case. And since RFRA contains an express right of action with an express provision for "appropriate relief," the initial three-judge panel faithfully applied that statute in holding the plaintiffs could sue the federal government for damages over the religiously-motivated no-fly determination.

Writing for the pro-en banc judges, Judge Jacobs (joined by Judges Cabranes and Sullivan) writes that a comparable religious discrimination statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies to the states, does not provide for a private right action against the government for money damages, as per Washington v. Gonyea, 731 F.3d 143 (2d Cir. 2013). The three-judge holding in Tanvir undermines the Washington holding, Judge Jacobs says, and the three-judge panel essentially created a new Bivens cause of action, which the Supreme Court has forbidden. The end result, Judge Jacobs says, is that government officials will be gun-shy in discharging their duties out of fear of litigation, and they cannot always rely on qualified immunity, such that "the safest course for a government employee in doubt would be to avoid doing one's job, which is not a choice in need of encouragement." Of course, that might be the case if the damages come out of the government employee's pocket, but the government usually pays out the damages award, or else -- let's face it -- no one would work for the government. Jacobs punctuates his opinion with a final slap: "the panel opinion is quite wrong and actually dangerous."

Friday, February 15, 2019

Redacted court ruling vacates guilty plea based on ineffective assistance of counsel

The Court of Appeals has ruled that a criminal defendant was denied the effective assistance of counsel who failed to tell him about the immigration consequences of his guilty plea. What makes the case interesting is that (1) portions of the case are redacted and (2) the federal government flip-flopped on whether to support the defendant's arguments or not.

The case is Doe v. United States, issued on February 14. The facts are not that unusual. Doe pleaded guilty to a crime but his lawyer, who was not well-versed in immigration law, did not tell him he faced mandatory deportation if he pleaded guilty. The case reaches the Second Circuit because the district court rejected the ineffective assistance argument. The government initially opposed Doe's application for coram nobis relief. Then it changed its mind and asked the district court to rule in Doe's favor. But then, on appeal, the government came out against Doe's position. This troubles the Court of Appeals (Katzmann, Kearse and Chin). The unspoken reality is this flip-flop was probably a Trump administration maneuver. But the Court of Appeals does quote from former Attorney General Robert Kennedy, who said the Justice Department is supposed to seek justice and not just convictions. In the end, based on how the Court views the record and Doe's desire to clear his name and fight the charges, had Doe known about the immigration consequences of his plea, he might not have taken the plea. 

Portions of the Second Circuit ruling are blacked out, so we don't know (1) the identity of lawyers representing Doe or even the federal government; (2) which district court this case originated in; (3) what crime Doe pleaded guilty to; (4) the dates certain things in the case happened

Thursday, February 14, 2019

No injunction for inmate who remains in administrative segregation

This is a tough case for the Second Circuit, asked to overrule prison officials who plan to keep an inmate confined in "administrative segregation" for the foreseeable future even though he has not committed a violent incident in jail in more than 20 years. The Court of Appeals rules against the inmate.

The case is H'Shaka v. O'Gorman, a summary order issued on February 13.While the plaintiff has not committed a violent infraction in prison in more than 20 years, he did kill someone for no apparent reason before he turned 18, he attacked a correction officer with a razor blade, severely slashing his face, and committed four other assaults between 1996 and 1999. He remains in administrative segregation under a regulation that permits that if officials think his "presence in general population would pose a threat to the safety and security of the facility." That means plaintiff is in his cell 23 hours a day without access to prison programs or worship, and his one-hour-a-day recreation is spent in a cage.

