Thursday, October 14, 2021

NY Court of Appeals broadly interprets employment law protecting convicted job applicants

Did you know it is illegal in New York to decline to hire someone because of their criminal record? You can only slam the door if management shows an unhealthy connection between the crime and the job, i.e., a convicted embezzler cannot work as the comptroller. This case broadly interprets the statute.

The case is Sassi v. Mobile Life Services, issued by the New York Court of Appeals on October 12. Plaintiff worked for Mobile Life. After Sassi began working there, he was convicted for calling in a false emergency to 911. He was sentenced to 60 days' incarceration, which of course cost him his job. When Sassi was released from jail, he told Mobile Life that he wanted his job back. Human Resources told Sassi that the company had previously fired others who had been incarcerated and so, consistent with company policy, it could not bring him back, either. Sassi sues under the Correction Law article 23-A over this refusal to re-employ him.

The lower courts said Sassi has no case because he was convicted during his employment. The Court of Appeals unanimously reverses and finds that Sassi can return to work provided his crime does not create any kind of risk for Mobile Life, what we call the "direct relationship" test under the statute. Under the Correction Law, these protections apply to "any application by any person for a license or employment . . . who has previously been convicted of one or more offenses." 

Writing for the Court, Chief Judge DiFiore states that while the legislature may not have considered this precise scenario -- a request for re-employment with a pre-incarceration employer -- the statute protects Sassi in any event. The statutory language makes a difference here, stating that the law protects "any application by any person" for employment. "Any" means any. That would include re-employment to your old job that you lost upon the conviction. What also help Sassi is the statutory objective: allowing convicted persons a chance at re-entering society and making a living without having your criminal record follow you around for the rest of your life.

I would guess that Mobile Life will argue on remand that it cannot re-hire Sassi because there is a direct connection between Mobile Life's mission (it is an ambulance service) and Sassi's conviction (falsely reporting an emergency to 911). But that is for the lower courts to worry about. For now, the Court of Appeals offers what is perhaps the broadest interpretation of this statute in years

Wednesday, October 13, 2021

Federal judge strikes down NY vaccine mandate that excludes religious objection

A federal judge in Utica has ruled that the State Department of Health cannot impose a vaccine mandate on healthcare workers without allowing them to assert a religious objection.

The case is Dr. A v. Hochul (opinion embedded in article at this link), issued by Judge Hurd on October 12. On August 23, the DOH issued an order stating it would only recognize medical objections to the mandate. This mandate therefore revolved a religious objection that the DOH had authorized on August 18. Plaintiffs sued, arguing their religious objection draws from "the sincere religious belief that they cannot consent to be inoculated ... with vaccines that were tested, developed or produced with fetal cell lines derived from procured abortions."

The plaintiffs invoke Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in employment, in claiming the DOH mandate violates federal law. Employers must consider in good faith whether the employee is entitled to an accommodation for their religious practices. That  accommodation must be granted unless it would pose an undue hardship on the employer. For this reason, Judge Hurd finds, the mandate "stands as an obstacle to the accomplishment and execution" of Title VII of 1964.

Plaintiffs also raise a constitutional objection to the DOH under the free exercise clause, which protects religious freedom. Laws and regulations that burden religious practices are subjected to "strict scrutiny," which is a difficult hurdle for the government to overcome, as the laws must both promote a compelling governmental interest and be narrowly tailored to promote that interest. If the law is neutral and applies to everyone, then strict scrutiny does not apply and the law will be upheld if the government can articulate any "rational" basis for it, which means the justification will be upheld even if the justification is arguable. This regulation is subject to strict scrutiny because the it was amended on August 23 to remove the religious exception, "the kind of 'religious gerrymander' that triggers strict scrutiny," Judge Hurd says.

Having settled on the standard of review (strict scrutiny), the Court strikes down the regulation as it applies to religious objectors. Since the medical exception remains in the regulation, and the state therefore accepts a risk for these healthcare workers who can assert such an exception, the regulation is not narrowly-tailored to suppress and eliminate the virus. "There is no adequate explanation from defendants about why the 'reasonable accommodation' that must be extended to a medically exempt healthcare worker [under the regulation] could not be similarly extended to a healthcare worker with a sincere religious objection." Since the DOH regulation is not narrowly tailored, the Northern District of New York strikes it down.

Thursday, October 7, 2021

Fireman may bring First Amendment case over fire-origin cover-up

The Court of Appeals holds that a New York City firefighter states a claim for free speech retaliation against the fire department for refusing to alter a report about the origins of a fire that seriously damaged a building and led to the death of a firefighter. This is one of the rare cases where the plaintiff survives a motion to dismiss a free speech retaliation claim in the Second Circuit.

The case is Specht v. City of New York, issued on October 6. Pursuant to his duties as a fire investigator, plaintiff determined that the fire was caused by an outside film crew. Worried about offending the lucrative movie industry which often films throughout New York City, plaintiff's supervisors, wanted plaintiff to find that a faulty boiler caused the fire. Plaintiff would not alter the report, and after he was removed from the investigation, his superiors issued a report that blamed the boiler. Plaintiff went on to tell the Department of Investigation and the fire marshals about this cover-up, and his notice of claim against the supervisors was covered in the Daily News.

Is there a speech retaliation claim? The Court of Appeals (Parker, Newman and Cabranes), says Yes. In 2010, the Second Circuit held in Weintraub v. Board of Education that a government employee does not engage in protected citizen speech when his speech is "part and parcel" of his job duties. That standard scaled back these claims, on authority of the Supreme Court's 2006 ruling in Garcetti v. Ceballos. Since many government employees who speak out about corruption learn about this misconduct through their job duties, the Weintraub/Garcetti language his killed off many speech retaliation claims. But not this one.

Plaintiff pleads a plausible claim because (1) government misconduct is almost always a matter of public concern and (2), on the Garcetti issue, while plaintiff learned about the cover-up through his usual job duties, "this case involves the refusal to file a false report, which is different than simply filing a report. We have been clear that a refusal to file a false report may receive First Amendment protection. In Jackler [v. Byrne], we concluded that the appellant’s refusals to obey demands to file false statements constituted speech activity that was significantly different from the mere filing of a report." Moreover, plaintiff's speech to outside government agencies also was not pursuant to his job duties because it was not his job to report misconduct in this manner; he was only responsible for preparing internal reports, not blowing the whistle outside the chain of command. The main event in this ruling is the Garcetti holding.

I argued Jackler in 2011. I did not think I would see another First Amendment case involving a governmental employee's refusal to falsify a report, which meant the complex holding in Jackler was unique on its facts, maybe the reason the Supreme Court did not grant the certiorari petition filed by the defendants in Jackler. That holding has now been applied in this case, confirming that the Court of Appeals will not tolerate governmental cover-ups like this, and that these facts will get around the broad Garcetti holding.

The Court further holds that plaintiff makes out a retaliation case because the adverse actions (being placed on modified duty, being forced to turn in his gun, badge and ID card), took place within five months after plaintiff spoke out. That brings this case within the legitimate time-frame for retaliation claims. I have seen recent district court cases that have tried to narrow the temporal proximity for retaliation cases, but this case deems the five-month analysis a noncontroversial time period.

Wednesday, October 6, 2021

A twist on qualified immunity

Lawyers who handle Section 1983 cases know qualified immunity, which eliminates liability against police officers and other public officials if the law at the time of the incident was not clearly established, that is, no Second Circuit case was directly on point. This case highlights a gloss on qualified immunity.

