Friday, July 12, 2024

Metro-North may be liable for intoxicated taxi driver's accident

This is a personal injury case brought under the Federal Employers' Liability Act (FELA). Plaintiff worked for Metro-North Railroad, which called her a taxi ride home. The taxi driver, who had no connection to the railroad, was intoxicated and got into an accident, injuring the plaintiff. Is Metro-North liable for this?

The case is Francois v. Metro-North Commuter Railroad, issued on July 11. Your first instinct is that the railroad would not be liable because it did not employ the taxi driver. But FELA is an interesting statute. "There is a considerably more relaxed standard of proof for determining negligence in FELA cases, and a strong federal policy in favor of letting juries decide these cases." The Second Circuit said that in 1993, and it says it again in this case. The other relevant principle is that, "at the summary judgment stage, a FELA action must not be dismissed . . . unless there is absolutely no reasonable basis for a jury to find for the plaintiff." See the word "absolutely"? You don't see that in other summary judgment contexts. It means we usually let these cases go to trial.

This case will go to trial. First, however, the Court of Appeals holds that the railroad is not directly liable for plaintiff's injuries because there is no evidence that Metro-North knew the driver had a propensity to drink before driving, or that the driver would drive unsafely. That claim is gone.

But the railroad may be vicariously liable for the accident. This will be up to the jury. Metro-North concedes the taxi driver acted as its agent in driving plaintiff. And while the taxi company served as an intermediary in that it dispatched the taxi driver, the railroad does not argue that the intermediary severs or affects the agency relationship between the railroad and the driver. 

The railroad may be vicariously liable even though the driver had been drinking, as the prior act of drinking to the point of impairment does not mean the driver was not working within the scope of his employment. The key here is "scope of employment," a legal term of art that means someone's bad acts are still imputed to the company so long as he was still doing his job. "Just because a driver was intoxicated when driving does not mean that he was acting outside the scope of his agency, but only that he failed to use reasonable care under the circumstances." The Second Circuit cites a Seventh Circuit case for that proposition, which is now good law in the Second Circuit. "Although the prior act of drinking alcohol was outside the scope of the driver's agency, the subsequent act of driving his taxi while on duty was at least arguable within it."

Finally, while the railroad argues that it was not foreseeable that the driver would be impaired, that is not enough for the railroad to win summary judgment. Here is how the Court of Appeals frames this issue:

Again, in terms of direct liability, Francois introduced no evidence that Metro-North had any reason to suspect that the taxi driver would be impaired when it hired him. But in terms of vicarious liability—when the tortfeasor is the taxi driver, rather than Metro-North itself—we ask a broader foreseeability question from the railroad-principal’s perspective:

What is reasonably foreseeable in the context of respondeat superior is quite a different thing from the foreseeable unreasonable risk of harm that spells negligence. When we talk of vicarious liability we are not looking for the employer’s fault but rather for risks that may fairly be regarded as typical of or broadly incidental to the enterprise he has undertaken. And we look at “the harm that is likely to flow from the employer’s activity despite the reasonable precautions that might be taken.” In sum, for vicarious liability, courts examine the foreseeability of a general, rather than specific, risk of harm.



Thursday, July 11, 2024

Inmate wins ADA appeal arising from slip and fall in his cell

This disability discrimination case was filed by an inmate in Connecticut who alleges that the jail failed to stop a plumbing leakage in his cell, causing him to slip and fall on the water, exacerbating his preexisting injuries. The district court rejected the case upon finding plaintiff cannot show the injuries resulted from discriminatory intent. That's not how the Court of Appeals sees it, so the case returns to the district court for additional rulings.

The case is Sanchez v. Butricks, a summary order issued on June 10. Plaintiff is disabled and walks with a cane. In reasonable accommodation cases like this one, the plaintiff has to show the following:

When assessing a reasonable accommodation claim, we ask if the plaintiff, “‘as a practical matter[,]’ was denied ‘meaningful access’ to services, programs or activities to which he or she was ‘legally entitled.’” Hamilton v. Westchester County, 3 F.4th 86, 91 (2d Cir. 2021) (quoting Wright v. N.Y. State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016)). There is no requirement that the plaintiff show discriminatory intent to make out a reasonable accommodation claim.

Looking at the case from that angle, plaintiff has a better shot at victory. The Second Circuit says plaintiff may have a case. "Sanchez specifically alleged that he told the maintenance supervisor and Defendant Rodriguez about the leak and requested it be fixed on April 27, 2020, over two weeks before his fall on May 15th." As it happens, Rodriguez claims he “was transferred out of [Sanchez’s] unit at or near April 24, 2020,” and had no “further interaction with Sanchez.” But Sanchez disputes this factual assertion. That brings us to basic summary judgment principles. "If a jury were to credit Sanchez over Rodriguez, it could find that a prison official was aware of the dangerous leak a full eighteen days before Sanchez fell and injured himself."