Plaintiff sought an injunction in the district court, claiming the continued confinement violates the Constitution. The district court denied the injunction and the Second Circuit (Katzmann, Hall and Lynch) says plaintiff cannot satisfy his heavy burden in showing the trial court clearly erred. The leading case in this area is Proctor v. LeClaire, 846 F.3d 597 (2d Cir. 2017), which requires prison officials to meaningful review his segregated status under the Due Process Clause. This involves a balancing test, with prison security on one side of the equation. The decisionmakers submitted declarations stating they are open to freeing up plaintiff inside the prison at some point in the future, but they were never cross-examined, "so we are in a poor position to judge their credibility at this stage, let alone to second-guess the district court's assessment," the court says. In any event, it does look like the jail considered plaintiff's recent behavior.

While the Second Circuit notes "the well-documented and devastating psychological and physical effects that prolonged isolation can have," the record does not speak to the specific harms that plaintiff will face if he remains in "ad seg," as they say in the prison world. Overall, maybe the record will shape up differently in discovery, the Court of Appeals says, but for now, plaintiff is not entitled to a preliminary injunction.

Thursday, February 7, 2019

Wrongful discharge to refusing to drive too-heavy truck on interstate highway

This case acquaints us with a wrongful discharge claim that most of us are not familiar with. Under the Surface Transportation Assistance Act, a trucking company cannot fire a truck driver for refusing to drive a truck on an interstate highway that exceeds the federal weight limit. That's what happened to the plaintiff in this case, and a jury in New Haven awarded him compensatory and punitive damages. That verdict is upheld on appeal.

The case is Kennedy v. Supreme Forest Products, a summary order issued on February 6. Plaintiff was directed to drive a truck that exceeded 80,000 pounds. The truck was carrying a load of mulch. This was in April 2014; springtime is a good time to deliver mulch. But this was too much mulch, so plaintiff objected, and was fired as a result. The jury awarded him nearly $12,000 in compensatory damages and $425,000 in punitive damages, which the trial court reduced to $250,000, the statutory cap. The company challenges liability and the size of the punitive damages award.

Management says the verdict was rooted in speculation because plaintiff never testified that he would have operated the truck on an interstate highway. But there was no speculation, the Court of Appeals (Cabranes, Calabresi and Wesley) says, because plaintiff testified that he understood the federal weight limitation applied only to the "federal highway system" and he did not want to break "the overweight law." Also, "common sense and geography" supports the verdict, says the Second Circuit. Two of the judges on the panel are from Connecticut, so this was the wrong panel to suggest the jury got it wrong on this issue. Testimony demonstrated the plaintiff refused to transport two loads, originating in Southington, Connecticut and destined for Bridgeport and Hartford. The most direct route for these trips involves the interstate highway system, and "a local jury (as this one was) would not even have needed a map" to know this. I guess if you live in the area, everyone knows this. As Judge Calabresi said at oral argument, "Connecticut only has so many highways" and it is unlikely plaintiff would have driven on "dirt roads."

What about the punitive damages? The $250,000 is the cap under federal law for these claims, and the jury was able to find that defendant was motivated by greed and repeat offenses. As for liability for punitive damages, the evidence shows defendant tried to cover up what happened, telling HR that plaintiff had quit his job (and was not fired). And, the employee handbook discusses the applicable regulations, demonstrating that it knew the law, such that it "discriminated in the face of a perceived risk."

What this case tells us is that it is quite difficult to challenge a jury verdict on appeal, and that arguments that the verdict was rooted in speculation are equally difficult. Here, we inferred that defendant wanted plaintiff to drive his truck on the interstate highway, even though, I guess, no one directly testified to that fact. But we can draw inferences so long as they are not unreasonable.

Wednesday, February 6, 2019

Intern at cosmetology school not entitled to salary under the FLSA

From time to time, the Second Circuit puts further gloss on the legal doctrine that says some entities do not have to pay their interns any salary. This case falls under that category. The Second Circuit says a student at a for-profit cosmetology school who had to perform barbering and other cosmetology services to the public at discounted prices.

