Wednesday, October 30, 2019

One-dollar strip search verdict is rejected on qualified immunity grounds

This guy sued an Oswego sergeant, claiming the officer subjected him to a manual body cavity search. It took place in the context of felony drug charges. Plaintiff won the trial, but the jury only awarded him one dollar. That may be an empty victory for plaintiff, but the sergeant appeals it anyway, claiming no liability can attach at all because he is entitled to qualified immunity. The Court of Appeals agrees with the sergeant, and the verdict is gone.

The case is Sanchez v. Bonacchi, a summary order issued on October 25. If you read this blog on a regular basis, you know that public officials (including police officers) get qualified immunity from suit if the law was not clearly-established at the time of the incident. Officers are not expected to anticipate how appellate courts in the future will resolve complex constitutional issues, so if there is something funky about the case, the officer gets the benefit of the doubt.

The district court denied the sergeant qualified immunity because he "personally conducted a manual body cavity search of Plaintiff before obtaining a judicial warrant, and because Defendant essentially testified that he knew such conduct violated Plaintiff's rights." Interesting. The officer testified that he knew he was violating plaintiff's rights when he conducted the cavity search. What more could a plaintiff want? (And why would the jury only give plaintiff one dollar for this intrusive violation of his physical dignity? Only the jury can answer that question.)

The problem with the district court's analysis is that is focused on the officer's subjective intent in resolving the qualified immunity question. Qualified immunity is an objective test, not a subjective one. So it is not enough for the officer to "admit" he was violating the plaintiff's rights. The question is whether a reasonable officer would have done the same thing. If the answer is yes, then the officer is immune from suit, no matter what he testified to at trial.

The correct test is "whether a right to be free from a warrantless manual body cavity search in the absence of exigent circumstances and a particularized suspicion that evidence of a crime is secreted inside the body cavity was clearly established at the time of the search, in February 2013." In 2013, the Second Circuit held in Gonzalez v. City of Schenectady that, "although we have repeatedly held that the police may not conduct a suspicionless strip or body cavity search of a person arrested for a misdemeanor," neither the Court of Appeals nor the Supreme Court had extended that reasoning to felony drug arrests. This means that cases like plaintiff's (involving felony drug arrests) were not clear constitutional violations, at least by February 2013.

What it means for plaintiff is that verdict is gone, the one-dollar damages award is gone, his attorneys' fees are gone, and the sergeant ultimately wins the case.

Tuesday, October 29, 2019

Circuit gives pro se inmate a break

The case involves continuing violations and equitable tolling for an inmate who claims he got lousy medical care while he was incarcerated. The Court of Appeals revives the claim on the basis that plaintiff might be excused for his late filing because he was made to wait for a notary to stamp his lawsuit.

The case is Sides v. Paolano, a summary order issued on October 22. Sides says that in August/September 2012, he was denied adequate medical care. He filed the lawsuit on October 1, 2012, more than three years after the bad medical treatment. Problem: the statute of limitations is three years. The lawsuit fell outside that time-frame. Can plaintiff get around this? The district court said no. The Court of Appeals (Walker, Carney and Koeltl [D.J.]) says yes.

Equitable tolling is God's way of saying that some latenesses can be excused, but only for a compelling reason. Plaintiff says that he needed a notary stamp on his lawsuit before he could file it. He requested the notary at the prison on September 21, 2015, and he got the assistance on September 29, 2015. We call that bureaucratic inertia. It's not like inmates can just walk into a bank for a notary. You are at the mercy of prison staff. Notarizing signatures is not a priority.

State court lawsuits in New York have to be verified. That is not the case in federal court. Why did plaintiff need a notary in the first instance? Sides says he relied on a pro se handbook and a prisoner manual that said complaints have to be notarized. Only injunction applications in federal court need to be notarized, since you have to file an affidavit.

The Court of Appeals says the handbook advice may or may not have been correct. But we have an inmate plaintiff here, and the cases have long held that inmates get some solicitude in dealing with deadlines and other procedural requirements. Since Sides did file his lawsuit within days of the September 28, 2015 deadline, the late filing might be excused. The case is sent back to the district court to determine in the first instance whether plaintiff is entitled to equitable tolling.

Monday, October 28, 2019

Tight handcuffing claim does not survive qualified immunity defense

The Court of Appeals has granted qualified immunity to a police officer who allegedly overly-tightened handcuffs upon an arrestee who suffered permanent nerve damage after unsuccessfully signaling to the officer that the cuffs were too tight.

The case is Cugini v. City of New York, decided on October 25. Plaintiff was arrested on a domestic stalking and harassment charge. She claims the officer cuffed her "very tight," causing her to say "ouch" while her body shuddered. The officer responded, "Don't make me hurt you" and tightened the cuffs further, causing plaintiff to further react, "ow" or uttering a "cry." For the next 40 minutes, plaintiff kept her mouth shut, claiming she was "too scared" to complain any further about the handcuffs.

Here's the question: how does this scenario entitled the officer to summary judgment in this excessive force case? The answer is qualified immunity. Police officers are entitled to immunity if they did not violate clearly-established constitutional rights, as determined by Supreme Court and Second Circuit authority. A right is clearly-established if the facts giving rise to the claim make it clear to any reasonable police officer that the plaintiff's constitutional rights were violated. So a generalized right to be free from excessive force is not enough. You have to show that existing precedent makes it clear the plaintiff's rights were violated in light of the facts known to the police officer at the time of the incident.

The Court of Appeals (Sack, Hall and Droney) does two things here. First, it decides that plaintiff's right to be free from excessive force was in fact violated. Under settled Supreme Court authority (Graham v. Connor [1989]), "a government officer may not intrude upon a person's Fourth Amendment rights by employing a degree of force beyond which is warranted by the objective circumstances of an arrest." Relevant factors include whether the plaintiff was actively resisting arrest, whether she was trying to flee, and the severity of the crime at issue. Second, the Court finds the officer is immune from suit because the law was not sufficiently clear that he was violating her rights.