But we have another problem: the Eleventh Amendment, which prevents you from suing the state for certain statutory violations. Cases hold that Title II violations under the Americans with Disabilities Act cannot be enforced against the state. Defendants did not assert this argument in the district court. They raise this issue on appeal, however. This is a complex area of the law. The Second Circuit notes that while it has held in the past that plaintiffs in Title II cases must show the violation was motivated by discriminatory intent, or ill-will because of the plaintiff's disability, that rule only applies to Title II violations that also violate the Equal Protection Clause. But Title II plaintiffs may argue that their violations are premised upon other Fourteenth Amendment rights. Plaintiff argues this exception applies to him because the Fourteenth Amendment protects prisoners who rely on public entities for basic services. 

As you can see, this issue is complex. Since the district court did not analyze the issues set forth above under the Eleventh Amendment, the case is remanded for the trial court to deal with all of this in the first instance.
 



Tuesday, July 9, 2024

Police shooting case will go to a jury

This case involves the use of deadly force to apprehend a fleeing motorist. The motorist was shot and killed by a Connecticut police officer. The decedent's family sues the officer for wrongful death, and the case will proceed to trial because the record does not conclusively show that the officer had cause to shoot the driver.

The case is Vega-Colon v. Eulizier, a summary order issued on July 8. After a different officer had reason to believe the driver was using unauthorized license plates, Eulizier approached the driver on foot. The following facts seem to be undisputed, at least in part based on video footage:

the parties dispute whether Eulizier intentionally blocked the road in front of the Infiniti, but soon after Eulizier performed this maneuver, Vega-Cruz lost control of the Infiniti and came to a stop. Eulizier then hit the front of the Infiniti with his vehicle, blocking it on the side of the road. He then exited his vehicle and drew his gun, yelling “show me your hands.” The Infiniti had begun to reverse in the direction of the road when [Officer] Salvatore arrived; Salvatore collided with the left side of the Infiniti. Eulizier, on foot, came around the front of Salvatore’s vehicle and stood near the front driver’s side of the Infiniti.

The dispute arises from what happened next. Did Eulizier intentionally step in front of the Infinity or merely move himself there? What we do know is this officer fired two shots into the windshield, killing Vega-Cruz. As the trial judge noted in denying this officer's motion for summary judgment on qualified immunity grounds, “[t]he parties dispute . . . the series of events leading up to [Eulizier’s] approach—specifically, whether he intentionally stepped in front of the vehicle or whether it was happenstance that as he came around Salvatore’s vehicle, he ‘found himself’ near the front of the Vega-Cruz vehicle.” The parties also dispute whether Vega-Cruz was moving his car slowly and was turning away from Eulizier, trying to avoid him as he tried to flee the scene. Eulizier says the driver accelerated towards him and he therefore shot the driver out of necessity.

These factual disputes cannot be resolved on a summary judgment motion. The jury will have to decide whether the officer reasonably fired into the car to protect himself, or whether firing the gun was excessive because the driver was trying to get away on his own. The law is clear that you cannot use deadly force to apprehend a fleeing motorist unless the officer has probable cause to believe the suspect poses a significant threat of death or serious physical injury to anyone, including the officer. 

The Court of Appeals (Bianco, Robinson and Merriam) finds that the jury must resolve these factual disputes. It also finds that if the jury credits the factual arguments advanced by Vega-Cruz's representatives at trial, it could also find that the officer violated clearly-established law and cannot invoke qualified immunity. But a win for the family in the Second Circuit does not automatically translate into a win for the family at trial. As the Court of Appeals notes, "the split-second nature of the decision to use force is a relevant and often important factor in assessing the objective reasonableness of the use of force and the parameters of qualified immunity in excessive force cases."



Thursday, July 4, 2024

What the Supreme Court did in the Presidential immunity case (Trump v. United States)

The Supreme Court has issued its most important case on Presidential authority in decades, and it might be the most important such case in the history of the Supreme Court. The 6-3 majority holds for the first time that the President enjoys certain implied immunities that will make it difficult, but not impossible, to charge a former president for criminal conduct. 

The case is Trump v. United States, issued on July 1. This case reaches the Court because, in summer 2023, a grand jury in Washington, D.C., indicted former president Donald Trump arising from his refusal to accept the results of the November 2020 election. These acts included conspiring with others to advance knowingly false claims of election fraud to get state and local officials to change the electoral votes in his favor, organizing a fraudulent slate of electors in targeted states to undermine the real electors chosen on Election Day, strong-arming the Vice President to ignore the certification on January 6, 2021 so that Trump may take the oath of office on January 20, 2021, and pushing Congress to delay the certification on that date. These charges are shocking and unprecedented in American history.

The charges are so unprecedented that the Supreme Court has never had a case like this, and it has never determined when and under what circumstances a former President may face prosecution for crimes that he committed in office. (Bear in mind that during the Watergate scandal, when President Nixon resigned in 1974, it was assumed that Nixon could be charged criminally for covering up crimes relating to his re-election campaign). Without any precedents on point, and without any provisions in the Constitution that directly speak to this issue, the Court has to decide upon a legal framework.

