Thursday, July 28, 2022

Law prohibiting jury nullification signs near the courthouse is not unconstitutional

This guy would stand outside the Bronx County courthouse with a sign that told passersby to "Google jury nullification." He wanted people to know that juries can render verdicts that would reject unjust laws. Judges do not tell jurors about jury nullification, and state law prohibits communications like this within 200 feet from any courthouse, as it might influence jurors to wreak havoc on the system. Does this law violate the First Amendment?

The case is Picard v. Magliano, issued on July 27. Picard was arrested for the sign, but the charges were dropped because it was unclear if he stood within 200 feet of the courthouse. He sues to strike down the law, arguing that he can be used against him again. The Court of Appeals therefore provides an extended discussion on plaintiff's standing to even bring the case, determining that he does have standing under the principle that "if a plaintiff's interpretation of a statute is reasonable enough and under that interpretation, the plaintiff may legitimately fear that it will face enforcement under the statute, then the plaintiff has standing to challenge the statute."

The State of New York is defending the case, having taken up the appeal in the first place, as the district court said the law violates the First Amendment on its face. The state does not disagree that, as applied to plaintiff, the law might be unconstitutional, perhaps because there were not trials going on the day he was arrested or no proof that any jurors were influenced by his sign. 

So the question is whether the statute is unconstitutional on its face. The Court of Appeals (Lynch and Park) says it is not unconstitutional, at least not on the limited preliminary injunction record before the district court. (In dissent, Judge Newman says the law violates the First Amendment on its face). While the law is a content-based speech restriction in that it prohibits placards dealing with jury nullification and nothing else, the statute is narrowly-tailored to satisfy a compelling governmental interest. While this is the most difficult legal standard to overcome in constitutional law, the state is able to preserve the statute because the compelling interest is preserving the integrity of the justice system in ensuring that jurors issue verdicts on the facts and law and not based on their personal beliefs. The statute is also narrowly-tailored because it only prohibits such speech close to the courthouse.

Wednesday, July 27, 2022

Interesting twist on hostile work environment claims and bankruptcy

You do not see this very often. A plaintiff claiming she suffered a hostile work environment lacks standing to pursue that claim because she did  not mention that claim in her bankruptcy petition. The Court of Appeals also finds that plaintiff cannot win her constructive discharge claim, either.

The case is Black v. Buffalo Meat Service, a summary order issued on July 22. When you file a bankruptcy petition, you have to list your assets. A legal claim is an asset. "All legal or equitable interests of the debtor in property as of the commencement of the case." That's from the bankruptcy law. The bankruptcy trustee then has ownership of the claim, not you, as a bankruptcy debtor. The twist here is that post-petition property will belong to the bankruptcy estate "if it is sufficiently rooted in the pre-bankruptcy past." 

The Court of Appeals (Livingston, Cabranes and Park) says Plaintiff cannot pursue her hostile work environment claim because she claims the work environment spanned her "entire employment," from 2005 through 2008. Since plaintiff's bankruptcy petition was granted in June 2009, less than one year before she resigned, and she did not list that claim in the bankruptcy petition, that claim is part of the bankruptcy estate. She lacks standing to bring that claim. The trustee, instead, has standing. 

She also asserts a constructive discharge claim. But these claims are hard to win. The Court wants you to show that management intentionally created an intolerable work atmosphere that forced you to quit involuntarily. People do win these cases, but that is a high evidentiary burden for plaintiffs. 

 Plaintiff's primary evidence on this claim is that a coworker used a racial slur in referring to her children. That is awful, but the Court notes that "we have have never held that the one-time use of a racial slur by a supervisor or a subordinate by itself supports a claim for a hostile work environment." Since a coworker made the racial slur, and not a supervisor, that makes her case even less compelling, notwithstanding case law holding that a racial epithet by a supervisor "can quickly alter the conditions of employment." In any event plaintiff cannot show that management's response to the slur was negligent or ineffective. While plaintiff suggests that management's response was ineffectual, that does not mean that management intended to force her to resign through its response.

Friday, July 22, 2022

Free speech retaliation case is dismissed

This case presents a harsh lesson for plaintiffs who are trying to prove they were terminated illegally. The Court reminds us that if management was already working to fire you, your protected activity (such as free speech or complaints about discrimination) will not always be the true case of your termination. Which means you have no case.

The case is Morales v. City of New York, a summary order issued on July 21. This is a free speech retaliation case. Plaintiff provided information to the a city agency that was investigating allegations against the Department of Citywide Administrative Services, where he worked. He was fired five months later. 