On the first issue, the Second Circuit states that "A reasonable on the scene should have known that the force used was excessive. A reasonable jury could find that the degree of force employed by Palazzola was, objectively considered, disproportionate and unwarranted under the circumstances," particularly since plaintiff communicated her distress to the police "through her pained utterances and bodily shudders" and the officer threatened her with further harm if she did not stop complaining." The officer then tightened the handcuffs. This ruling helps other excessive force plaintiffs who claim the police applied too-tight handcuffs, as this ruling is now "clearly-established" constitutional law, at least from October 25, 2019 forward.

But this ruling on excessive force does not help plaintiff, because no court had engaged in this precise analysis on the day she was arrested in June 2014. In other words, as to plaintiff's case, the law was not clearly-established in 2014. The Court of Appeals phrases the question this way: "whether, at the time of Cugini's arrest, clearly established law required an officer to respond to a complaint by a person under arrest where, as here, that person exhibited only non-verbal aural and physical manifestations of her discomfort." Well, if you frame the issue that way ...

Prior to this decision, no case had quite held that any plaintiff on these facts suffered a constitutional violation. Yes, plaintiff did make some non-verbal noises as a means to complain about the handcuffs. But, at the time of her arrest, "It remained an open question in this Circuit whether a plaintiff asserting an excessive force claim was required to show evidence that an officer was made reasonably aware of her pain by means of an explicit verbal complaint." Also, "there was no such consensus in federal circuits outside ours whether a verbal complaint was necessary, so we need not -- we cannot -- come to a conclusion as to the consequences of any such consensus had there been one."

Plaintiff wins the battle but loses the war. You may think the Second Circuit sliced the baloney too thin in holding that a reasonable police officer might think he was not violating plaintiff's rights in tightening the handcuffs. But the Supreme Court has been making it more difficult for plaintiffs to survive qualified immunity motions. But, while plaintiff loses the war, the next such plaintiff will get around this particular qualified immunity equation.

Friday, October 25, 2019

Qualified immunity for police officers in excessive force/false arrest claim

If you sue the police for excessive force or false arrest, you have to worry about qualified immunity. There are ways around it, but I see a pattern in the Second Circuit, in which the Court of Appeals dismisses a Section 1983 claim on qualified immunity grounds, even after the district court allowed the case to proceed to a jury. That's what happened in this case.

The case is Calixto v. City of New York, a summary order issued on October 4. Qualified immunity is a legal protection enjoyed only by government defendants who are sued for civil rights violations. If the law was not clearly-established at the time of the violation, the defendants are off the hook even if, with 20-20 hindsight, they violated the plaintiff's constitutional rights. The idea is that close cases are decided in the defendant's favor, since they cannot be expected to know they are violating the law if the case law prior to that date was not sufficiently clear on that precise factual situation. In police cases, this immunity also arises when the police have to act quickly and make split-second judgments that seemed reasonable at the time, at least to a judge.

This was an excessive force and false arrest case. Someone reported that three men had committed a burglary. Plaintiff awoke with the news that her son was involved in an incident on the street, so she went to the scene and saw her intoxicated son holding a long, narrow stick, with other other. people. Then the police show up. Plaintiff told the young men to move aside, using the stick that her son had been holding, to shoo them away. This is how the district court describes what happened next:

As the officers approach the entrance of the residence, plaintiff turns, still holding the stick. In an instant, as seen clearly on the videotape. Officer Rodriguez seizes Ms. Calixto and throws her to the ground before rushing into the building. While Ms. Calixto remains on the ground, the other officers follow in pursuit of her son and his companions. Seconds later the video shows the officers leaving the building with Ms. Calixto's son in custody. After several minutes, newly arrived uniformed officers arrest Ms. Calixto. None of the three named officers—Rodriguez, Cespedes, and Delassantos—are nearby when she is handcuffed by the uniformed officers. Id Moments later. Officer Rodriguez re-enters the video, grabs Ms. Calixto, who is now in handcuffs, and rushes her out of the video's frame in the direction of police vehicles.
In short, plaintiff was thrown to the ground and arrested. The charges were dropped and she sued the police. The district court said plaintiff has a case for both claims (which would allow plaintiff to bring her claims to trial), but the Court of Appeals (Cabranes, Lynch and Droney) reverses, and plaintiff loses the case because the officers have qualified immunity. There will be no trial.

The Second Circuit reminds us that the Supreme Court has repeatedly endorsed qualified immunity as a defense and that "the inquiry must be undertaken in light of the specific context of the case.” The Circuit cites Mullenix v. Luna, 136 S.Ct. 305 (2015), for that proposition. We also know that "qualified immunity is available to all but an officer who, on an objective basis, is either plainly incompetent or knowingly violates the law." Malley v. Briggs, 475 U.S. 335 (1986). These principles kill off plaintiff's case. Here is the reasoning on plaintiff's excessive force claim:

As depicted in the surveillance footage, Rodriguez sprinted towards the doorway at a high speed, with no opportunity to ask Calixto to move. We agree with Appellants that an officer in Rodriguez’s position would have reasonable concerns, such as a suspect escaping or potentially setting a trap for the police, and that Rodriguez’s push of Calixto out of the way when she turned, raised a stick she was holding to eye level, and blocked his way as he rushed to the door, was a reasonable level of force in the specific circumstances presented. Regardless of whether, in hindsight, Calixto actually posed a substantial threat, or intended to impede the officer’s progress, Rodriguez acted reasonably in pushing her and the stick away from his person.
Say goodbye to the false arrest claim, as well. The officers had "arguable probable cause" to arrest her. "Arguable probable cause" is another qualified immunity principle. "The surveillance footage and Calixto’s admissions in her deposition indicate that there is no dispute of any material facts as to whether the police officers had at least arguable probable cause. Rodriguez observed Calixto block his path, and he was present and communicating with the other officers when she was arrested minutes later. The evidence thus makes clear that the defendant officers all would have had a reasonable basis to believe probable cause existed."

Wednesday, October 23, 2019

Texting juror gets murder defendant a new trial

Judges always tell jurors to behave themselves. Jurors cannot talk about the case before the trial is over. Jurors cannot read news accounts of the case when the trial is pending. Jurors cannot do this, jurors cannot do that. In this case, a juror in a prominent murder trial in upstate New York violated all the rules, and that means the murder conviction is vacated and the defendant gets a new trial.