As an aside, the Court frequently must decide upon a legal framework in interpreting the Constitution, which mostly speaks in generalities and statements of principle. For that reason, nearly all constitutional doctrine is  judge-made. It is the Supreme Court Justices who determine what the constitutional provisions, and the amendments (including free speech, due process, search and seizures, etc.) really mean. The Court does this by devising multi-part legal standards, often incorporating a balancing test that weighs competing interests. For example, in the free speech context, that usually involves balancing the right to expression with the government's need to maintain an orderly society. These legal frameworks are then applied by the lower courts, and lawyers must study them in preparing their cases or giving legal advice. Constitutional law is really political science, and the Justices are the most powerful political scientists in the country, determining how our society should be organized in light of the principles in the Constitution.

Chief Justice Roberts writes the majority opinion. He draws from the overriding principle that the Constitution gives the President enormous authority and discretion as the head of the Executive Branch and the sole official elected by the nation as a whole (along with the Vice President). As such, Roberts writes, "There accordingly exists the greatest public interest in providing the President with the maximum ability to deal fearlessly and impartially with the duties of the office," without having his energies "diverted by proceedings that might render him unduly cautious in the discharge of his official duties." That language derives from a Supreme Court case from 1982, Nixon v. Fitzgerald, which held (under another judge-made principle) that a former President cannot face civil liability for actions undertaken in office. That case did not involve criminal liability, but it's the closest case we have to the Trump indictments, though Roberts notes that a former President would be exposed to far fewer (if any) criminal prosecutions than civil lawsuits by federal employees or other victims of his policies. These principles lead to this overriding guideline, premised on the concern that fear of future criminal liability (once he leaves office) may interfere with the President's duty make decisions as he sees fit:

Although the President might be exposed to fewer criminal prosecutions than the range of civil damages suits that might be brought by various plaintiffs, the threat of trial, judgment, and imprisonment is a far greater deterrent. Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.
The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under “a pall of potential prosecution,” raises “unique risks to the effective functioning of government.” A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, “the independence of the Executive Branch” may be significantly undermined. The Framers’ design of the Presidency did not envision such counterproductive burdens on the “vigor[]” and “energy” of the Executive.

The majority in this case breaks down Presidential actions into three parts, each with different consequences under the criminal law:

1. Presidential decisions drawing from his core executive duties, as expressly set forth in the Constitution, can never give rise to a criminal prosecution. This would include decisions relating to pardons, the removal of subordinate executive officers, and other decisions that fall within his exclusive constitutional authority.

2. As for other Presidential decisions drawing from his official duties, the President has presumptive immunity from criminal prosecution. The "official duties" element of this test is quite broad. Roberts says they include any Presidential acts "within the outer perimeter of his official responsibility." The "outer perimeter" qualifier is key. That would include just about anything the President does in office, including addressing the public. The Court writes that "the immunity we have recognized extends to the outer perimeter of the President's official responsibilities, covering actions so long as they are not manifestly or palpably beyond his authority." The prosecutor can overcome that presumption in certain circumstances, but those circumstances appear to be limited. This is the most controversial part of the majority's ruling. Roberts writes:

Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. . . . At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.
Read the italicized language carefully. The President's actions under his official authority (which covers a wide range of decisionmaking) is presumably untouchable under the criminal laws unless the prosecutor can convince the trial court that the prosecution would not intrude on that presidential authority. That legal principle is vague, and the judges and lawyers who have to apply this new constitutional rule are going to have to do the best they can. I am not sure what this language really means.

3. The President's unofficial actions are not immune from criminal liability. 

We have limited discussion on (1) and (3). This is really an "official act" case. Since this case reaches the Supreme Court prior to trial and without a fully-developed factual record, the Court provides guidance for the trial court judge who will have to review and apply this ruling. This portion of the ruling has some critical points that further develop the new constitutional rules devised by the 6-3 majority.

First, Presidential motives are not relevant in determining whether his acts violate the criminal law. We look to his actions, not his intent. This concept is normally foreign to the criminal law, which usually examines the criminal defendant's motives for committing a bad act. But in the Presidential context, the Court writes, the concern is that the President might worry that "his motives that control his official conduct may, at any time, become the subject of inquiry." The guiding principle for this is, again, the need for the President to make decisions in the national interest without being unduly second-guessed years later, as such second-guessing may put a chilling effect on bold Presidential decisionmaking. Note that the Court's concern about unhampered Presidential decisionmaking assumes that other Presidents in the future might take their duties more seriously than Trump and read their briefing books and have rational discussions with their advisors. Supreme Court Justices will tell you that their rulings are for the ages and cannot always take into account the peculiarities of the parties before them.