The case is Velarde v. GW GJ, Inc., decided on February 5. The seminal case in this area is Glatt v. Searchlight Pictures, 811 F.3d 528 (2d Cir. 2015), which says the intern is not entitled to any compensation under the Fair Labor Standards Act if the intern is the "primary beneficiary" of the relationship. If the intern's employer is the "primary beneficiary" of the relationship, then the entity is an employer under the FLSA and the intern has to receive compensation.

Velarde is the lead plaintiff in a potential class action. After finishing eight weeks in the classroom, plaintiff worked at the salon run by the school, performing cosmetology services for the public. He also had to perform janitorial and clerical work. Under state law, to offer cosmetology services in New York, you have to complete 1,000 hours of coursework in various subject areas, like hair styling and presumably shampoo, like the beauty school dropout in Grease.

Plaintiff said the beauty school was the primary beneficiary of the relationship because it derived revenue from the work he performed for paying customers. He says that any training and skills he received from providing those services are "besides the point." The Second Circuit (Cabranes, Carney and Caproni [D.J.]) disagrees. The Court first holds that the "primary beneficiary" test applies in cases involving vocational schools or vocation-related programs. It then holds that plaintiff was the primary beneficiary of this relationship because he received significant benefits from his work at the Salon, as he was required to complete 1,000 hours of coursework, and he did so under the supervision of the school's instructors. And the school actually had plaintiff work exactly 1,000 hours, consistent with state licensing requirements. While plaintiff says he also performed clerical and janitorial duties, the Second Circuit has already held that relatively menial or repetitive tasks may legitimately comprise part of the intern relationship for which the intern receives no pay. And, while plaintiff points out the Salon earned money from his cosmetology work, "the Academy has no obligation not to turn a reasonable profit on its operations" and "this is not a case in which a business uses the facade of a vocational school to deceive students into working unexpectedly long hours without compensation, replacing the labor of its paid employees, or working hours well beyond long-standing state requirements."

Tuesday, February 5, 2019

No fourth amendment liability in gun-seizure case

This search and seizure case involves assault weapons in Connecticut. The police entered this guy's home to retrieve weapons that plaintiff was not supposed to have because they mistakenly thought he had a felony conviction. He sues the officers for entering his home without a warrant. Plaintiff loses the case.

The case is Kaminsky v. Schirio, a summary order issued on January 24. The FBI told local police that plaintiff had a felony conviction and therefore was not allowed to possess any firearms. The police showed up at plaintiff's house, and plaintiff recognized one of them, so he said, "What's up Walt?" Plaintiff then waved the police into his house. Big mistake. When the police entered the house, plaintiff voluntarily surrendered his guns. The other cops waited outside and minded their own bees-wax, declining to search the property. A few days later, the police returned to plaintiff's home, and he turned over more guns. In all, plaintiff had 59 firearms in his house, there of which were illegal assault weapons.

In this fourth amendment case, plaintiff says the police had no right to be in his house. The Court (Katzmann, Hall and Lynch) disagrees. Kaminsky consented to their entry after they said, "can we come in?" Emphasis in "we," which means more than one. The officers who entered the house did so at plaintiff's invitation. Now, as it happens, plaintiff was not actually a convicted felon. His conviction from 1964 was not a felony at the time. But, the Court says, that is no reason to find the police violated the Fourth Amendment in entering the house, as it provides no basis to believe that plaintiff's consent for the police to enter was coerced.

So what about the officers who did not enter the house? Plaintiff sues them as well, claiming they were present on the curtilage and their mere presence violated the Constitution. This claim also fails under qualified immunity. Even if the area was curtilage, the officers reasonably believed the area in which they waited was not curtilage. The opinion is not clear as to why this is so, but in the statement of fact, the court notes the officers were standing near a public lake. While more recent Supreme Court cases may call the district court's analysis on the curtilage issue into question, under qualified immunity principles, we look at the law as it existed at the time of the alleged constitutional violation.  As the officers are not expected to anticipate those developments, they did not knowingly violate clearly-established law. The case is dismissed.