The case is People v. Neulander, a New York Court of Appeals ruling issued on October 22. Defendant was a prominent doctor in the Syracuse area who was accused of murdering his wife and tampering with evidence. Juror Number 12 sent and received hundreds of text messages about the case during trial. You read that right: hundreds of text messages. The juror also accessed news coverage about the case and, when the court inquired about this behavior, Juror 12 lied under oath, provided a false affidavit and even tried to erase the incriminating evidence from her cell phone.

Defendant gets a new trial. The Appellate Division Fourth Department held as such, and the New York Court of Appeals agrees. The Fourth Department noted that “every defendant has a right to be tried by jurors who follow the court’s instructions, do not lie in sworn affidavits about their misconduct during the trial, and do not make substantial efforts to conceal and erase their misconduct when the court conducts an inquiry with respect thereto.”

These cases are fascinating because I am sure that jurors pull stuff like this from time to time, but no one ever finds out about it. Juror 12 got caught because someone grew suspicious. During trial, this juror lied to the court when it inquired about her improper behavior. After the guilty verdict came in, an alternate juror told the court what Juror 12 had been up to during trial.

The defendant's appellate brief quotes from some of the incriminating text messages:

As soon as Juror-12 was selected to serve on the jury, she told her father about her selection. He replied: “Oh lucky you!” and “Make sure he’s guilty!”

That same day, Juror-12 told her friend Tiff Sampere that she had been selected as a juror. In the ensuing text exchange, Sampere twice referred to Neulander as “scary,” asking “Is he scaryyyy” and “Did you see the scary person yet.” Juror-12 responded that she had “seen him since day 1.”

Juror-12 exchanged messages with Sampere throughout the trial.

The day Jenna Neulander testified as a defense witness, Juror-12 exchanged dozens of messages with her friend Lindsay Flanagan about the trial. Flanagan’s messages started during a break in Jenna’s testimony, while Juror-12 was in the jury room. Flanagan asked whether the court “check[ed Juror-12’s] texts.” Juror-12 responded no. Flanagan then said she was following the trial “live on Twitter” and was “obsessed.” Flanagan said she thought Jenna was not credible. Flanagan said that she had “read so[] much” about the case that she knew “every possible detail that the public is allowed to know,” and that she was “so anxious to hear someone testify against Jenna.” In a message that Juror-12 later deleted, Juror-12 responded that “[n]o one will testify against her!” and explained that the only opportunity for the prosecution to question Jenna would come on cross-examination.

Following Jenna’s cross-examination, Flanagan wrote to Juror-12 that her “mind [was] blown that the daughter [was not] a suspect.” In a playful back-and-forth, Juror-12 sent Flanagan a “see no evil, hear no evil, speak no evil” emoji and Flanagan asked, “[or] is she?” with an accompanying emoji.

Flanagan continued to express her suspicions about Jenna, advising that she had “so many questions [she] would ask if [she] was one of the prosecutors or stuff [she] would look into if [she] was an investigator.”
The brief goes on to state that "Juror-12 deleted some of her text exchanges, including those with her father and Sampere, in their entirety. At the hearing, she was unable to explain why. . . . She first said that she had deleted the exchanges with Sampere because Sampere had moved, but moments later claimed not to remember why she had deleted the messages. Juror-12 also selectively deleted some of her exchanges with Flanagan, including: (1) Flanagan’s message asking whether the court reviewed Juror-12’s texts; (2) Flanagan’s message explaining that she had read so much about the case that she knew “every possible detail that the public is allowed to know”; and (3) Juror-12’s response to Flanagan’s message expressing a desire to hear someone testify against Jenna. Juror-12 had to delete these messages one-by-one and, once again, was unable to explain at the hearing why she did so."

Tuesday, October 22, 2019

Suspicious behavior warranted a Terry stop

The police can detain you if they have reasonable suspicion. In this case, the plaintiff's actions were suspicious enough for such a detention, and the case is dismissed. The plaintiff, I am sure, protested that he was doing nothing wrong, that he was just sitting in a parking lot. But context is crucial, and the courts are not sympathetic to men like this.

The case is Mastromonaco v. County of Westchester, a summary order issued on October 9. The rule is that “[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. This standard is met where an officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” We call that a Terry stop, named after a 1968 Supreme Court ruling. No warrant is necessary for a Terry stop.

Plaintiff was stopped because he was in a school parking lot after the school day had concluded, and his car was secluded "and a considerable distance from any other campus activities." In addition, plaintiff and his companion would not make eye contact with the police. They also "attempted to drive away abruptly in the middle of the conversation." This is suspicious behavior, so the police were legally able to apprehend the plaintiff to prevent him from driving away.

Once plaintiff was seized, the police searched him and also searched the car. They smelled marijuana in the car. Hence, plaintiff's formal arrest. That arrest was legal also, says the Court of Appeals (Calabresi, Pooler and Park). Plaintiff must have been acquitted of the charge, or maybe the prosecution dropped the charge, which allowed him to sue for false arrest. But that clearance does not mean the police lacked probable cause to arrest. Lots of people walk free after an arrest but cannot sue for false arrest because the courts ask whether the police had probable cause to arrest at the time of the arrest; there is no room for Monday-morning quarterbacking in cases like this.

Friday, October 18, 2019

Another case falls into the Garcetti graveyard

It's been a while since the Second Circuit has resolved a case involving public employee whistleblowing. These cases have dried up somewhat as the courts have broadly applied the Supreme Court's ruling in Garcetti v. Ceballos (2006) that says it's not free speech if the public employee speaks as an employee and not as a citizen. This distinction kills the case when the speech is pursuant to his official job duties. A lot of cases fall into the Garcetti graveyard. This one does, also.