The case is Chase v. Town of Canton, a summary order issued on October 4. The idea behind qualified immunity is that if the law was not clearly-established, then the police or other public official was not on constructive notice that he was violating someone's constitutional rights. So the case is dismissed as early as possible since this immunity was intended to prevent public officials from being sued in the first place. This principle is so strong that if qualified immunity is denied on the summary judgment motion, the defendant seeking immunity can take an interlocutory appeal on that issue rather than wait for a final judgment, which is when most appeals can be taken.

The rule that the defendant may take an immediate appeal does not count, however, when the trial court in denying summary judgment says there are factual disputes that must be resolved before qualified immunity can be determined. That is what happened here. 

This case alleges that plaintiff was falsely arrested and denied equal protection arising from her alleged false statement to the police about a sexual assault against her. The trial court denied summary judgment on the qualified immunity issue because a jury must first determine if she intentionally made a false written statement about the incident, among other things. That is enough for the Court of Appeals (Chin, Nardini and Livingston) to find there is no appellate jurisdiction over the appeal. The Court states:

We likewise conclude that factual disputes preclude our consideration of the officers’ assertion of qualified immunity. The parties disagree on several facts material to the existence of probable cause, including whether Chase made her initial written statement under oath; whether Chase  omitted  the  full extent of the sexual contact  in  her  initial  statements  with  the  intent  to mislead authorities; whether Chase characterized the sexual contact as  consensual; the circumstances of her supplemental filing and its potential impact on a magistrate; and the contents and  weight  accorded to various  details  in  a  hypothetical corrected affidavit. Defendants-Appellants have not shown that they would be entitled to qualified immunity as a matter of law under Chase’s version of the facts, and thus we cannot consider their claim.

Tuesday, October 5, 2021

For labor-law fanatics only

This is a particularly complex labor law case involving the National Labor Relations Board and an electric company from upstate New York. The Court of Appeals rules against the company's efforts to avoid an agreement with a labor union, and the termination of an employee who is now entitled to damages.

The case is NLRB v. Newark Electric Corp., issued in September 17, more than a year following oral argument. Newark Electric was an electrical contractor owned by Richard Colacino, who turned the business over to his son, James, who formed a new corporation, Colacino Industries. James eventually formed a third company, Newark Electric 2.0. The union and James then entered into two Letters of Agreement, which would bring the companies into a multi-employer collective bargaining agreement. The first LOA involved the union and Newark Electric. The second involved Colacino Industries and the union. Later on, pursuant to the terms of the LOA, James cancelled the LOA with Newark Electric 2.0. A few days later, James told the union that this cancellation also applied to the LOA with Colacino Industries. 

The Court of Appeals hold that the first cancellation does not mean the second LOA is also cancelled. While the companies are single-employers and one is an alter-ego of the other (as they have common ownership, etc., the LOA did not supersede or merge with the first LOA. (Under normally circumstances a first contract merges with the second contract between the parties). The employer's legal arguments on this point have a superficial appeal to them, the Court of Appeals says, since the entities are a single employer/alter ego. But adopting that argument is a bad idea. The Court reasons:

it would be misguided to apply the merger doctrine to two contracts signed by facially distinct parties, relieving one of its voluntarily undertaken obligations, premised on an administrative agency’s post hoc application of a doctrine intended to further Congressionally endorsed aims to the contrary.


Monday, October 4, 2021

For federal practitioners only

The Federal Rules of Civil Procedure, and other procedural statutes in the United States Code, are a carefully-crafted set of rules that do not lend themselves to creative judicial interpretations. Unlike other statutes that contain vague or brief language, the Rules seem to anticipate any problem that may arise in civil litigation. Creativity in getting around the rules will usually fail. Like in this case.

The case is Taylor v. Medtronic, issued on September 30. Plaintiff sued this company over a defective mesh implant used during hernia surgery. He brought the case in Supreme Court, County of Broome, suing multiple defendants. For whatever reason, the defendants wanted to remove the case to federal court, which they can do if the parties are from different states and the case is valued over $75,000. If those removal factors are met, then removal to federal court is easy. 

It was not easy in this case, though. Under the removal statute, all defendants must agree to remove the case to federal court. Without unanimity, the plaintiff is left to litigate case against different defendants in state and federal court. Also, without unanimity, one defendant does not get to choose the forum for all other defendants. Who wants that? No one.  

In order to effectuate removal, all defendants must file a notice of removal within 30 days. Most defendants in this case did so, but not all. One defendant was untimely in filing its notice of removal. It failed to timely remove because it had mistakenly believed it was not properly served with the lawsuit. While the district court excused the late filing and allowed the case to be removed to state court, the Court of Appeals (Pooler, Park and Sullivan) reverses, and the case returns to Broome County. The Second Circuit reasons, "A properly served defendant cannot cure a failure to timely consent to removal by opposing a motion for remand when the opposition is filed after the thirty-day statutory period for removal lapsed."


Wednesday, September 29, 2021

Summary judgment for the defendants despite a (slight) issue of fact

A litigator learns early on her career how summary judgment works. That's because most civil cases are met with such a motion at the close of discovery. Any disputed issue of fact will deny the motion and the case goes to the jury to resolve those factual issues. But not every case. This is one of them.

The case is Bryant v. Iheanacho, a summary order issued on on September 23. Plaintiff, who is housed in some kind of state facility (the court decision does not clarify this) is suing for deliberate indifference to his medical needs. He says that two doctors never personally evaluated him. Under normal circumstances, plaintiff's testimony to that effect might send this case to the jury. But the Court of Appeals (Livingston, Chin and Nardini) notes that, in the summary judgment world, it has recognized "a narrow exception in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete" such that the case must be dismissed even though portions of that testimony highlight a disputed fact issue. That case was Jeffries v. City of New York, 426 F.3d 549 (2d Cir. 2005).

Summary judgment in this case is affirmed on authority of Jeffries. "Viewing the parties’ submissions in the light most favorable to the Plaintiff-Appellant, Bryant has failed to demonstrate that there is a genuine issue of material fact as to whether Iheanacho and Khan personally evaluated  him. As evidence that  the defendants never evaluated him, Bryant offers only his own inconsistent and largely uncorroborated statements." While an uncorroborated affidavit may in certain circumstances be enough to deny summary judgment (see Danzer v. Norden Systems, Inc., 151 F.3d 50 (2d Cir. 1998)), this is not that case. The Court of Appeals explains this falls with in the "extraordinary" exception in Jeffries:

Although Bryant at certain points denied being evaluated by Iheanacho and Khan, he admitted “that Dr. Iheanacho, when evaluating the plaintiff, concluded that [Bryant] had thoughts that were not based in reality.” In addition, Bryant’s expert witness testified at his deposition that, based on his review of themedical records and deposition testimony, he believed Bryant was seen by both Iheanacho and Khan. Further, Bryant’s alternative chronology purports to involve multiple  other  individuals,  none  of  whom  present  any  testimony  or  affidavits to corroborate Bryant’s  story. The Defendants-Appellees’  affidavits, by contrast, are  supported  by  detailed hospital records that record Iheanacho and Khan’s impressions of Bryant at the time of his two evaluations, including the assessment that Bryant appeared disheveled and perplexed at the time of  his  initial  evaluation,  that  his  speech  was  illogical,  and  that  he  was  in  need  of  immediate hospitalization.