We have a bunch of issues here. The City argued that plaintiff did not even engage in free speech because, in providing this information to investigators, he was not speaking as a citizen (protected speech) but as an employee, pursuant to his job duties (not free speech). That distinction between protected and unprotected speech arises from the Supreme Court's Garcetti case (2006). You might argue that answering questions pursuant to an official investigation is still citizen speech because every citizen has a duty to answer these questions truthfully. But the Court of Appeals sidesteps that issue because it finds another way to dismiss the case.

The problem for plaintiff is that the employer began considering plaintiff's termination even before he participated in this investigation. The speech was June 2016. In spring 2016, management was discussing plaintiff's termination for reasons that are not clear in the court decision. "An employer's decision to proceed along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality." That's what the Supreme Court said in Clark County v. Breedon (2001). That rule undercuts plaintiff's case here, and summary judgment in favor of the employer is affirmed.. 

Wednesday, July 20, 2022

MTA officer wins negligence claim against his employer

The plaintiff was a MTA police officer who suffered an injury in the course of trying to arrest someone in a train station parking lot. He sued MTA for negligence, claiming the agency does not provide its officers with the right vehicle to apprehend suspects, i.e., there is no prisoner compartment in the vehicle. The jury awarded plaintiff $530,000, but MTA appeals, invoking an obscure defense: the governmental function defense. MTA also says plaintiff could not win the case without an expert witness. Plaintiff wins the appeal.

The case is Ojeda v. Metropolitan Transit Authority, issued on July 19. Plaintiff sued the MTA under the Federal Employers' Liability Act, a negligence law for federal employees. (New York does not have such a law, I believe, and you can only get remedies for employer negligence through workers' compensation). 

Under the government function defense, you can sue the government for negligence if the municipality's actions fall within the proprietary realm. What does that mean? If the negligence takes place when the governmental actions are taken for the protection and safety of the public, that's a governmental function. But even if we have a governmental function, to get this defense, the government has to show its decision was a discretionary action. In other words, discretionary misjudgments are subject to the government function defense. MTA does not have this defense, however, because it did not show at trial that its decision to give plaintiff an inadequate vehicle involved the exercise of reasoned judgment. While MTA gave plaintiff a vehicle without a passenger compartment, it did  not prove that it studied backup response times or that it assigned vehicles like through "reasoned judgment." MTA only provided conclusory argument on this point at trial.  

The next case will have a different result, I am sure. As we speak, MTA lawyers are reading the decision to determine how to win this defense at the next trial. I assume MTA has studied this issue of when to allocate patrol vehicles to its officers, and it will put that evidence in the record in seeking pre-trial dismissal. But that did not happen here, and plaintiff is able to protect his verdict. 

As for the expert witness issue, the Court of Appeals (Menashi, Wesley and Pooler) says the trial court acted within its discretion in allowing plaintiff to proceed without an expert. You generally don't need an expert in most cases, the Court notes, as juries are capable of determining when someone was negligent without a university smarty-pants lecturing them on right and wrong. In this case, the Court says, the jury was able to resolve that issue on its own without the assistance of expert knowledge.

Tuesday, July 19, 2022

When can you sue someone under the ADA because of their website?

The Court of Appeals has held that a plaintiff cannot sue a corporate entity under the Americans with Disabilities Act over its non-accessible website unless he can show he really intends to use the company's services.

The case is Harty v. West Point Realty, Inc., issued on March 18. I overlooked this case at the time but, hey, that's life. Under the Code of Federal Regulations, the websites for places of public accommodation (like hotels) must tell you how their places of lodging are compliant with the ADA such that disabled patrons will know if the hotel can accommodate their disabilities. What happened in this case was that plaintiff said the website for the Holiday Inn run by West Point Realty was not in compliance with the ADA. But Harty, who lives in Florida, does not allege he intended to actually stay at the hotel, in New York. Can Harty bring this lawsuit?

Harty cannot bring this lawsuit. He is a "tester," someone who tests places of public accommodation to see if they are ADA-compliant. (Sure enough, the SDNY docket system shows over 50 such cases). At most, he says that in the near future he intends to visit West Point Realty's website to test it for compliance with the CFR and possibly to use website to reserve a room at the Holiday Inn. That is not enough for a lawsuit, says the Court of Appeals (Sullivan, Calabresi and Parker).

Plaintiff needs standing to bring the case. That means he has to show there is a true case at stake, not a theoretical case. The mere existence of a statutory violation is not enough to confer standing; you have to show a current or past harm beyond the statutory violation. That's the rule in TransUnion v. Ramirez, 141 S. Ct. 2190 (2021), which the Second Circuit says alters the standing rules a bit for cases like this. Plaintiff has no concrete harm because he cannot allege that his ability to travel was hampered by the website; he has no plans to visit the area, and a beautiful area it is, I can tell you. Moreover, the fact that he alleges the website was discriminatory is not enough by itself to bring a lawsuit.