Monday, February 4, 2019

Court of Appeals reinstates claim that detectives falsified evidence in homicide case

This complicated Section 1983 case alleges that New York City detectives fabricated evidence that resulted in a murder conviction (for which the defendant was eventually exonerated halfway through his sentence when the police determined that someone else committed the homicide). The Court of Appeals reinstates the lawsuit, finding a jury may conclude the detectives did in fact falsify evidence, and that other prosecutorial misconduct denied the plaintiff a fair trial.

The case is Bellamy v. City of New York, issued on January 29. The victim was stabbed outside a grocery store in Queens. Bellamy was picked up for the killing, and the detectives produced two pieces of evidence at the criminal trial that implicated Bellamy: (1) an admission from Bellamy that this was a case of mistaken identity and that someone must have falsely accused him of murder and (2) an eye-witness statement that says Bellamy got into a fight with the victim on the day of the murder. The first evidentiary submission was significant because no one said anything to Bellamy about a murder when he allegedly blurted out that he did not kill anyone. The second evidentiary submission is significant because eyewitness statements like this are always useful for the prosecution.

We have an issue of fact for the jury in Bellamy's civil rights case on these alleged evidentiary fabrications. Bellamy swears he never made that admission, and the woman who purportedly made that eyewitness statement swears she never said it, either. This kind of he-said she-said factual dispute will get you a trial in the typical Section 1983 case, and it gets Bellamy a trial in this case, even though it involves a homicide. While the district court said Bellamy's denial was self-serving and not substantiated by any direct evidence, the law is that "self-serving" but sworn testimony is enough to create a factual dispute so long as the testimony is not contradictory and incomplete. The case for that proposition is Rentas v. Ruffin, 816 F.3d 214 (2d Cir. 2016).

The Court (Walker and Shea [D.J.], over Judge Jacobs' dissent) also reinstates Bellamy's civil case against the detectives because he adequately alleges the police withheld evidence that would have helped Bellamy's criminal defense. While the victim was killed on a Saturday, one eyewitness told the detectives that she saw Bellamy on a Sunday, when he was trying to buy beer before noon (you could not buy beer on Sunday mornings). The detectives did not turn over this statement to the prosecution. While the detectives claim this witness said no such thing, the witness herself said that she did. As Bellamy's guilt was a close call, this factual dispute could have a made a difference at the criminal trial. The jury in Bellamy's Section 1983 case must determine if the detectives failed to turn over this exculpatory evidence.

We have other allegations that a jury must also consider in determining if the detectives failed to turn over relevant evidence. Bellamy has evidence that one eyewitness said Bellamy was with someone else, Lee, on the day of the killing. That witness denies making that statement. This is relevant because there was no suspicion that Lee had anything to do with the murder. This is a close question, but it goes to the jury.

Finally, Bellamy has a Monell claim against the City, claiming municipal liability over its policy of failing to disclose the relocation benefits that one eyewitness would receive if he testified at the criminal trial. A Monell claim also arises from the prosecutor's improper summation. The Court holds that the actions of county prosecutors in New York  are generally controlled by municipal policymakers for purposes of Monell, which says you cannot sue sue a municipality unless a municipal policy led to the violation of your constitutional rights. So what happened here was the result of municipal and not state policy, even though the DA's office says that alleged DA "misconduct" is a state function. As for non disclosing the relocation benefits, the jury could find the eyewitness was promised relocation and related benefits in return for testifying. These benefits were sufficiently lucrative for the witness that the jury could have taken them into account in assessing the witness's credibility. As for the ADA's summation, Monell liability may attach because the ADA was not disciplined by his superiors for telling the jury that he personally knew who committed the murder. The ADA also said that Bellamy was not going to get away with the murder, "not this time." This suggests Bellamy has killed others and gotten away with it. This and other problems with the summation fuel Bellamy's Monell claim, particularly since the trial evidence did not exactly point to Bellamy's guilt, and the DA's office had major misgivings about the quality of its case in any event.