Second, official acts are immune from criminal prosecution and cannot be used in any trial against a former President, including as background evidence or evidence that would place his unlawful acts in context. This rule is also unique to this case. In many trials, the judge may allow the jury to hear otherwise inadmissible evidence but with an instruction that that evidence may be considered for a limited purpose. This comes up a lot with hearsay testimony; it may be relevant on a limited point at trial, and we presume that juries take that limiting instruction seriously. But Roberts' concern is that using official acts for any purpose would "invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge," and "raise a unique risk that the jurors' deliberations will be prejudiced by their views of the Presidential policies and performance while in office." By this point in the ruling, Roberts is drawing very little from prior Supreme Court cases and is devising general principles that support the majority's views of how a President must make decisions without the chilling effect of a possible criminal prosecution after he leaves office.

Third, looking to the allegations against Trump, the majority says that:

1. Trump's leveraging and even threatening his Justice Department to convince certain states to offer up a fraudulent set of electors draws from the core constitutional function outlined above in (1) because he is allowed to consult with the Justice Department in order to ensure the laws are faithfully executed, no matter how we define that phrase. Relatedly, Trump's threat to fire the Acting Attorney General as part of his scheme to overturn the election results is absolutely immune from criminal prosecution, as the President has authority to remove his appointees, even if he does so to promote a sham or improper purpose.

2. What about Trump's arm-twisting the Vice President to reject the certification on January 6, 2021 before Congress? This was an official act, and therefore presumptively immune, but the President actually has no role in the certification, so the prosecutor may be able to proceed on this charge, as it may not intrude upon Presidential authority. On the other hand, the President is expected to talk and consult with his VP, so this sequence may be absolutely immune, as well. The prosecutors in this case will have to overcome the presumption of immunity on this issue, and the trial court will make the final decision, subject to review by the Court of Appeals and then perhaps the Supreme Court.

3. As for Trump's arm-twisting state and local officials to reject the legitimate Electoral College certification in favor of sham electors, while Trump's lawyers argued that this was undertaken to ensure the integrity of the electoral process (a Presidential function), the prosecutors respond that there is no plausible source of constitutional authority for the President to authorize an alternate slate of electors in a way that would interfere with the votes of legitimate electors. The lower courts will have to sort this out.

You get the picture. Every constitutional doctrine has room for each side to make their arguments. That is the nature of constitutional balancing tests. Nothing is really predictable under the Constitution, especially when the issue reaches the Supreme Court, which may either be writing on a blank slate or ruling on a matter upon which the lower courts have disagreed. Most Supreme Court rulings therefore can go either way depending on the ideological makeup of the Court. 

In dissent, Justice Sotomayor is on fire, stating the majority is placing the President above the law and that our democracy may be imperiled by this ruling. She notes that the Nixon v. Fitzgerald precedent that the majority relies on for much of its reasoning bears little relationship to this case, as the Nixon case involved civil liability (and the possibility of hundreds of civil lawsuits after the President leaves office) and criminal cases against former Presidents will always be limited in number, and in fact have never happened in 250 years of American history. She notes that the Justices in the Nixon case, including conservative Justices appointed by Nixon himself, said the reasoning in that case would not apply in the criminal context. 

Sotomayor sums up this way: 

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

The majority and dissenting opinions offer starkly different views of constitutional law, each drawing from different constitutional and practical principles about how these cases might and should shake out in the unlikely event a former President is charged with criminal conduct. Bear in mind the six Justices in the majority were all appointed by Republicans, who generally endorse a "strong executive" model under the Constitution. Three of the majority Justices were themselves appointed to the Court by Trump. The three dissenters (all women) were appointed by Democratic Presidents. There is no "official" way to interpret the Constitution, which itself offers no guidance on how the courts should apply it. Constitutional law is man-made and woman-made, and it will always boil down to which side has more votes on a given issue. Broad presidential immunity from criminal liability gets six votes in this case, and the contrary view -- that no one is above the law, and we can trust the court system to treat every defendant fairly, no matter who they are -- gets three votes.

Wednesday, July 3, 2024

Naked police misconduct victims lose at trial, and on appeal

This police misconduct case went to trial: plaintiffs argued the defendant officers executed a search warrant and found the plaintiffs in the apartment but not the target of the warrant  Plaintiffs were sleeping when the officers entered the place, and both plaintiffs were naked. They claim the Fourth Amendment was violated because the officers unnecessarily saw them naked while executing the warrant. The plaintiffs lost at trial and they appeal to the Second Circuit, which agrees the case must be dismissed.

The case is Miller v. City of New York, a summary order issued on July 2. Plaintiffs smartly seek a new trial on the basis that the trial court issued bad jury instructions. This is always the best way to appeal from an adverse verdict since the trial court has no discretion or authority to charge the jury incorrectly. The problem is that plaintiffs' lawyers did not object to those charges, which imposes a difficult standard of review on appeal: plain error. You have to show the error was plain and affected substantial rights that seriously affected the fairness or integrity of the trial. That's a tough burden, and plaintiffs in this case cannot satisfy it.