The case is Waronker v. Hempstead Union Free School District, a summary order issued on October 17. Plaintiff was a highly-accomplished educator who became superintendent at the troubled school district in Hempstead, Long Island. According to the complaint, plaintiff began undertaking various reform efforts at the district, but he was met with resistance from within. That is when things took a turn for the worse for plaintiff. The Court of Appeals (Walker, Carney and Koeltl [D.J.]) writes that the district next fired "the Special Investigators who were looking at abuse, mismanagement and possible corruption,” prompting Waronker to send an email to the Board of Education advising that he had “consulted with several law enforcement agencies” about “matters [that] . . . appear to be both unlawful and unethical.”

Next thing you know, the Board suspended Waronker’s authority to act as superintendent. Plaintiff then distributed an open letter to the Hempstead community, urging members to “collaborate with me to make Hempstead Schools thrive again” and warned that “[p]olitics, self-interest[], patronage, vendettas, threats, and cover-ups cannot rule the day.” Four days later, the Board placed Waronker on paid administrative leave.

If you speak pursuant to your official job duties, it's not free speech under the First Amendment. If you speak as a citizen, it is protected speech. That's Garcetti in a nutshell. So if the school district's comptroller announced that someone is stealing money from the district, that's not First Amendment speech, because it's the comptroller's job to say so. If the comptroller is fired because of his "Impeach Trump" bumper sticker, that's free speech because he's speaking as a citizen and that kind of political speech is not part of his job description. This may sound unfair to you, but that's what the Supreme Court said in 2006.

Plaintiff loses the case because the community letter was not free speech, it was work speech. The Court of Appeals reasons:

Waronker does not plausibly allege that he was speaking as a citizen when he publicly accused the School District of corruption. The complaint makes clear that “root[ing] out [] corruption and mismanagement” was “part-and-parcel” of Waronker’s daily responsibilities as superintendent, even if, as Waronker claims on appeal, it was not part of his formal job description. Waronker’s factual allegations further make evident that he sent the Board Email and Community Letter pursuant to his official employment responsibilities. Not only do both of these communications focus on Waronker’s efforts as superintendent to reform the School District, but Waronker signed the Board Email using his official job title, “Superintendent of Schools,” and he posted the Community Letter on the School District’s website.
Nor is plaintiff's communications with the law enforcement agencies (as referenced in the Board email) protected by the First Amendment. "Nothing in the complaint suggests that he consulted with
these agencies as a private citizen. Instead, as he explains in the Board Email, Waronker felt 'compelled' to contact law enforcement because (1) the Board failed to take 'corrective action' after Waronker 'rais[ed] questions about suspected illegal financial activity,' and (2) Waronker had '[a] professional, moral and legal obligation to serve the District.' Waronker therefore framed his consultations with law enforcement as 'a means to fulfill, and undertaken in the course of performing, his primary employment responsibilit[ies].'”

What it all means is that for someone like plaintiff, a good deal of what he has to say about the district may be deemed unprotected speech because it will in some way deal with the school district. As superintendent, plaintiff was the king of the district. That's a loophole in First Amendment retaliation jurisprudence that the courts have not found a way to correct.

Tuesday, October 15, 2019

A roundabout way to reject the inmate's appeal

When you go to trial, you are placing your life in the hands of eight jurors that you don't know and will never see again. An experienced lawyer told me that years ago. When cases go to trial and the jury reaches a verdict, the case is pretty much over, even if the losing party takes up an appeal. Appellate courts defer to the jury's judgment, and unless there is absolutely no evidence whatsoever to support the jury's verdict, the Court of Appeals (or the Appellate Division in state court) will not disturb the verdict.

The case is Bradshaw v. Officer Hernandez, a summary order issued on September 24. This case raises a similar issue to what I talked about above. Bradshaw is an inmate. He claims that Hernandez failed to prevent three inmates from attacking him in his cell. That attack injured Bradshaw, who claims Hernandez did not allow for proper medical treatment. He also claims another officer, Alphonse, trapped Bradshaw's hand in the feeding slot of his cell and smacked his hand with a walkie-talkie. The trial court dismissed all claims on the summary judgment motion except for the medical indifference claim against Hernandez, which the jury rejected.

A huge law firm, Kirkland and Ellis, represented Bradshaw at trial, but he's on his own in the Second Circuit. He wisely focuses on the summary judgment ruling on appeal, not bothering with the jury verdict, which he probably knows will be sustained on appeal. At least the summary judgment ruling will be reviewed by the Court of Appeals de novo, which means from scratch. The trial court gets no deference in granting a summary judgment motion. The issue on appeal is whether the trial court properly dismissed the Eighth Amendment claim in which Bradshaw claims that "Hernandez observe[d] plaintiff Bradshaw being attacked by other inmates, ha[d] a realistic opportunity to intervene, and deliberately fail[ed] to take reasonable steps to prevent that attack."

Although the parties did not brief the issue, the Court of Appeals (Katzmann, Chin and Bianco) finds a way to reject the appeal based on the effect of the jury verdict. The Court of Appeals states that "judicial economy counsels against a remand here, especially given the detailed nature of the jury’s special verdict, which was reached after Bradshaw had a full opportunity to be heard." In the end, the Court says, "Bradshaw’s Equal Protection and Eighth Amendment claims against Officer Hernandez were each premised on the common allegation that Officer Hernandez failed to intervene to prevent the November 20, 2015 attack. The jury’s finding that Officer Hernandez did not fail to intervene was fatal to Bradshaw’s Eighth Amendment claim at trial and, as the law of the case, is fatal to Bradshaw’s Equal Protection claim as well." This is a roundabout way to reject Bradshaw's appeal, but it works. The case is over.

Sunday, October 13, 2019

A bird's eye view of the Supreme Court's LGBT cases

The Supreme Court hears under 80 cases a year. That means more than 7,000 petitions for review go  to the recycling bin. It's been said that every major dispute in American life eventually reaches the Supreme Court. This time around, it's employment discrimination on the basis of sexual orientation and gender identity. I saw this first-hand on October 8, when the justices heard three LGBT cases, including Zarda v. Altitude Express, for which I am co-counsel with Gregory Antollino and the American Civil Liberties Union.