You can see the Court of Appeals weighing the evidence here. But the Court takes the view that no reasonable jury can rule in plaintiff's favor, despite the slight factual dispute. The Bryant principle that I outlined above was not in place when I began practicing law in 1993, but I am seeing the Court of Appeals apply it maybe once or twice per year against the plaintiff. 

Monday, September 27, 2021

Court broadly interprets railworker retaliation statute

In an issue of first impression for any federal appellate court, the Second Circuit broadly interprets the Federal Railroad Safety Act, a law that protects rail workers from retaliation if they speak up about safety hazards.

The case is Ziparo v. CSX Transportation, Inc., issued on September 24. Plaintiff was responsible for using a tablet computer connected to the On-Board Work Order system (OBWO), which allowed them to record tasks as they were completed. These tasks included the placement of railroad cars. This was a work tool that was not mandated by law but allowed workers to more easily perform their duties. It also allowed management to monitor employee performance, such that supervisors got bonuses if their subordinates performed their duties more efficiently. With any eye on those bonuses, plaintiff's supervisors -- Lacy and Van Blarcom -- pressured him to fudge the numbers to inflate the performance metrics. This work environment caused plaintiff to suffer significant stress which, he claimed, made it more difficult to perform his duties and raised the risk of a train accident. After plaintiff complained about these pressure tactics, he was fired. 

Under the Federal Railroad Safety Act, “[a] railroad carrier . . . shall not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee for . . . reporting, in good faith, a hazardous safety or security condition.” 49 U.S.C. § 20109(b)(1)(A). This case poses two questions: what is a "good faith" complaint, and what is a "hazardous safety or security condition"? The district court said the good faith element requires the plaintiff show he had a reasonable belief of a safety concern. That was an incorrect interpretation of the statute, the Court of Appeals (Lynch, Sack and Park) says.

"Good faith" means does not have an objective component, the Court says. It means the employee believed in good faith that she was reporting a safety hazard. A sincere belief (even if an objectively wrong belief). Had Congress wanted the statute to have an objective component, it would have required the plaintiff to "reasonably" believe he was reporting a safety hazard. 

So plaintiff clears the first hurdle in this appeal. What about the requirement that he allege a hazardous safety or security condition? The district court said that requires the plaintiff to report a physical condition that is within control of the rail carrier, like a bad engine or faulty tracks. That is not how the Court of Appeals sees it. The Court finds that "hazardous safety or security condition" includes plaintiff's complaint that his supervisors' demands that he alter the numbers in his computer left him unable to focus on his work and that communication between him and his coworker over these demands had deteriorated such that it created an unsafe work environment and, as a result, "something was going to happen." Summary judgment is thus reversed and the case is remanded for trial.

Friday, September 24, 2021

NDNY upholds $240,000 damages award in prison beating case

The inmate in this case alleges that a correction officer beat the hell out of him in the prison, causing serious physical injuries. The jury agreed with the inmate awarding him $190,000 in damage for pain and suffering. The federal court upheld the jury's findings on liability and damages.

The case is Tranchina v. McGrath, 2021 WL 1599189 (N.D.N.Y. April 23, 2021). This case went to trial in the Northern District of New York. That venue is not considered a receptive place for plaintiffs' verdicts, but plaintiffs do win from time to time. What makes this case unusual is the plaintiff was an inmate. People normally do not believe prisoners who claim they were beaten up by correction officers. Not this case. The inmate won.

Plaintiff says Officer McGrath gave him a pat frisk when plaintiff was on his way to his regularly-scheduled classes in the prison. McGrath accused him of having a weapon, which plaintiff denied. Plaintiff says that McGrath actually planted a weapon on him. The pat frisk caused plaintiff to hit the floor and, while he was on the ground, McGrath  hit him repeatedly on the side of the head and ribs until he almost lost consciousness. Plaintiff says a second officer, Barnaby, kicked him in the face and groin. McGrath ultimately reported plaintiff for carrying a shank, but an internal investigation vindicated plaintiff. No shank! The jury found against McGrath, exonerated Barnaby, and awarded plaintiff $190,000 in damages.

Post trial, the state moves for judgment as a matter of law and, in the alternative, to reduce the damages award. But Judge D'Agostino says the jury had an evidentiary basis to find for plaintiff. Of course, the jury was not required to find in his favor, but once the jury enters its verdict, we assume that it credited all evidence favorable to plaintiff and rejected any evidence favorable to McGrath. That's why most post-verdict motions fail.

The medical records show that plaintiff sustained serious injuries to the right side of his head. While McGrath argues that the jury only speculated that he caused these injuries in light of plaintiff's testimony that other officers also beat him up that day, Judge D'Agostino agrees with plaintiff that this verdict was not grounded in speculation, as the jury was able to distinguish between the injuries caused by McGrath and those caused by other officers. That's what juries are for. While McGrath says that some of plaintiff's testimony supports McGrath's argument that McGrath was not responsible for the injuries, "the jury is free to believe as little or as much of a witness' testimony as they deem appropriate," even if that witness is the plaintiff. The Court cites Zellner v. Summerlin, 494 U.S. 344 (2d Cir. 2007), for that proposition.

What about damages? Judge D'Agostino surveys damages awards in other cases and finds the $190,000 in this case falls within the reasonable range. If you want a good summary of such cases, take a look at this ruling. Cases like this range from $25,000 to $200,000 depending on the nature of the injuries.

The jury also awarded $50,000 in punitives. That amount is also upheld, as the evidence actually shows McGrath beat up the plaintiff because he had been flirting with McGrath's girlfriend at the prison. The evidence also suggests that McGrath planted a weapon on plaintiff in order to  get him in trouble. Of course, there is no legitimate justification for such actions. Hence, the punitive damages.

Wednesday, September 22, 2021

Seven-figure verdict in sexual harassment case

This case involves horrible sexual harassment. The plaintiff worked for law firm and alleges she was raped by a lawyer. I will spare you the details. The law firm obstructed discovery, violated court orders, tried to purchase the plaintiff's testimony, and the court ultimately awarded plaintiff a default judgment. The defendant lawyer fled the country. The district court awarded the plaintiff $350,000 for emotional distress and $700,000 in punitive damages, plus $24,000 in lost wages.

The case is Villalta v. JS Barkats, PLLC, 2021 WL 2458699 (S.D.N.Y. April 16, 2021), report and recommendation adopted, 2021 WL 2458023 (S.D.N.Y. June 16, 2021). Case values are hard to predict, because juries are not told what to award if they find liability. This was an inquest hearing, however, before the magistrate judge.

After finding that plaintiff proved her sexual harassment and constructive discharge case through evidence of the pervasive sexual harassment in the workplace and the individual defendant's forcible sexual acts on the plaintiff, the court turned to damages. While Title VII imposes a $300,000 cap on pain and suffering, there is no such cap on New York City Human Rights Law claims. Hence, the high damages award.

Employment discrimination lawyers know there are three categories of damages in the Second Circuit: "garden variety," significant, and egregious. Garden variety damages, usually without psychological treatment, range from $30,000 to $125,000. Significant damages range from $50,000 to $200,000. Egregious damages "generally involve either outrageous or shocking discriminatory conduct or a significant impact on the physical health of the plaintiff." These damages can far exceed $200,000 "with awards over $1 million reserved for the most egregious cases." In support of the $350,000 award, the magistrate writes:

Here, the Court has no difficulty in concluding that an award of “egregious” emotional harm damages is appropriate. To recap: Barkats twice sexually assaulted Villalta in the workplace, coercing her into performing oral sex and engaging in sexual intercourse – once as a condition for her to obtain her job, and a second time on her first day of work to demonstrate what would continue to be expected of Villalta if she wanted to keep her job. Barkats choked Villalta and told her that she belonged to him. These physical assaults were followed by ongoing harassment carried out through text messages and social media posts, including Barkats’ threat to disseminate revenge porn depicting Villalta and his multiple attempts to purchase Villalta's testimony. (Villalta Decl. ¶ 15 and Ex. B.)