One reason plaintiffs lose the appeal is because they argue now that the jury charge should have said the jury must find for Miller if it found that she was partially or fully naked when Defendant Penner searched her because there was no particularized suspicion that contraband would be found on them during the search. The Court of Appeals holds there is no established rule of law that categorically forbids limited searches without reasonable suspicion of individuals who are naked when the officers enter a dwelling. "We have never held that officers need reasonable suspicion in order to search or pat down a suspect who (like Miller here) was already nude when the officers arrived." Plaintiffs' challenges to the other jury instructions also fail because they did not challenge them at trial and they cannot show plain error. 

Finally, plaintiffs advance a more challenging argument than the jury charge appeal. They claim the jury had no choice but to find in their favor and they are entitled to judgment as a matter of law. 

Miller contends that the uncontroverted trial testimony established that Penner caused Miller to remove a blanket and expose herself to a male officer for several seconds while Penner helped Miller put on leggings.  According to Miller, this momentary exposure entitled her to judgment as a matter of law against Penner, because such conduct constituted a per se violation of the Fourth Amendment.
This argument may sound reasonable, but the Supreme Court has rejected it on worse facts than this. In Los Angeles County v. Rettele, the Court held in 2007 that the Fourth Amendment was not violated when officers executing a warrant ordered a naked man and woman out of bed in order to secure the room and preserve evidence. In that case, the undressed plaintiffs were exposed for two minutes. The Court of Appeals says if the plaintiffs could not win in Rettele, the plaintiffs in this appeal cannot win either.

Tuesday, July 2, 2024

Contradictory summary judgment affidavit dooms disability discrimination claim

In this disability discrimination case, the plaintiff sued the County of Westchester after he was terminated from his position as Director of Fiscal Affairs for the Board of Legislators. The district court granted summary judgment, finding the jury cannot find in plaintiff's favor because there is no evidence that the decisionmaker held an discriminatory intent. The Court of Appeals affirms, and the case is over.

The case is Daly v. Westchester County Board of Legislators, a summary order issued on July 2. Plaintiff's disability was his back injury. The supervisor who fired plaintiff was Benjamin Boykin, Chairman of the Legislature. While plaintiff never spoke with Boykin about his disability, the Court looks for circumstantial evidence that Boykin knew about it. 

The best evidence to show that Boykin knew about plaintiff's disability was plaintiff's summary judgment affidavit, in which he claimed to overhear Boykin tell another employee, "Dante is disabled." Dante is the plaintiff. Plaintiff also stated in his affidavit that Boykin and another supervisor, Power, pressured plaintiff to say he was unable to perform his job duties because of his disability. That sounds like great evidence that would support any claim for disability discrimination. But we have a problem.

As the Second Circuit sees it, the problem is that, when defendant's attorney took plaintiff's deposition, he was "asked if any reference was ever made by Boykin and Power about his disability, and he responded, 'No, not at all.'" What do we do about this contradiction? The Second Circuit has held that you cannot create an issue of fact on a motion for summary judgment with an affidavit that contradicts the sworn deposition testimony. The reason for this is the Court does not want people to "clean up" their cases when the motion is on the table when they had a chance to give clear testimony at deposition on a critical issue in the case. When that happens, such an affidavit looks suspicious.

You could argue that the contradiction was an illusion and plaintiff's testimony can be reconciled. More broadly, you could argue the contradictory affidavit creates a true issue of fact for trial and that it simply creates a credibility issue for the jury to sort out. I have no doubt that some juries may overlook the deposition testimony and instead credit the version of events set forth in the affidavit. My guess is, in addition to the Court's concern that parties will "create" an issue for trial at the last minute, the Court probably thinks the plaintiff will be beaten up on cross examination at trial to such an extent that the jury will disregard anything the plaintiff says in the case on any issue. Imagine a skilled civil defense lawyer impeaching the plaintiff at trial with contradictory sworn accounts.

Monday, July 1, 2024

Laws that target the homeless do not violate the Eighth Amendment

This case asks whether it violates the Eighth Amendment's prohibition against cruel and unusual punishments to make it unlawful to sleep or camp out on public property. The real issue is whether the Eighth Amendment makes it illegal to punish homeless people for public encampments.

The case is City of Grants Pass v. Johnson, issued by the Supreme Court on June 28. The Court rules, 6-3, that the law against public encampments does not violate the Eighth Amendment. Justice Gorsuch starts off the opinion with a lengthy discussion of homelessness problem in the United States, occasionally referring to them as "unsheltered." We then get to the legal issues, where Gorsuch clarifies what the Cruel and Unusual Punishment clause of the Eighth Amendment really means: it "was adopted to ensure that the new Nation would never resort to any of [the draconian] punishments or others like them." The clause "focuses on the question what 'method of punishment' a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense."