Prior to 1986, the Court had never decided a gay rights case. That year, it held in Bowers v. Hardwick that the state of Georgia could make it unlawful to engage in same-sex sodomy. That ruling was overturned in 2003 in Lawrence v. Texas, when Justice Kennedy said Bowers was wrong in 1987 and it's wrong now. In 1996, the Court ruled that the Constitution prevented Colorado voters from passing a state constitutional amendment that prohibited the state from extending equal rights to gays and lesbians. In 2013, the Court struck down the Defense of Marriage Act in United States v. Windsor, ruling that DOMA violated the due process clause in denying federal recognition of same-sex marriages. In dissent, Justice Scalia decried the scope of this holding, predicting it would ultimately require the states to recognize same-sex marriages. Justice Scalia was right. In 2015, the Court ruled as such in Obergefell v. Hodges, continuing the string of victories for the LGBT community in an otherwise conservative Supreme Court.

The common thread in these victories was Justice Kennedy. A Reagan appointee, Justice Kennedy was always a reliable conservative. But he was a champion of gay rights, often sprinkling his rulings with references to personal dignity. He retired in 2018, replaced by Justice Kavanaugh, another conservative. By that point, it seemed clear that Zarda and two related cases, Bostock v. Clayton County, and Equal Employment Opportunity Commission v. Harris Funeral Homes, were on their way to the Supreme Court, which hears cases in order to iron out conflicting federal court rulings around the country. Zarda was a Second Circuit case that held that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation. Bostock arose in the Eleventh Circuit, which disagreed with Zarda. Harris Funeral Homes, out of the Sixth Circuit, was in line with Zarda, holding that discrimination on the basis of gender identity is a form of sex discrimination, prohibited under Title VII. Justice Kennedy was the fifth vote in all of the Court's successful gay rights rulings. Along with Justice Gorsuch, Justice Kavanaugh has not publicly addressed these issues. They will now.

Every case that reaches the Supreme Court begins quietly: a lawsuit is filed on behalf of an aggrieved plaintiff. Most cases settle. Some are dismissed following pre-trial discovery. A few go to trial. But unless someone files a test case (with an eye toward the Supreme Court) or the case involves presidential authority, foreign policy or some other issue of national importance, no one thinks it will reach the Court. Title VII discrimination cases are filed every day. How did Zarda and the others get this far?

It started in 2015, when the Equal Employment Opportunity Commission took a fresh look at whether Title VII prohibits sexual orientation discrimination. Prior to that, no court had interpreted Title VII this way. That year, the EEOC issued an extensive administrative ruling that reached three conclusions: first, sexual orientation discrimination is a form of gender stereotyping, which the Supreme Court held in Price Waterhouse v. Hopkins (1989) is a form of gender discrimination. We all know the stereotype: men are attracted to women, and vice-versa. Those who undermine the stereotype may fall victim to workplace bias. Second, you cannot take someone's sexual orientation into account without considering their sex. If John is fired for dating Michael, and he would not have been fired if he were a woman, then John is fired because of his sex. John is fired for doing something that a woman is allowed to do. Third, this form of discrimination punishes someone for their same-sex associations. Courts have held that you cannot fire a white man for association with a black woman, and in 1967 the Supreme Court said states cannot make it illegal for blacks and whites to marry. The EEOC adopted that logic to sexual orientation discrimination cases.

The EEOC ruling was the Baldwin case. Gregory Antollino read a New York Times article about Baldwin in his office one day. At the time, he was litigating the Zarda case, proceeding under Title VII and New York law. The trial court had previously dismissed Zarda's Title VII claim because the Second Circuit had previously held in Simonton v Runyon (2000) that sexual orientation discrimination is not a form of sex discrimination. The Baldwin ruling was a gift. Antollino immediately sent a letter to the trial judge in the Zarda case, asking that he revive the Title VII claim. While Simonton was still good law in this jurisdiction, and EEOC interpretations are not binding on the federal courts, sometimes you have to take chances. The trial court said no. That maneuver preserved this issue for the Second Circuit Court of Appeals.

I joined the Zarda case a few years ago, after the case went to trial in the Eastern District of New York, on Long Island. On the state law claim, the jury found that Zarda was not discriminated against. But the trial court's state-law jury instructions imposed a higher burden of proof for Zarda than federal law requires. That meant the federal claim was ripe for appellate review in the Second Circuit. Under the proper jury charge, Zarda could win the case under Title VII. In declining to revive the Title VII claim, a three-judge panel of the Second Circuit ruled it was bound by Simonton. But the full 13-member Second Circuit heard the case en banc in September 2017, recognizing the gravity of this issue. Following oral argument in which three attorneys argued on each side, the Second Circuit in February 2018 jettisoned Simonton and became the second federal appeals court to hold that sexual orientation discrimination is a form of sex discrimination in violation of Title VII. The Second Circuit's reasoning tracked the EEOC's rationale in Baldwin. Once the Eleventh Circuit issued a contrary ruling in Bostock, the Supreme Court granted review, scheduling oral argument for October 8, 2019, setting aside one hour for each case. Zarda and Bostock were consolidated in the Supreme Court, and the Harris Funeral Home case, involving former employee Aimee Stephens, remains a stand-alone case.

The Supreme Court is a majestic building, constructed in the 1930s, when government buildings stood for something. In person, it's taller than it looks on paper. It's like a white mountain with Greek columns. Inside, the building is marble, marble, marble, with hallways and staircases that seem to stretch for miles, oil portraits and busts of old justices. The sole courtroom is smaller than you'd think. It oozes tradition and old-school design. It's all about decorum at the Supreme Court. No cell phones or newspapers in the courtroom. No television cameras, and no recording equipment. I was directed to remove my reading glasses from my forehead. When they escort you into the courtroom, you sit down and shut up. You wait patiently for the justices to emerge from a red curtain and take their seats in order of seniority, with Chief Justice Roberts in the middle. They do so at 10:00 on the dot.

Since the courtroom is relatively small, not everyone can watch the argument in person. For prominent cases, crowds will gather outside a few days prior to the argument, and hundreds of people will sit and even sleep on the sidewalk, hoping they will make it inside the building. That is what happened in the LGBT cases. (I must say, this process must change. How hard is it for the Court to develop a lottery system where the public can secure a seat in advance through computer technology? There were a lot of disappointed people who waited in vain to see this historic case). For now, this is the case of the year.