Thursday, July 14, 2022

Smorgasbord of PLRA grievance issues

Under the Prison Litigation Reform Act, inmates must file an internal grievance with the jail before they can bring suit in federal court over their civil rights violations. Prior to the PLRA (enacted in 1996), inmates could sue 'round the clock. The PLRA has limited these suits, but it has also given rise to reams of case law addressing when to excuse the failure to file an internal grievance. This is one of those cases.

The case is Saeli v. Cautauqua County, issued on June 8. Plaintiff says he was injured in jail when officers applied the handcuffs too tight while escorting him to a court appearance. He tried to grieve this, but an officer said the handcuffing policy was a County policy, not a jail policy, so it was not grievable. Two weeks later, plaintiff alleges, officers threw him to the ground in the shower and subjected him to further injuries.When plaintiff tried to grieve this incident, he claims, an officer threatened him in the event he followed through on the grievance. Plaintiff withdrew the grievance and instead complained the State Commission on Correction, which referred the complaint to the local sheriff, who investigated the incident. Following a disciplinary hearing at which plaintiff was found guilty of disobeying orders in connection with the shower incident, he revisited his formal grievance and handwrote that he was disciplined for his conduct arising from the shower incident. While plaintiff said he tried to submit this grievance to an unnamed officer, the county denies that and says he sent it to the Commission on Correction which in turn sent it to the sheriff, which investigated.

So we have a smorgasbord of grievance issues under the PLRA. Here is what the Second Circuit says about it.

1. On the excessive force/shower grievance that plaintiff claims he filed against the officers, plaintiff loses. He says he filed one but the jail never processed it. The Court says there is no evidence that plaintiff did so in a timely manner. Yes, even inmate grievances have deadlines like the rest of us. While there was an informal grievance from this incident (that plaintiff completed following the disciplinary hearing), that's not enough because that, too, was filed too long after the beating that comprised this informal complaint.

2. On the claim against the county, plaintiff wins the appeal. The jail's grievance policy says no grievance is required if it involves "issues that are outside the authority of the jail captain to control." Plaintiff says he was told the handcuffing policy was a county issue, not a jail issue. Policy documents demonstrate the accuracy of that. Since the handcuffing policy was outside the captain's control, plaintiff was not required to grieve the injuries. That case will proceed on the merits in the district court. 

Tuesday, July 12, 2022

False arrest in the mental health context yields qualified immunity for the police officers

This false arrest case involves the police arresting the mother of an autistic young man who was taken into custody to see if he required adult protective services. The mother got herself arrested for trespass after she kept showing up to the hospital where her son was being evaluated. Eventually, the mother was taken in for a psychiatric evaluation but was released three hours later without being charged with any crime. The trial court said the mother has a false arrest claim, but the Court of Appeals grants the officers qualified immunity, and the case is over.

The case is Guan v. City of New York, issued on June 17. The hospital admitted the son for an emergency psychiatric evaluation, and the mother insisted that she see her son because of his disability, autism, and how he might react to the evaluation. She was kicked out of the hospital but she returned. Defendants say she was screaming in the emergency room. It got so bad that the mother was taken to a separate hospital for an evaluation. Upon her release, she sued for false arrest.

Probable cause is a defense to any false arrest claim. That's probable cause to believe the plaintiff caused a crime. But in the mental health context, probable cause exists when the police reasonably believe a person is dangerous to herself or others. That's the rule in this case. Making it harder to win these cases, qualified immunity is available to the police if they have "arguable probable cause," where they reasonably but mistakenly think they have probable cause based on the facts known to them at the time. This is a forgiving standard for the police. 

The police had probable cause to take in the mother for a mental health evaluation. The Court of Appeals (Chin, Pooler and Carney) does not determine whether probable cause actually existed, as they find instead the police have qualified immunity. That immunity attaches if the police did not violate clearly-established law, as determined through Supreme Court and Second Circuit case law. 

In 2017, when plaintiff was arrested, no case at that point held that police officers could not arrest someone for a mental health arrest when probable cause existed for a criminal arrest, without an additional finding of dangerousness. Here, there was probable cause to arrest the mother for trespass. The tricky part is that the Court says that while there was probable cause for a trespass arrest, the officers needed reason to believe she also was a danger to herself or others to make the emergency mental health evaluation. That reasoning helps people going forward, but it does not help plaintiff, but that legal principle was not in place when this case arose in 2017. Since the state of the law was not clear at the time, the officers were not on notice they were violating plaintiff's constitutional rights, and she therefore cannot sue them.