Is this a new framework for Eighth Amendment cases? I am sure a legal scholar will figure that out. Framing the issue that way provides the result: the Eighth Amendment is not offended when the government passes laws that allow the police to arrest homeless people for camping out in public. The question is not whether the government should outlaw this behavior but whether the punishments are cruel. They are not, the majority says, because in this case the initial offense is a fine and then punishment escalates after that, up to 30 days in jail. These are not atypical punishments for this behavior, the majority finds. Laws like this are constitutional.

Justice Sotomayor writes the dissent on behalf of Justices Kagan and Jackson. (These 6-3 rulings are going to be the norm for the next few years, until someone leaves the court and is replaced by an ideological opposite). Sotomayor writes that for some people, sleeping outside is their only option, and that laws in this case essentially punish people for being homeless. "This is unconscionable and unconstitutional. Punishing people for their status is 'cruel and unusual' under the Eighth Amendment," she writes.

The only precedent that potentially speaks to this issue is Robinson v. California, a 1962 Supreme Court case that held it violated the Eighth Amendment when the government criminalized drug addiction, essentially punishing people over their status. The 2024 Court is not the 1962 Warren Court, the most liberal in American history. I would note that all of the Justices who served on the Court in 1962 are dead, and all of their replacements are dead as well. This is a very different Supreme Court than the Warrren Court. The dissenters note that "This Court has repeatedly cited Robinson for the proposition that the 'Eighth Amendment ... imposes a substantive limit on what can be made criminal and punished as such."

The majority deals with Robinson by arguing that public camping ordinances are nothing like laws that criminalize drug addiction. The majority does not overrule Robinson, but it might do so someday. Gorsuch notes that the parties in Robinson barely framed that issue as an Eighth Amendment one and that the Court in 1962 turned it into an Eighth Amendment issue on its own. We know this because the the majority reviewed the parties' briefs in Robinson, which are on file somewhere at the Supreme Court. Justice Thomas would overrule Robinson right now. What it all means is the Robinson precedent has been whittled down to its facts. 

Sunday, June 30, 2024

Supreme Court rejects Chevron-deference, altering administrative law forever

The Supreme Court has overruled one of its most important cases in the last 50 years, holding that courts cannot defer to the judgment of administrative agencies on the meaning of federal statutes. The Chevron precedent, the centerpiece of the modern administrative state, and the lodestar every time a federal agency issues regulations under the Administrative Procedure Act, is gone.

The case is Loper Bright Enterprises v. Raymond, issued on June 28. The case centers on federal regulations involving fishery in the ocean. The industry challenged particular regulations. But the precise issues raised by the parties are not the main event. The story is the future of administrative law in the United States.

The Supreme Court devised Chevron-deference in 1984. That was not a particularly liberal court, but it adopted Chevron-deference by a 6-0 vote (three Justices did not participate in the case), and of those six Justices, five of them were appointed by Republican presidents. 

One of the most valuable things I learned in law school was administrative law. Not because I practice administrative law, but because administrative law is important and complex, and the only way to really understand how it works is through formal instruction. Many non-lawyers are familiar with the concept of Chevron-deference, but this may be the most important below-the-radar issue in American law.

Administrative law is where public policy is formulated, as specialists, experts, scientists, and economists draft regulations to assist in the enforcement of federal statutes that are not always clear about how they apply in specific situations. Environmental policy, along with health and safety, consumer protection, education, etc., is largely formulated by the administrative agencies, part of the Executive Branch and derisively referred to as the "bureaucracy" when it issues rules that people don't like or want to enforce. The idea behind Chevron deference is that, if the regulations are consistent with the statutes they were intended to enforce, then the courts must respect those regulations if someone sues to block their enforcement. If the regulations go too far afield from the legislative intent, then the courts need not enforce them.

Writing for the usual 6-3 majority, Chief Justice Roberts draws from a fundamental constitutional principles: only the courts may interpret the laws, not the Executive Branch. The reasoning in Chevron delegates that authority to the administrative agencies, Roberts holds, and for that reason, Chevron was wrongly decided is no longer binding on any court. The Chief says, in part:

delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise. The better presumption is there- fore that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch. And to the extent that Congress and the Executive Branch may disagree with how the courts have performed that job in a particular case, they are of course always free to act by revising the statute.

Justice Kagan writes the dissent for Justices Sotomayor and Jackson, stating that Chevron simply reflects the reality of how government works in the modern era, "as Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes," and that Congress "knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill." Congress, Justice Kagan writes, "would usually prefer that actor to be the responsible agency, not a court." She adds:

Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not. And some present policy choices, including trade-offs between competing goods. Agencies report to a President, who in turn answers to the public for his policy calls; courts have no such accountability and no proper basis for making policy. And of course Congress has conferred on that expert, experienced, and politically accountable agency the authority to administer—to make rules about and other- wise implement—the statute giving rise to the ambiguity or gap. Put all that together and deference to the agency is the almost obvious choice, based on an implicit congressional delegation of interpretive authority. We defer, the Court has explained, “because of a presumption that Congress” would have “desired the agency (rather than the courts)” to exercise “whatever degree of discretion” the statute allows. 