If you study or practice constitutional law, or if you read Supreme Court biographies and insider accounts, watching a Supreme Court argument for the first time is surreal. Because of the impact they have on American law, the justices are larger than life, and we know all about them. We watched their confirmation hearings on TV, we know about their personal lives, where they went to law school and how they decide cases. So that's Gorsuch over there, a Trump appointee who benefited from the Senate filibuster of President Obama's choice to replace the late Justice Scalia, Merrick Garland. Next to him is Justice Sotomayor, an Obama appointee who used to sit on the Second Circuit and was one of the toughest questioners I ever faced. To her left is Justice Breyer, a Clinton appointee who once wrote a book about how the Constitution should be interpreted to advance the cause of democracy. Between Justices Breyer and Roberts is Clarence Thomas, appointed by George H.W. Bush. I think back to law school in 1991, when his confirmation hearings became a public trial on whether he sexually harassed Anita Hill. Justice Thomas is among the most conservative justices the Court has ever had. Justice Ginsburg sits to the Chief Justice's left, a 86 year-old folk hero. She has a soft voice but her questions are carefully phrased. Everyone knows her legacy as a sex discrimination pioneer. Moving past Justice Alito, we got . . . Brett Kavanaugh. And it's really him. Everyone is probably thinking what I am thinking when he sits down and looks out at the crowd. As tumultuous as his confirmation hearing was, he'll be looking out at the crowd for the next 25 to 30 years.

The Court knows the LGBT cases are huge, but it proceeded like any other case. The Chief Justice calls the first case and Pamela Karlan steps to the podium. Karlan heads the Supreme Court litigation clinic at Stanford Law School, a veteran Supreme Court advocate chosen by Antollino to present Zarda's case. She is also arguing for Bostock. Karlan is very good, but here's the thing about oral argument in any court: you can prepare all you want, but no one knows what the court will ask. The same holds true with the Supreme Court. Eight of the nine justices are expected to ask questions (Justice Thomas almost never speaks up), hurled at the attorney as non-sequiturs. The justices speak in no particular order as soon as a prior question is answered. Or they hit you with a question before you finish your answer. There are no rules. You may get a supportive question, or you may get a hostile question. You may get complex hypotheticals, and you may get a speech from one of the justices. If the justices think you are avoiding the question, they will ask it again. Someone tries to make a joke. If you're arguing, anything goes, and all eyes are on you. Even expert attorneys can get tripped up at the Supreme Court. But in the end, it's a debate, not a bloodbath. No one talks over each other, and it's all about logic and reason.

The Court has a new rule that says the justices cannot ask any questions during the first two minutes. This allows the lawyer to get a few words in edgewise. Then Justice Ginsburg asked Karlan how she would respond to the employers' argument that Congress could not have contemplated that the Civil Rights Act of 1964 would protect gays and lesbians because "in many states male same-sex relations was a criminal offense" and the American Psychiatric Association back then "labeled homosexuality a mental illness." The question of congressional intent lies at the heart of the employer's argument. Astute readers know that Justice Ginsburg was a civil rights lawyer before ascending to the bench. Why is she asking a hostile question? That's the other thing about oral argument at the Supreme Court. Sometimes the judges ask softball questions to communicate with their fellow justices. RBG knows that Karlan can hit this question out of the park and commence the argument with a strong narrative about how we should look at the actual language of the statute to ensure it also regulates unanticipated circumstances. Legislative intent is secondary under this model of statutory interpretation, the method of choice by modern conservative justices like Neil Gorsuch and Brett Kavanaugh. Smart move by Justice Ginsburg to have Karlan remind the others that their own judicial philosophy requires them to interpret Title VII to include gays and lesbians. After all, when Congress passed the Civil Rights Act of 1964, sexual harassment was so commonplace hat no one even called it sexual harassment, yet the Court in 1986 ruled it violates Title VII. Karlan said as much.

Before long, however, the questions began to focus on bathrooms. While none of the cases before the Court involve bathrooms, the justices wanted to talk about how employers should deal with the transgender bathroom dilemma: say an employee was born with male genitalia but identifies as a woman. Can she use the women's bathroom? The justices suggested that someone may be harmed if they have to use the wrong bathroom for discriminatory reasons. This line of questions dominated Karlan's portion of the argument. There is no easy answer, but it is really a question for a later case. I doubt these cases will turn on this issue; the Court does not decide cases on the basis of hypotheticals.

When the justices were not talking about bathrooms, Title IX sports and religious exemptions (which also bear no relationship to these cases), they dealt with the core issues: (1) does it matter that Congress did not have sexual orientation in mind when it enacted the Civil Right Act; and (2) does this kind of discrimination violate Title VII. I thought they would spend more time on issues (1) and (2) than the side issues. Karlan emphasized that a male has a Title VII case if he's fired for doing something that women are allowed to do, i.e., date men. The employer -- and the U.S. Solicitor General -- said it's only discrimination when the employer fires men but not women for their sexual orientation. Justice Kagan thought that formulation was more complex than the average Title VII analysis. I was glad to hear that Justice Kagan seemed favorable to our case. So did Justices Sotomayor, Breyer and Kagan. That means we need one conservative justice on our side to win. Who'll it be? This is where the tea leaves kick in.

Oral argument may provide fireworks, but it's delayed gratification. There is no decision on argument day. The Court will issue a ruling months from now, though it has a June 2020 deadline. Who is with us? Justice Alito flat out disagreed with Karlan and said a favorable ruling would turn the Court into a legislature, so we lost him. Justice Thomas did not ask questions, but he usually votes with the conservatives. Justice Kavanaugh asked one question that did not elucidate his thinking. The Chief Justice did not ask too many questions, either, and he did not tip his hand. That Kavanaugh and Roberts did not beat up on our side seemed a good sign, as judges usually ask tough questions when they are skeptical of the lawyer's position. But Justice Gorsuch was an active questioner, and he asked the employer's attorney a question that gave us some hope. He suggested that, nothwithstanding any other motives at work, sex is also "in play" when someone is fired for her sexual orientation. "And isn't that enough," he asked. "In what linguistic formulation would one say that sex, biological gender, has nothing to do with what happened in this case?" Comments and questions like this were the talk of the town following argument. Do we have Justice Gorsuch?