Villalta's emotional trauma was severe and long, persisting to the present, even after more than six years since the physical assaults. Villalta treated with a therapist, albeit sporadically and for a brief period less than half a year, who confirmed that she suffered from paranoia, anxiety, depression, and alcoholic episodes when attempting to cope with Barkats’ assault and abuse. (Urban Decl. Ex. A at 1, 2, 4.) She had trouble maintaining employment, particularly due to her fear of working for a male superior. Villalta resorted to self-harm, thrice cutting herself, and experienced suicidal ideations after feeling as though all hope was lost. (Villalta Decl. ¶¶ 7, 11-12, 19.) She ate to relieve stress, gained over thirty pounds, and then underwent surgery to remove that weight in attempting to mentally recover and repair her self-worth. (Villalta Decl. ¶¶ 10, 18-19.) In short, Villalta has suffered extensive and ongoing mental and physical harm.

As for punitive damages, the judge awards plaintiff  $700,000. The judge writes:

Barkats’ assault and harassment of Villalta is reprehensible in its own right. Villalta came to Barkats as a financially vulnerable young woman, willing to accept a $30,000 annual salary despite being subjected to sexual assault during her job interview, only to face another sexual assault on her first day of work. (Villalta Decl. ¶ 4.) Barkats’ conduct was violent, willful, malicious, and intentional.13 He caused Villalta both physical and lasting psychological harm. Any “reasonable employer” would have known that he was violating Villalta's legal rights; all the more so given that Barkats is an attorney and JSB a law firm.

It also was hardly isolated. As previously explained, Barkats committed similar acts of quid quo pro sexual discrimination and harassment just one year prior to his assaults on Villalta. (Shivecharan Aff. ¶¶ 3-12.) Barkats’ sexual coercion of Villalta and Shivecharan are among the more heinous examples of the hostile work environment Barkats and JSB foisted on all of their female employees, belittling them, criticizing their looks and dress, instilling fear in them, and reducing them to tears. (Spinelli Aff. ¶¶ 8-16.)


Meanwhile, Barkats remains undeterred despite this lawsuit. Rather than owning up to his transgressions, he fled the country as a fugitive, all the while delaying Villalta's case and engaging in dilatory litigation tactics. More pointedly, he has continued to harass Villalta with texts, threatening to retaliate against her for her ongoing efforts to obtain a measure of justice. Barkats has even gone so far as to attempt to suborn perjury, offering Villalta monetary “reward” for testimony that she was wrong.

Tuesday, September 21, 2021

$1.50 million verdict for pain and suffering reduced to $50,000

The jury enters its verdict and everyone goes home. Except for the lawyers, the parties, and the judge. The jury goes home, unaware that the case will continue as the losing side petitions the court to ether vacate the verdict entirely or reduce the damages award. This case is a good example.

The case is White v. New York State Office of Children and Family Services, 2021 WL 282561 (N.D.N.Y. Jan. 28, 2021), a racial discrimination case brought under Title VII, in which the jury awarded plaintiff $1.5 million in pain and suffering, $183,000 in back pay and another $30,000 in lost pension income. What stands out is the pain and suffering award, for two reasons: first, Northern District juries usually do not award large damages awards like this, and second, lets face it - that's a lot of money for pain and suffering. Very few single-plaintiff seven-figure verdicts have survived in the Second Circuit.

The State asked the trial court to vacate the verdict entirely. Judge Scullin will not do so, noting that while the court "may weigh the evidence and the credibility of witnesses and need not view the evidence in the light most favorable to the verdict winner," "this is not a permission slip to ignore the jury's role in resolving factual disputes and assessing witness credibility." Moreover, "a court may only grant a motion for a new trial if the jury has reached a seriously erroneous result or [its] verdict is a miscarriage of justice." The court does not get into the facts here, but the judge finds there was enough evidence of racial discrimination to support the verdict.

Post trial, the State also asked Judge Scullin to reduce the damages. Initially, the pain and suffering award is immediately reduced to $300,000, the cap under Title VII. But that does not end the analysis. The State argues that even $300,000 is too much for the plaintiff, based on his actual evidence of pain and suffering. 

The trial court thus reviews verdicts over the last 10 years to gain a sense of the going  rate for so-called "garden-variety" pain and suffering cases, where the plaintiff has not received extensive psychological treatment or suffered permanent emotional injuries. If you are looking for recent cases on the pain and suffering value of discrimination cases, this case provides a good summary. Judge Scullin concludes:

After reviewing the factual situations in all of the above-mentioned cases and comparing them to the facts in this case, the Court, applying the "least intrusive standard," concludes that $50,000 is the maximum amount that would compensate Plaintiff for his emotional injuries without being excessive. Therefore, the Court conditionally denies Defendant's motion for a new trial on the issue of compensatory damages on Plaintiff's accepting a remittitur of the compensatory damages award to $50,000.

Friday, September 17, 2021

Divided Court rejects inmate's medical treatment claim

You don't see too many claims alleging that prison officials were deliberately indifferent to the medical needs of inmates. These cases are hard to win. To bring a constitutional claim, the inmate needs to show the officials were deliberately indifferent, and not merely negligent, in their treatment. As I have learned from handling these cases, it is difficult to survive a motion to dismiss under Rule 12 because the inmates do not have medical information or expertise to prove it was deliberate indifference and not negligence. This is one of these cases, and plaintiff loses.

The case is Darby v. Greenman, issued on September 16. The plaintiff was an inmate at Rikers Island. He began to experience inflammation and pain in his right cheek area, and dental clinicians fond a 3x3 centimeter bulge in his gums. Two dentists saw plaintiff. The first, Greenman, recommended a tooth extraction, which plaintiff said was unnecessary. The pain persisted, and plaintiff continued to request dental treatment. He says no one responded to his requests. Another dentist, Hamilton, later treated plaintiff and performed a dental cleaning, even as plaintiff continued to complain about the significant pain in his mouth. Those complaints were ignored. 

This case was dismissed under Rule 12, which is pre-discovery, on the basis that plaintiff did not plead that the dentists were deliberately indifferent. The Supreme Court devised that standard for inmate medical treatment claims and, in doing so, said that mere negligence does not violate the constitution. But the difference between deliberate indifference and negligence is a fine one, and it is tough to allege the latter when the inmate may not have the medical records or the expertise to properly allege deliberate indifference and not just negligence. Hence the few cases in the Second Circuit where the inmate prevails.

Plaintiff loses against Greenman. The Court of Appeals (Cabranes and Park) says:

Darby  does  not  claim  that  Greenman  denied  him  treatment  but instead disagrees with Greenman’s assessment of the severity of his condition and recommendation for treatment. This constitutes, at most, a difference of opinion about the proper course of treatment; it does not demonstrate deliberate indifference to a substantial risk of harm to Darby’s health. Even assuming that Greenman’s proposed treatment was inadequate, “mere medical  malpractice  is  not  tantamount  to  deliberate  indifference”  absent  a showing of “conscious disregard of a substantial risk of serious harm.”Thus,  Darby  has  not  alleged  that  Greenman  acted  with  deliberate indifference under the Fourteenth Amendment.