If Roe v. Wade (now overturned) was the crown jewel of abortion law, then Chevron was the Mount Everest of administrative law. Chevron-related issues do not get the public attention that abortion does, but for government employees, non-profits, and the business community, administrative law is the most important thing in the world. In this case, the structure of administrative law has changed forever, and my prediction is that overturning Chevron will result in fewer environmental, health and safety, consumer protection, and related rules and regulations, and many of them are now vulnerable and will be the subject of a slew of legal challenges over the next few years. 

Thursday, June 27, 2024

No speech violation where Town Board cuts public comments out of livestreaming

This First Amendment case from Rockland County examines what happens when the Town Board does not make the public comment portion of its meetings available to the public on its live broadcasts. Is this a free speech violation?

The case is Potanovic v. Town of Stony Point, a summary order issued on June 25. When I covered municipal board meetings as a young journalist in the late 1980s, public comment sessions were not contentious. They have become more contentious in our polarized society. With the Internet, you can watch these meetings at home. All of this gives rise to this lawsuit. Plaintiff argues that, by closing out the public from his comments at the start of the meeting, his First Amendment rights are being squashed because this practice reduces the size of his audience: the people watching from home. 

The Court of Appeals (Livingston, Robinson and Kahn) holds this is not a speech violation. The Court sees things this way:

Potanovic’s First Amendment claim is best understood as seeking to compel the Town to create a limited public forum of the scope and character that Potanovic seeks—namely, broadcast online, recorded, and archived. If, hypothetically, the Town provided an opportunity for members of the public to address the Town Board in person on a separate day, untethered to the Town Board’s livestreamed legislative meeting, Potanovic would not have a First Amendment right to compel the Town to expand the limited public forum it thereby created beyond its deļ¬ned scope by livestreaming the meetings just because the Town had the technology to do so. The fact that the Town’s public comment period is temporally adjacent to the Town Board’s (nonpublic) legislative meeting does not change this analysis.
The Second Circuit holds the Town Board's practices are not illegal because the public can still attend the meetings in person, and people can still address in-person audiences at the meetings. Plaintiff continued to speak at these meetings even after the Town Board shut off the live-streaming during the public comment sessions.

Tuesday, June 25, 2024

Supreme Court expands the claim for malicious prosecution

In a victory for plaintiffs, the Supreme Court has held that they can sue the police for malicious prosecution even if some the charges filed against an arrestee are supported by probable cause. 

The case is Chiaverini v. City of Napoleon, issued on June 20. Malicious prosecution claims may proceed against the police if they charge you with a crime without probable cause, and the plaintiff can also show the charges were motivated by malice. In the Second Circuit, malice may be proven by the lack of any probable cause. And you have to show the charges did not yield a criminal conviction. The question is whether you can bring a malicious prosecution claim if the police charge you with three offenses, two of which are supported by probable cause.

The reason this question arises is because the related claim of false arrest is defeated if the police had any objective basis to arrest you. So that if you are charged with trespass, and there is no probable cause for that charge, but the police could have charged you with resisting arrest, because they would have had probable cause to arrest you for that, then there is no false arrest claim. Some courts have held that malicious prosecution claims, like false arrest claims, will fail if any of the charges are supported by probable cause. The Sixth Circuit was one of those courts, and this case, arising from that Circuit, reaches the Supreme Court after the plaintiff, who owned a jewelry store, was arrested and charged with receiving stolen property and related charges, including money laundering. Plaintiff said the money laundering claim in particular lacked any probable cause. It's the money laundering claim that predicates the malicious prosecution case under Section 1983.

The Supreme Court rejects the false arrest theory of malicious prosecution. It thus holds that if a particular charge lacked any probable cause, then the plaintiff is eligible to sue for malicious prosecution even if the other charges might have been supported by probable cause. The Court reaches this holding upon reviewing Fourth Amendment caselaw and common-law principles. 

Justices Thomas and Alito dissent, taking a more far-reaching view: that the Fourth Amendment cannot support any claims for malicious prosecution, and that the only place for these claims is in state court. Justice Gorsuch also refers to this as "a new tort of [the Court's] own recent invention -- what it calls a 'Fourth Amendment malicious-prosecution cause of action.'"

Monday, June 24, 2024

Supreme Court holds the states may disarm domestic abusers

The Supreme Court has held that the states may disarm people who are subject to a domestic violence restraining order. While the offender asserted the Second Amendment makes the law in question unconstitutional, the Court overwhelmingly disagreed.

The case is United States v. Rahimi, issued on June 21. This is an 8-1 ruling. Justice Thomas dissents.