Thursday, July 7, 2022

Citizens may sue their states under USERRA

The blockbuster cases that the Supreme Court recently handed down on abortion, guns, and religion left this particular case in the dust. The Court holds that the states may be sued for discriminating against military servicemen and veterans. 

The case is Torres v. Texas Dept. of Public Safety, decided on June 29. When the Constitution was enacted in 1787, the Eleventh Amendment said that states cannot be sued by their own citizens. There are exceptions to that rule, such as when a state consents to suit, or Congress enacts laws that pierces that immunity. The statute here, Uniformed Services Employment and Reemployment Rights Act (USERRA) gives returning veterans the right to reclaim their prior jobs with their state employers and generally allows servicemembers to sue their private employers who discriminate against them. 

Plaintiff, upon returning home as a state trooper after enduring hazardous conditions in the Army Reserves, was denied an accommodation to a different position. He sued Texas under USERRA. Texas moved to dismiss the case, claiming plaintiff cannot sue the state over this under the Eleventh Amendment. 

This issue is not as easy as you think. Eleventh Amendment jurisprudence is complex: citizens cannot invoke portions of the Americans with Disabilities Act against the states. But the Family and Medical Leave Act can predicate a lawsuit against the states. 

Writing for the 5-4 majority, Justice Breyer says the Eleventh Amendment's sovereign immunity allows suits against the states "if they agreed their sovereignty would yield as part of the 'plan of the Convention,' that is, if 'the structure of the original Constitution itself 'reflects a waiver of States' sovereign immunity." This concept is new to me, but this appears to be settled Supreme Court law.

Under this principle, Torres may sue Texas under "Congress' power to build and maintain the Armed Forces." The states delegated to the federal government all responsibilities for maintaining a national army, and states may not engage in war. "We . . . hold that as part of the plan of the Convention, the States waived their immunity under Congress' Article I power 'to raise and support Armies' and 'provide and maintain an Navy.'" T

Wednesday, July 6, 2022

Plaintiff loses website accessibility case under the Americans with Disabilities Act

The Americans with Disabilities Act requires places of public accommodation -- basically anyplace that welcomes visitors -- to make their places accessible for the disabled. That certainly is true for buildings. But it also applies to other places, like websites. Occasionally you hear about cases against businesses that do not comply with the ADA through their websites. I have not seen many cases in the Second Circuit on website accessibility. This is one such case, and the plaintiff loses.

The case is Laufer v. Ganesha Hospitality, LLC, issued on July 5. Plaintiff went to hotel reservation websites for Quality Inn in Connecticut but found no information about whether rooms or other features at the hotel are accessible. Because of this, plaintiff alleges, she was "deprived of the information required to make meaningful choices for travel," causing frustration and humiliation. The hotel moved to dismiss under Rule 12, claiming plaintiff has no standing to sue because she resides in Florida and has no definite plans to visit the hotel. The district court denied the motion because plaintiff suffered "informational harm" and therefore has standing.

These cases are sufficiently unique that few Second Circuit precedents address this issue. The hotel wanted to appeal. Under normal circumstances, it cannot do so and must wait until the case is finally concluded with a judgment against it. That can take years. We want to appeal now! The federal rules allow the district court to certify a case for early, or interlocutory, appeal if the case raises a unique issue that needs to be resolved in the Court of Appeals right away. This is such a case, and that's how it reaches the Second Circuit, which reverses and says plaintiff has no case.

There is no "informational injury" theory of standing under the ADA, the Court of Appeals (Leval, Menashi and Robinson) says. That's the rule in Harty v. West Point Realty, Inc., 28 F.4th 435 (2d Cir. 2022), another case involving a tester who sued under the ADA over website accessibility. In Harty, the Court said that without any intent to visit the location, the informational harm by itself is not enough to win an ADA claim. Summarizing the holding in Harty, the Court says:

“[e]ven assuming that Harty can allege that he was deprived of information to which he is entitled by the ADA, he must also allege downstream consequences from failing to receive the required information in order to have an Article III injury in fact.” Because “Harty asserted no plans to visit West Point or the surrounding area,” we concluded that “he cannot allege that his ability to travel was hampered by West Point Realty’s website in a way that caused him concrete harm.”
That reasoning ends Laufer's case. She did not allege concrete plans to visit Connecticut, let alone the Quality Inn in Cromwell, Connecticut. While plaintiff said she will visit the state once the Covid crisis is over, "those plans are no more definite than the plans of the respondent in Lujan v. Dept. of Wildlife, 504 U.S. 555 (1992), who said she 'intends to go back to Sri Lanka but that 'there is a civil war going on right now' and she did not know when she would return." The Court says "some day" intentions will not confer standing to sue under the ADA.