We have a similar analysis as to Hamilton, who gave plaintiff a dental cleaning over his objections about the pain in  his gums. The Court sees this as an allegation that Hamilton were merely negligent.

Judge Carney dissents, noting that inmates in the U.S. often receive lousy dental treatment, citing studies and other lawsuits to that effect. She thinks plaintiff has sufficient plead a deliberate indifference claim. She sums up this way:

For over four months while incarcerated at Rikers Island, Darby experienced severe gum pain from an almost golf-ball sized abscess in his mouth. He had trouble sleeping, eating, and talking, and lost twenty pounds as a result. As we have commented before, “Any person who has spent a night tossing and turning in suffering from an abscessed tooth knows that dental pain can be excru[c]iatingly severe.” Although he saw two prison dentists and filed over 15 sick call requests that described his symptoms in detail, Darby received no real care for a condition that was eminently treatable by gum surgery. Instead, one dentist offered a tooth extraction; the other, a dental cleaning.

I am concerned that the Majority’s decision affirming the district court’s dismissal of Darby’s complaint may work to immunize the relevant prison officials from liability in Darby’s and in other cases. In my view, the course of events specifically alleged by Darby could—if borne out by evidence—reasonably support a determination that the officials and dentists were deliberately indifferent to his serious medical needs.




Tuesday, September 14, 2021

Trial court is where the action is

When a party loses at trial, the first instinct is to consider an appeal. Surely the Court of Appeals will see that I got an unfair trial right? Maybe not. The appellate courts don't like to second-guess juries, even if the plaintiff had a good case. Trial judges also have discretion to make certain rulings at trial.

The case is Aponte v. Kanbur, a summary order issued on August 30. This is a police misconduct case, an issue that creates strong emotions on all sides. The plaintiff knows that many jurors sympathize with the police and may even have a relative in law enforcement. But we also know that attitudes have changed over time and that the public is more aware of police misconduct than ever before. 

Against that backdrop, this case went to trial. Plaintiff says the officer, upon arriving at this residence for a domestic violence issue, used "a martial arts lock choke hold" against him, slammed him against the wall and strangled him -- all without any provocation. The jury entered a verdict for the police officer.

It is not enough to claim on appeal that you had better and more logical witnesses than the other side. Jurors decide credibility, not the Court of Appeals. The best way to challenge an adverse verdict is to claim the trial court made evidentiary errors and issued a bad jury instruction. That's what Aponte does here. But the Court of Appeals (Parker, Lynch and Bianco) upholds the verdict.

One issue is whether the trial court should have allowed plaintiff to tell the jury that the officer was arrested for domestic violence in a separate incident against his wife. The charges from that arrest were dismissed, and an internal affairs investigation examined the incident. No, the Court of Appeals says, this is propensity evidence, and we can't tell the jury that the defendant has a tendency to use chokeholds in domestic incident when he is verbally challenged. This propensity evidence may make sense to the layperson, but the federal rules of evidence are clear that, for the most part, propensity evidence is inadmissible. 

Plaintiff also wanted to prove to the jury that the NYPD disapproves of chokeholds. The trial court denied that effort. Even if the trial court's ruling was an abuse of discretion, that is not grounds for a new trial, the Court of Appeals says, because it was harmless error. That's because the officer himself testified that the NYPD prohibits chokeholds, and he denied applying one to the plaintiff.The jury was entitled to believe the officer's testimony that he did not apply any chokehold, and it also heard evidence that chokeholds are improper under departmental policy. Harmless error.

What about the jury charge? Plaintiff wanted the judge to instruct the jury that officers need a warrant make an arrest inside someone's home. The trial judge rejected that charge. That was not error, the Court of Appeals said. While officers need a warrant to make an arrest, plaintiff did not bring a false arrest case, and in excessive force cases, the rules are different. The question in excessive force cases is whether the officer's use of force was objectively reasonable under the circumstances, not whether the officer had a legal basis to enter the house and arrest plaintiff.

Friday, September 10, 2021

Malicious prosecution case will go to trial

I have seen false arrest and malicious prosecution cases come and go in the Court of Appeals, which often dismisses such claims upon the finding that the police had probable cause to arrest the plaintiff, a solid defense to these cases. In this case, however, the Court of Appeals reinstates a malicious prosecution claim because the jury may find there was no probable cause to arrest the plaintiff.

The case is Kee v. City of New York, issued on August 30. Kee was arrested on drug charges after the detective claimed to see him smoking marijuana in a motor vehicle. Kee says he was never in the car and was not using drugs in or near the car. The detective's "observation" formed the basis for Kee's arrest, as he provided the "information" the prosecutor needed to proceed with the charges against Kee, which were ultimately dismissed on speedy-trial grounds. 

When the charges are dismissed, that opens the door for a federal lawsuit. A federal judge in White Plains used to say that all the time. But that is not always the case. If the police have "arguable" probable cause, there is no false arrest or malicious prosecution case. To win the case, the plaintiff essentially has to show he was set up or that the police were lying or that his conduct did not come close to a criminal violation.

The district court dismissed the malicious prosecution claim, ruling there were no disputed facts on probable cause. The Court of Appeals (Bianco, Lohier and Abrams [D.J.]) disagrees, and we've got ourselves a trial here. 

Plaintiff makes the case that the detective lacked probable cause in a common-sense and simple way: he argues he was never in the car that day, he was not using drugs that day, and his cell phone that the detective claimed to find in the car was actually taken from his person. In other words, plaintiff says, he did not commit any crime and was not even at the scene of the crime. "If the testimony of Kee and Tavares [the owner of the car] is credited, . . . there is insufficient evidence in the record from which a rational jury could find that probable cause to prosecute Kee for the drug offenses was lacking."

Wednesday, September 8, 2021

Court rules in union's favor on NLRB challenge

The Court of Appeals has sided with a labor union in its challenge to management's unilateral personnel decisions that imposed a mandatory six-day workweek for unionized technicians. This is one of those rare moments when the Second Circuit reverses a decision of the National Labor Relations Board.

The case is International Brotherhood of Electrical Workers v. National Labor Relations Board, issued on August 12. The employees worked for ADT in Syracuse, the company that manufactures security systems for home and the office. After ADA issued the six-day workweek order, the union objected, claiming the collective bargaining agreement disallowed that directive. The CBA does state that management has a general right to determine the amount of work required of its technicians. But it also states that the workweek shall be 40 hours during any one workweek, or 8 eight hours for each workday, noting further that the normal work schedule is 8.5 hours comprising of five consecutive days, Monday through Saturday, between 8:00 am and midnight. It also provides for a four-day workweek comprised of 10.5 hour workdays between 8:00 am and midnight, Monday through Friday. Under the CBA, some employees may have to work early in the morning to meet customer needs, starting at 7:00 a.m. 

When a private equity group purchased ADT in September 2016, it imposed a mandatory six-day workweek for service and installation technicians to meet customer demand. This new rule took effect without any bargaining with the union, which brought its case to the National Labor Relations Board, which in turn upheld the directive and said no bargaining was necessary.