My sense is that Justice Gorsuch likes to think out loud. He balanced the above comment with an observation to David Cole, the ACLU lawyer who argued on behalf of Aimee Stephens in support of her transgender discrimination claim. Gorsuch noted that Judge Lynch on the Second Circuit issued a lengthy dissent from the en banc ruling. While Judge Lynch seemed sympathetic to the plaintiff's arguments at a moral level, Justice Gorsuch said, "he suggested that something as drastic a change in this country as bathrooms in every place of employment and dress codes in every place of employment that are otherwise gender neutral would be changed" such that Congress should take this up, not the Court. But are new bathroom rules and dress codes so disruptive of American society that the Court will dodge this issue? Are they even disruptive? Wasn't Brown v. Board of Education (the most celebrated ruling of all time) disruptive? Moments later, Gorsuch asked Cole about the "massive social upheaval that would be entailed in such a decision" and whether the Court should exercise "judicial modesty." Massive social upheaval? I can't imagine the Court will rule against us on this basis. That is not the legal reasoning you see in Supreme Court rulings. The best I can say is that Justice Gorsuch is taking this issue seriously.

As the plaintiffs' lawyers in the audience saw it, the issues are not complicated. Sexual orientation and transgender discrimination are simply variations of gender discrimination. The two-hour argument examined these issues from every angle. We call that "dancing on the head of a pin." In plain English, it's called over-examining the issue. Today's Supreme Court has a 5-4 majority, and it's been that way for as long as I've been a lawyer. But the Court has issued favorable Title VII rulings over the last 25 years, relaxing the standards in retaliation cases, loosening Title VII complaint-pleading standards, and holding that an employer's lies at trial may prove intentional discrimination. Some of these rulings were unanimous. But the Court sometimes burns plaintiffs in this area, and we all know about the rulings in Citizens United (endorsing corporate speech in political campaign donations), Ashcroft v. Iqbal (making it harder for plaintiffs to survive motions to dismiss), Shelby County v. Holder (striking key portions of the Voting Rights Act) and last year's Janus ruling (making it easier for workers to withhold their union dues). The Court can be a wild-card. And it definitely leans right.

Leaving the Court post-argument, we saw a massive protest outside the building. They want the Court to vote in favor of LGBT rights. A lot of people want the Court to rule in our favor, and I would bet that public opinion is in our favor. The Court is not supposed to consider public opinion, but it must know there will be no backlash if they rule in favor of Zarda, Bostock and Stephens. One lawyer at the courthouse thanked Antollino for bringing the case. An old friend private-messaged me the same gratitude (her son is gay). At Penn Station on the way home, I ran into college students who went to the Court and were excited to run into one of the lawyers. Also bear in mind that the justices probably all know gays, lesbians and transgender persons. They wouldn't want them to suffer discrimination. There's a famous story about Justice Powell, who ruled against the plaintiff in the Bowers sodomy case in the 1980s and told his law clerk that he did not think he knew any gay people. Actually, Powell's own clerk was gay. That would never happen now. The justices' personal experiences can help guide their decisionmaking. They know what this case means to people.

Friday, October 4, 2019

Wrong place, wrong time, wrong name (sort of)

This guy was detained by immigration authorities and remained in custody for four days before authorities released him because they arrested the wrong guy under an immigration detainer. He sued for false arrest, but the trial court dismissed the case on a Rule 12 motion. The Court of Appeals reinstates the false arrest claim.

The case is Hernandez v. United States, issued on September 17. Wrong place, wrong time, right name, sort of. Luis Hernandez is an American citizen. But the government moved to deport him, believing he was a native of Honduras. In fact, there was another person with a similar name, Luis Enrique Hernandez-Martinez, with the same birthday as our plaintiff. Eventually, plaintiff was allowed to go home.

The police are sometimes allowed to get it wrong. Many people are arrested or detained for offenses they did not commit, but that does not mean the police lacked probable cause to arrest. False arrest cases are dismissed on a regular basis because "probable cause" sets a low bar for the police to satisfy.

But in this case, at least as set forth in the complaint, plaintiff has a case. The difficult issue in this case is whether Department of Homeland Security had probable cause to lodge an immigration detainer. The Second Circuit (Chin, Wesley and Kaplan [D.J.]) says, "because it is a constitutional right to be free from an unreasonable seizure, a reasonable officer must act diligently before lodging a detainer against an individual and depriving that individual of his or her freedom." The Circuit cites Dunaway v. New York, 442 U.S. 200, 214‐15 (1979). That is about as pro-plaintiff a statement you'll see in a false arrest case, as courts usually add that law enforcement do not have to conduct a full investigation into someone's guilt or innocence before taking them into custody.

Plaintiff sufficiently alleges a false arrest claim. The Court writes:

The Complaint alleges that the Government lacked probable cause because Hernandez was the wrong person: he was not of Honduran nationality, his middle name was not ʺEnrique,ʺ his last name was not ʺHernandez‐Martinez,ʺ his name therefore did not match the name on the detainer, and DHS failed to inquire into whether it was issuing a detainer for the right person. We agree that these allegations are sufficient to plausibly allege a lack of probable cause.
Since "the names did not match, further inquiry was required." Moreover, "the Complaint plausibly alleges that the Government failed to conduct even a rudimentary inquiry into Hernandezʹs citizenship or identity. Indeed, Hernandez has alleged that his citizenship was readily ascertainable, and officers 'may not disregard facts tending to dissipate probable cause.'ʺ

The government argues that plaintiff has no case, claiming that "the similarity in surnames alone is
sufficient to establish probable cause because of the convention in Spanish speaking cultures to shorten surnames composed of the fatherʹs and motherʹs surnames to the first of the two surnames." Creative argument, but no dice. The Court says:

While names of foreign immigrants may be less familiar to some in the United States and ʺdistinctions may therefore be more difficult to spot than variations between certain European or Anglicized names (e.g., John/Jon, Smith/Smyth, or Eric/Erik), a lack of cultural familiarity does not excuse disregarding easily confirmable differences.ʺ Indeed, ʺ[t]o hold otherwise would suggest that a lower standard of proof/lower level of investigation might be necessary in the case of individuals with Latin or otherwise non[‐]Anglo names, raising a host of constitutional concerns.ʺ
 No case quite holds this (other than this one) but the Second Circuit does cite to a few cases that touch upon this issue: United States v. Brignoni‐Ponce, 422 U.S. 873, 886 (1975) (ʺMexican descent . . . alone [does not] justify . . . a reasonable belief that [petitioners] were aliensʺ). Also, "Allowing law enforcement officers to target people based solely on characteristics such as ethnicity or national origin is to ʹcondone ethnic harassment.ʺ Zuniga‐Perez v. Sessions, 897 F.3d 114, 127 (2d Cir. 2018)

Thursday, October 3, 2019

No false arrests in veterans' curbside vendor case

The Court of Appeals has rejected a district court false arrest judgment in favor of disabled veterans who operate vending carts on New York City sidewalks.

The case is Crescenzi v. City of New York, issued on October 3. New York City law allows disabled vendors to operate the food carts. They got arrested when the police asked them to move their carts closer to the curb. The district court ruled in the veterans' favor, finding that the city does not require curbside vending. The Court of Appeals (Livingston and Droney) disagrees, over the dissent of Judge Katzmann, who would certify this state law situation to the New York Court of Appeals, which sometimes takes up issues like this to help the Second Circuit reach the proper result.

We got ourselves a case of statutory construction. The regulation at issue reads: no disabled veteran vendor "shall occupy more than eight linear feet of public space parallel to the curb in the operation of a vending business and, in addition, no [disabled veteran vendor] operating any vending business on any sidewalk shall occupy more than three linear feet to be measured from the curb toward the property line."

In other words, the regulation has two clauses: the first clause provides that no vendor “shall occupy more than eight linear feet of public space parallel to the curb.” "The second clause provides that no vendor “shall occupy more than three linear feet to be measured from the curb toward the property line." The Court recognizes the second clause is ambiguous. But it accepts the City's interpretation of the regulation:

first, it limits the dimensions of vending carts to eight feet in length by three feet in width; second, it requires that carts be positioned lengthwise alongside the curb, out of the way of pedestrians. This interpretation gives full effect to every word in the second clause. Carts can occupy the three feet nearest the curb, “to be measured from the curb toward the property line.”
I know, it's all very fuzzy. In the end, the two-judge majority says the regulation ultimately requires the vendors to place their carts near the curb, closer to the street. "To do otherwise, and allow carts to be placed in the middle of the sidewalk, would be to defy common sense as well as both the text and context of the statutory provision before us."

Judge Livingston opens the opinion with an ode to the streets of New York City, a City like no other, which places in context the complexities of regulating human activity in a city that is home to more than eight million people, plus workers and tourists:

The City is a bustling metropolis in which walking is the primary means of getting around for many of the 8.5 million people who call the City home (not to mention the City’s 60 million annual visitors). See Winnie Hu, New York’s Sidewalks Are So Packed, Pedestrians Are Taking to the Streets, N.Y. Times, June 30, 2016. Much of this pedestrian traffic takes place on sidewalks. Congestion and blockages on these busy sidewalks, then, can create frustrating challenges and real dangers for people simply trying to get to work, school, or the grocery store. The City, cognizant of the sometimes‐difficult circumstances of its pedestrians, regulates its sidewalks with a complex patchwork of laws and regulations in order to ensure a steady—and safe—flow of foot traffic.

Tuesday, October 1, 2019

Jury could find "fit model" was an "employee" under FLSA

This case explores when someone is an "employee" under the Fair Labor Standards Act, which requires that management pay their employees minimum wage and overtime when appropriate. These issues get litigated when management says the worker is not really an employee but an independent contractor. The Court of Appeals finds the jury could rule that plaintiff was an employee.

The case is Agerbrink v. Model Service LLC, a summary order issued on September 24. Plaintiff was a "fit model" in that she would be hired based on her body proportions to help clothing manufacturers test the fit of their designs. Plaintiff entered into a three-year agreement with Model Service, which scheduled her for meetings with clothing companies when they contacted Model Service for that purpose. The question is whether plaintiff was a model service "employee" under the FLSA. We answer that question largely by determining if management exercises sufficient control over the plaintiff. If no significant control, then the plaintiff was an independent contractor. We also consider other factors under the "totality of the circumstances" test, but "control" seems to be a dominant consideration.

The district court dismissed the case, but the Court of Appeals (Katzmann, Wesley and Bianco) reinstates it. The Court opens its analysis with this: "While no single element of Agerbrink’s and MSA’s relationship is dispositive to the FLSA inquiry, there exist genuine disputes regarding Agerbrink’s control over her work schedule, whether she had the ability to negotiate her pay rate, and, relatedly, her ability to accept or decline work. These disputes are significant as they relate both to the 'degree of control' MSA exerted over Agerbrink and Agerbrink’s 'opportunity for profit or loss.'” The Court cites Brock v. Superior Care, Inc., 840 F.2d 1054 (2d Cir. 1989), for this proposition. A more recent case (also cited in this ruling) is Barfield v. N.Y.C. Health & Hospitals Corp., 537 F.3d 132 (2d Cir. 2008).

Plaintiff wins the appeal because she claims that defendant coordinated all of her scheduling with apparel clients and maintained her master schedule. She also asserts "she had no control over negotiating the amount an apparel company would pay for her services and . . . she was discouraged from discussing compensation with apparel companies." As "independence to determine her schedule and income are key inquiries to determining 'whether, as a matter of economic reality' Agerbrink 'depended upon' MSA’s 'business for the opportunity to render service' or was 'in business for' herself." As the jury may find that plaintiff was an MSA employee and not a contractor, the case is remanded for trial.