The Court of Appeals (Walker, Chin and Leval) reverses and rules for the union. Under the National Labor Relations Act, management must negotiate work rules with the union unless the CBA permits those changes. In years past, the NLRB used the "clear and unmistakable waiver" standard in determining whether the CBA permitted unilateral changes in work rules. The union's challenge would fail if the new rules were unequivocally and specifically authorized by the CBA, such that the union would have "waived" its challenge. Under new NLRB rules, we have a new test: the "contract coverage" test that says "where the employer acts pursuant to a claim of right under the parties' agreement, the resolution of the refusal to bargain charge rests on an interpretation of the contract," not on a "waiver" analysis. Under this standard, the CBA does not have to specifically mention or address the management decision. Instead, we apply traditional contract interpretation principles. 

Under the new standard, the union wins the appeal, and the NLRB got it wrong in this case. The Court reasons:

we  adopt  the  “contract  coverage”  test  as  the governing  standard  for  determining  whether  a  CBA  permits  an employer’s unilateral change to an established policy.  Applying that test here, we find that (1) the CBAs did not grant ADT the right to unilaterally impose a mandatory six-day workweek on technicians in the Service Department at all, and (2) the CBAs did not grant ADT the right  to  unilaterally  impose  a  mandatory six-day  workweek  on technicians  in  the  Installation  Department  without  complying  with the two-step procedure.  Accordingly, we conclude that ADT violated Sections 8(a)(5) and (1) of the Act by failing to bargain with the Union before implementing the change.

Thursday, September 2, 2021

Speedy trial dismissals no barrier to malicious prosecution claims

If you are the victim of a bad arrest, there are a few claims that might be available to you. One claim is false arrest. Another is malicious prosecution. These claims sound alike, but they carry different elements for the plaintiff to establish. This case involves malicious prosecution, in which the Court of Appeals clarifies the law in favor of plaintiffs. We also have a false arrest claim, which fails.

The case is Kee v. City of New York, issued on August 30. Plaintiff was arrested after the police claimed to see drugs in his car. Plaintiff said he was never even in the car and was not using drugs that day. So he claims the police fabricated the evidence against him. The charges against plaintiff were later dismissed on speedy trial grounds; the prosecution did not bring the claim quickly enough under the statutory deadlines.

Plaintiff sues the police for false arrest and malicious prosecution. Probable cause to arrest is a defense to any false arrest claim. As the Supreme Court has defined the claim, if the police have probable cause to arrest and detain the plaintiff on any charge, even if they did not charge him with that particular offense, then there is no false arrest claim. While plaintiff was charged with drug offenses, the Court of Appeals holds, even if there was no probable cause on those charges, a reasonable police officer would still arrest him for loitering and gambling offenses, both of which arise from plaintiff rolling dice on the streets. So the false arrest claim is gone.

What about malicious prosecution? That claim may proceed if the police persisted in prosecuting the claim without any reasonable basis. Plaintiff says there was no probable cause to prosecute on drug offenses. The Second Circuit (Bianco, Lohier and Abrams [D.J.]) says the police are not entitled to summary judgment on this claim because the parties dispute whether plaintiff was in the drug car.

The real story in this case is the favorable termination element. To win a malicious prosecution claim, the plaintiff has to show the criminal charges terminated in his favor; that proves the charges truly lacked merit. There has been confusion in this Circuit over whether a speedy-trial dismissal constitutes  a favorable termination, that is, whether it really means there was no viable criminal case at all. The real question is whether the criminal court dismissal indicates the criminal defendant was innocent. in 1997, the Second Circuit held in Murphy v. Lynn that we may assume that a speedy-trial dismissal suggests the prosecutors did not think there was a reasonable ground for prosecution. But you know how things work with case law. Over time, lower courts will interpret prior cases differently, and subsequent appellate rulings may cast doubt on a prior ruling, as well. Bottom line: the Second Circuit in Lanning v. City of Glens Falls, 908 F.3d 19 (2d Cir. 2018), a recent malicious prosecution case, did not repudiate the language in Murphy, which remains good law and binding precedent. That's a win for this plaintiff.

Wednesday, September 1, 2021

Covid/Second Amendment case fizzles out on appeal

This case lies at the intersection of two current-events stories: Covid and guns. That's right, Covid and guns. 

The case is Connecticut Citizens Defense League v. Lamont, issued on July 28. When Covid-19 began infecting the country in early 2020, the Connecticut governor empowered police agencies to refuse collecting fingerprints of applicants seeking authorization for firearms. Without fingerprinting, you can't get a firearm. Hence, this lawsuit under the Second Amendment. This has all the makings of a great lawsuit, as the district court ordered the state to resume fingerprinting services. But, it turns out, the district court had no jurisdiction to even resolve the case because the case became moot in the district court and the plaintiff-organization lacked standing to bring the case. So it all fizzles out without a definitive ruling from the Court of Appeals. 

The reason for the fingerprinting suspension was to prevent the spread of Covid, and to allow the police to focus on dealing with the public health crisis. But before the district court issued the injunction against the suspension, the police-chief defendants resumed fingerprinting at their departments, and the governor then decided to repeal the suspension entirely. 

What it all means is the case was moot before the district court ruled on the injunction motion. It's hard to get around this, as the courts will not presume the government will resume unlawful rules that it had rescinded. 

What also kills off the appeal is the Court of Appeals' finding that the plaintiff-organization lacks standing to bring the case. Yet, we have organizational standing to sue on behalf of its members, but it has to show that it diverted its activities in challenging the rules. While the organization says it lobbied against the suspension rules and communicated with its members on the issue, it has to show current activities, however. The organization cannot show any current activities. As such, no standing.

Tuesday, August 31, 2021

Conservative group has no standing to challenge law review membership and article policies

Law review is a prestigious assignment for law students, as they get to edit and publish scholarly articles written by law professors. This case challenges the selection process for law review, as a conservative organization claims the law review's racial and gender preferences violate Title VI and Title IX of the Civil Rights Act, which prohibits gender and racial discrimination in education. The organization loses because it lacks standing to sue.

The case is Faculty, Alumni, and Students Opposed to Racial Preferences v. New York University, issued on August 25. The law review at NYU has 50 student editor positions, 12 of them chosen by a committee that considers in part race, ethnicity, gender, and sexual orientation, along with ideological viewpoint, age, socio-economic background and other factors, including a resume that does not identify them by name. Plaintiffs say this will favor women, racial minorities and LGBT applicants. The law review also includes race and sex considerations in its article-selection process. 

The plaintiff organization claims its members have submitted articles to the law review and will do so in the future, and that the law review's membership and article-selection process will discriminate against white or male authors. Plaintiff also says the diversity requirements will result in having their submissions judged by less-capable editors "who made law review because of diversity criteria, and who leapfrogged students with better grades and writing-competition scores," a process that will hurt the authors who require law review publication to advance their academic careers. 

A threshold issue in cases like this is whether the organization has standing to bring the case. But there is no associational standing to bring this lawsuit, the Court of Appeals (Cabranes, Menashi, and Leval) writes, because the organization does not allege factors that suggest its members will be adversely affected by the law review's practices. The organization will not identify its members for purposes of this lawsuit, and the complaint does not state if and when its members submitted articles. There is no concrete way to know if the organization's members will be affected by the race and gender rules. Moreover, the possible harm is too attenuated for a lawsuit, as the complaint alleges that its members intend to continue submitting articles and intend to apply for law school jobs. The court writes that "some day intentions" are not enough to prove "actual or imminent injury," necessary requirements for standing to sue. So, no standing, no lawsuit.

Monday, August 30, 2021

State cannot prove irreparable harm in abortion-clinic protest case

The State of New York sought a preliminary injunction against an anti-abortion group that was protesting an abortion clinic in Queens, New York, allegedly harassing patients and interfering with the clinic's operation. She did so under the Freedom of Access to Clinic Entrances Act and state law. The district court denied the injunction, and the Court of Appeals affirms.

The case is People of the State of New York v. Griepp, issued on August 26. This case previously went to the Court of Appeals last year, which remained the case to the district court on the basis of evidentiary errors. That was a complex ruling, with a dissent and extensive discussions of evidentiary rules that trial lawyers love but will put everyone else to sleep. The defendants asked the Court of Appeals to reconsider that ruling, hence this decision

The State loses the case on appeal because it did not prove irreparable harm, a necessary requirement for any preliminary injunction (you also have to prove likelihood of success on the merits). The case returns to the district court "for a full consideration of the merits." After all, since we are still at the preliminary injunctions stage, the court still has to resolve the case without an expedited schedule, presumable with further consideration of the evidence. It may not look good for the State on remand, as the district court has already ruled it cannot show a likelihood of success on the merits, but the losing party in the injunction context does get a second chance on a full record to change the judge's mind.

Saturday, August 28, 2021

Fox News sexual harassment case must be resolved in federal court despite arbitration clause

If you're a fan of federal jurisdiction, this case is for you. The plaintiff is a former Fox News commentator who sued the network and Roger Ailes for sexual harassment and retaliation. But there was an arbitration clause in her contract. She sued in federal court anyway, triggering a round of motion practice that wound up in the Court of Appeals. 

The case is Tantaros v. Fox News Channel, issued on August 27. Arbitration clauses take the case out of the courts and into a private justice system. In response to the Me-Too movement, New York tried to deal with this a few years ago in enacting CPLR 7515, which prohibited mandatory arbitration clauses in sexual harassment cases except where inconsistent with federal law. Under the Federal Arbitration Act, arbitration clauses are enforceable. This means that Section 7515 has a trap door for plaintiffs.

Plaintiff filed her case in state court but defendant tried to remove it to federal court on the basis that the case raises a federal claim. State court cases that raise a federal claim can be removed to federal court. Plaintiff opposed that motion, arguing this is not really a federal case. The district court disagreed, and the Court of Appeals (Walker, Cabranes, and Wesley in dissent) disagrees, and the case returns to state court, where I presume Fox News will then try to enforce the arbitration clause and take the case out of the courts completely.

Judge Walker says this case raises a federal claim because it turns on a substantial question of federal law, as per the Supreme Court's analysis in the Gunn/Grable line of cases. Many state law claims cannot be removed to federal court even if they will raise a federal defense, i.e., state law defamation cases that will be met with a First Amendment response. But if the state court case implicates a substantial federal issue, it can be removed to federal court. That's this case, Judge Walker writes, because plaintiffs right to relief necessarily turns on a resolution of a question of federal law. That is, the court must apply federal law to the plaintiff's claim. Since Section 7515 contains a federal exception within that very statute, this case requires the court to consider federal law in determining whether Section 7515's prohibition against mandatory arbitration applies. 

Friday, August 27, 2021

Do the broken elevators in the NYC subway system violate the disability discrimination laws?

This class-action involves broken down elevators in the New York City transit system. A disability-rights groups sues the Metropolitan Transit Authority for disability discrimination because the broken elevators make it nearly impossible for some transit passengers to make it through the city. The Court of Appeals (Jacobs, Cabranes and Menashi) vacates summary judgment in favor of the MTA and remands the case to see if the MTA was providing the disabled plaintiffs a reasonable accommodation.

The case is Brooklyn Center for Independence of the Disabled v. Metropolitan Transit Authority, issued on August 23. While the vast majority of elevators are usually in working order, many are not, and commuters may encounter outages 8 to 15 percent of the time. This causes great inconvenience for commuters, since a single elevator is all there is at some stations, and many stations lack an elevator to begin with. Since most elevator outages are unplanned, it takes time to fix them. All of this will greatly affect the commutes for disabled transit users, as the outages are not isolated or temporary. 

After rejecting the Transit Authority's argument that the court lacks authority over the case because the court should not "become an elevator-repair watchdog," the court gets to the real issues, rejecting the MTA's argument that there is no disability discrimination because the system as a whole, including subways, buses and paratransit, is fully accessible. On a summary judgment motion, the "big-picture" defense will not always work.

But the district court, in granting summary judgment to the MTA, did not consider whether the transit system provides reasonable accommodations to disabled passengers who cannot use the subway because of the broken elevators. The court notes there are other ways to get around the city, including buses, to which the MTA can refer the public when the subways are not working. But the Court of Appeals cannot on this record determine whether the bus system is a reasonable accommodation under the Americans with Disabilities Act and federal regulations. One issue is whether the MTA provides the public with reasonable notice of the bus alternatives when the elevators are broken, i.e. proper signage and proper advance notice of the elevator malfunctions. Back to the district court does this case go.

Monday, August 23, 2021

Second Circuit protects fair-trial claims under Section 1983

The Court of Appeals has held that fabrication-of-evidence claims (also known as fair-trial claims) do not require the plaintiff to show the underlying arrest terminated in his favor, as that phrase is defined in malicious prosecution claims. In a victory for plaintiffs, this ruling confirms that fair trial claims are separate and apart from malicious prosecution claims.

The case is Smalls v. Collins, issued on August 20, 2021. The case was consolidated for oral argument and decision with Daniel v. Taylor. Along with Gregory Antollino, I argued this case on behalf of Daniel. This case represents as complex an analysis under 42 U.S.C. 1983 as you'll find, as the Court of Appeals had to take close look at a recent Supreme Court case and reconcile it with longstanding Second Circuit cases on fair-trial claims.

For years, the Second Circuit recognized that fair-trial claims, in which the plaintiff alleges the police fabricated evidence against a criminal defendant, are brought under the Due Process Clause, which protects the integrity of the trial process, even if there was probable cause to arrest the defendant. Malicious prosecution claims, on the other hand, are brought under the Fourth Amendment, which prohibits unreasonable searches and seizures, which means that the plaintiff cannot sue unless the criminal prosecution terminates in a manner indicating the defendant was innocent. That means ACD's and dismissals "in the interest of justice" make it impossible to bring a malicious prosecution claim. Under this calculation, plaintiffs are better off with a fair-trial claim than a malicious prosecution claim.

This distinction between fair-trial and malicious prosecution claims was placed in jeopardy in 2019, when the Supreme Court issued McDonough v. Smith, 139 S.Ct. 2149 (2019), which borrowed from malicious prosecution doctrine in holding that the statute of limitations on fair-trial claims starts when the criminal prosecution terminates in the criminal defendant's favor. The City of New York, and some district court judges in New York, interpreted McDonough to mean that fair-trial claims cannot proceed unless the criminal charge terminates in the defendant's favor, as per malicious prosecution claims. That is why Smalls' and Daniel's federal civil rights cases were dismissed: neither plaintiff's criminal case (on weapons charges) ended with a resounding verdict of acquittal at their criminal trials. Smalls' case terminated after the Appellate Division vacated his conviction because it stemmed from an unlawful search, and the remaining charge was dropped against Smalls on remand in criminal court, as that charge was the fruit of an unlawful seizure as well. And Daniel took an ACD. Under the City's analysis, fair-trial claims would essentially be folded into malicious prosecution claims, and these claims as a whole would be far less common as many criminal defendants, even in the face of police misconduct, end in ACD's and dismissals in the interests of justice.

The Second Circuit (Sack, Menashi and Kaplan [D.J.]) rejects the City's interpretation, holding that fair-trial claims are viable if the criminal case against the plaintiff has terminated, under principles set forth in Heck v. Humphrey, 512 U.S. 477 (1994), which holds that Section 1983 claims cannot proceed if they would necessarily undermine a parallel criminal conviction, such that, in the most obvious case, someone convicted in criminal court cannot claim the underlying arrest lacked probable case. In the fair-trial context, Judge Sack holds that "McDonough's accrual rule does not import malicious prosecution's favorable-termination requirement onto section 1983 fair-trial claims. Where the plaintiff asserts a section 1983 fair-trial claim based on fabricated evidence, all that is required is that the underlying criminal proceeding be terminated in such a manner that the lawsuit does not impugn an ongoing prosecution or outstanding conviction." Since Smalls and Daniel both had their criminal cases terminated before they filed suit under Section 1983, their cases are revived. For Small, that means his favorable Section 1983 verdict is reinstated. For Daniel, it means the Rule 12 dismissal is vacated and his case proceed to discovery.

Tuesday, August 17, 2021

En banc court upholds police search, producing passionate dissenting opinions

In a rare en banc ruling, the Second Circuit has held that a police officer legally searched a car passenger because he had reasonable suspicion that he was carrying contraband. The en banc ruling produced passionate dissenting opinions from three Circuit judges, one of whom suggested the search was actually motivated by race.

The case is United States v. Weaver, issued on August 17. It started when the police in their unmarked vehicle drove by a pedestrian who peered into the car window for a few seconds, "longer than one would typically look at a vehicle," one officer testified. The officers then saw the pedestrian, Weaver, tug his pants up as he approached another vehicle and got inside the car. Moments later, that vehicle activated the turn-signal too close to the intersection, and the officers pulled the car over. At that point, the officers grew suspicious of Weaver, who was pushing down on his pelvic area and squirming in the seat left and right. The officer thought Weaver was trying to push something down. They ordered Weaver out of the vehicle and made him stand spread-eagle against it; when Weaver did so, he seemed to be pressing his pelvic area toward the car. The officers conducted the search, finding guns and drugs.

The trial court denied the suppression motion, but the three-judge Court of Appeals panel overturned the trial court and said the search violated the Fourth Amendment because the officers acted on a hunch and lacked reasonable suspicion. Hearing the case en banc, the Court of Appeals rules, 9-3, that the search was legal.

Writing for the majority, Judge Nardini rules that the search was justified and that the suspicious behavior outside the vehicle (after Weaver was ordered to exit the car following the vehicle stop) factors into the determination of whether the officer had reasonable suspicion. This holding is a flash-point for the majority and dissenting judges. While the officer ordered Weaver to stand spread-eagle against the car, that order did not have any Fourth Amendment significance because it did not constitute a physical trespass or invade his privacy. While Weaver argues that a search begins when an officer pursues a course of action that would cause a reasonable person to believe he was being subjected to a search, that is incorrect, the majority says, and the real focus is whether the police committed a physical trespass into a protected area, or whether they violated a reasonable expectation of privacy. That order was not a search.

The search was otherwise reasonable, the majority holds, because by the time the officer searched Weaver, he had three times witnessed him make suspicious movements concentrated around his waist and pelvis: the pants tug on the street, the hip-shifting in the car, and the pelvic movements outside the vehicle. This evasive and furtive behavior is enough to support a Terry-stop.

In dissent, Judge Calabresi writes that search and seizure law has slowly creeped away from legitimate police practices because most published decisions on this issue are close-calls in favor of the police, prompting courts to push the line a little further each time in the officers' favor with each case. In part also because of qualified immunity, and that fact that an unlawful search may not create a financially viable lawsuit to start with, this means that few published cases favor the innocent people who are searched without producing any contraband. So the cases in this area mostly favor the police. An interesting dissent that notes that judges cannot relate to criminal defendants and will naturally identify with the police, figuring that police misconduct happens to other people, but not judges or their family and friends. He is especially critical of Supreme Court doctrine that precludes any consideration of an officer's subjective intent to searching and seizing motorists and other civilians, thereby permitting pretextual stops. Judge Chin notes in dissent that race may have been a factor in the decision to search and seize Weaver, noting that statistics show that Blacks are far more likely to be searched, arrested, and incarcerated, than Whites.

Thursday, August 12, 2021

For fans of constitutional "standing" only

The "standing" doctrine is not well known to non-lawyers, but you'll notice if comes up more and more frequently in high-profile cases as organizations and citizens try to overturn governmental policies, turning to the courts to address issues that they could not resolve through the political process. What we find in the standing cases is that not everyone can sue to overturn these policies. You have to satisfied strict standing policies as defined by the courts.

The case is Connecticut Parents Union v. Russell-Tucker, issued on August 11. The plaintiff organization (CTPU) sued the State of Connecticut over the state's standards regarding the racial composition of its interdistrict magnet schools. The organization claims the standards violate the Equal Protection Clause. Under the standards, "all interdistrict magnet schools in Connecticut [must] enroll at least 25% non-Black and non-Hispanic students." CTPU claims this requirement is a "hard racial quota." The organization claims that its efforts to repeal the standards has prevented it from devoting its time and energies to other matters, imposing "opportunity costs" on the organization.

When organizations challenge government policies in court, they always run into a standing argument. They have to show associational or representational standing to sue on behalf of its members. Or they can show standing if the organization is personally affected by the challenged policy. You don't see that very often. 

To show standing, the organization must show "an imminent injury in fact to itself as an organization (rather than its members) that is distinct and palpable" and "that its injury is fairly traceable to the challenged act." Plus it has to show "that a favorable decision would redress its injuries." The Court of Appeals has held that "an organization may suffer the requisite injury when it diverts its resources away from its other current activities" or suffers "some perceptible opportunity cost."

CTPU cannot show standing. The Court of Appeals (Cabranes, Lynch and Marrero [D.J.]) reasons:

Under CTPU’s argument, an organization could establish  standing by claiming to have  been  injured  by  any  law  or regulation touching any issue within the scope of its mission (which the organization itself can define) so long as it expends resources to oppose that law or regulation. For example, under CTPU’s theory of organizational standing, CTPU would be able to successfully plead an injury simply by pointing to any Connecticut law relating to education that it makes a significant effort to oppose. Accordingly, we reject such an expansive concept of organizational injury for standing purposes.

Where, as here, an organization is not directly regulated by a challenged law or regulation, it cannot establish “perceptible impairment”absent an involuntary material burden on its established core activities. In other words, the challenged law or regulation must impose a cost (e.g., in time, money, or danger) that adversely affects one of the activities the organization  regularly  conducted  (prior  to  the  challenged  act)  in pursuit of its organizational mission. For example, we have recognized that a cognizable injury may arise via a burden that is imposed on an organization when there is an increased demand for an organization’s services. But  we  think  that  expenditures  or  other  activities,  if incurred at the organization’s own initiative, cannot support a finding of injury—that is, when the expenditures are not reasonably necessary to continue an established core activity of the organization bringing suit, such expenditures, standing alone, are insufficient to establish an injury in fact for standing purposes. In other words, an organization’s decision to embark on categorically new activities in response to action by a putative defendant will not ordinarily suffice to show an injury for standing purposes, even if the organization’s own clients request the change.