Prior to the Supreme Court's ruling in District of Columbia v. Heller (2008), this would not have been an issue, as the Court had never previously held that the Second Amendment protects an individual right to own a gun. Since that time, the Court has made it harder to regulate guns, as the Court in 2022 held in New York State Rifle & Pistol Assn. v. Bruen that only gun regulations that resemble the ones in place at the time of the nation's founding in the 18th Century satisfy the Constitution. We call that "originalist" thinking. That legal standard came out of nowhere. So, while Justice Barrett in this case says that the Second Amendment is not absolute, the legal standard created by the Court in 2022 makes is as close to absolute as any of the Bill of Rights. The Supreme Court decides how to interpret the Constitution and it has authority to create legal standards to assist in that interpretation. As the Court writes in this case, 

appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to to modern circumstances.”
Even under this pro-gun legal standard, the defendant in this case loses. "From the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others." What follows is a lengthy dissertation on British case law dating to the 17th Century. These old legal precedents also allowed judges to "prevent all forms of violence, including spousal abuse." Back then, the laws also "targeted the misuse of firearms." While the law at issue in this case "is by no means identical to these founding era regimes, . . . it does not need to be. Its prohibition on the possession of firearms by those found  by a court to present a threat to others fits neatly within the tradition" the older laws represent.

Justice Jackson's concurring opinion notes that the majority opinion impliedly concedes the legal standard first articulated in Bruen is difficult to apply, which explains why the Chief Justice in this ruling tries to clarify what Bruen really means. Jackson notes that lower courts are struggling to understand Bruen and that "there is little method to Bruen's madness."

Friday, June 21, 2024

2d Circuit affirms dismissal of Sarbanes-Oxley retaliation claim

It's been a while since we've seen a Sarbanes-Oxley case in the Second Circuit. This case was dismissed because the plaintiff was unable to show his whistleblowing was protected under this statute, intended to protect against Wall Street financial abuses.

The case is Katzel v. American International Group, a summary order issued on June 21. 

As head of the Legal Operations Center at AIG, plaintiff suggested the LOC spin-off into its own consulting firm, which would continue working with AIG while contracting with other companies to help them reduce their external legal costs. Plaintiff would be president and CEO of this independent LOC. AIG decided against implementing this proposal. 

In December 2016, plaintiff told the compliance department that AIG's evaluation of his proposed LOC spin-off plan were inadequate, and there might be a potential conflict of interest by a consulting firm involved in evaluating the spin-off plan. While plaintiff told the compliance department that he did not have knowledge of any alleged or suspected fraud, "he still thought it would be worthwhile to 'evaluate the advisability of review and testing on the robustness of conflict of interest protections in the processes followed by certain functions responsible for significant transactions at the company' to ensure the company made decisions that 'maximize shareholder value.'” The compliance department determined that while these were valid concerns about AIG's practices of sharing confidential documents with consulting firms, there was not actual conflict.

Plaintiff was fired a few months later after the compliance department wound up its investigation. The stated reason was that he was unwilling and unable to make changes that Solmssen viewed as necessary at the LOC, including cutting its costs and reducing its headcount.

Plaintiff loses in the district court and on appeal, the Second Circuit holds, because he did not engage in protected activity under Sarbanes-Oxley. Plaintiff had to show he reasonably believed he was reporting a violation of Securities and Exchange Commission rules. "While Katzel proffered facts that suggest he legitimately believed AIG was making a poor business decision in declining to proceed with his proposed LOC spin-off, these facts do not suggest he believed this bad business decision reached the level of illegal conduct." The Court reasons as follows:

The notes from Katzel’s initial conversation with the Compliance Department, as well as two separate certifications he signed in 2016, suggest  that he did not believe the conduct he was reporting violated federal law. During Katzel’s initial conversation with the Compliance Department, he stated that he had “[c]oncerns/questions about whether the process was fair & robust,” that he thought the team reviewing the spin-off proposal did not “let[] facts speak for themselves,” and that he thought a “vigorous process need[ed] to be in place” for potential transactions like the spin-off to ensure AIG got the “right price” and the “right buyers.” Absent from the conversation notes, however, is any suggestion that Katzel thought this failure to conduct a “vigorous process” was fraudulent in any way.
Sarbanes-Oxley (known as SOX) is an important law, but you can see the difficulties in bringing such a case. Unfortunately for plaintiff, his case fails at the outset, as the Court of Appeals (Parker, Perez and Jacobs) finds he cannot make out a prima facie case of whistleblowing retaliation.




Thursday, June 20, 2024

It is tough to overturn a jury verdict on appeal

This case went to trial in the Northern District of New York. Plaintiff is an inmate who claims correction officers attacked him, causing him serious injuries. The jury ruled for the officers, and plaintiff appeals. The Court of Appeals affirms the verdict, reminding us once again that it is quite hard to upset a jury verdict on appeal. 

The case is Barnes v. Rock, a summary order issued on June 13. Many trial court rulings are discretionary with the judge. That makes it hard to challenge their rulings on appeal, even if the trial court got it wrong. In order to get a new trial on the basis of the district court's rulings, you have to show an abuse of discretion and that the judge's errors affected the verdict. Again, hard to do.

Plaintiff says the trial court got it wrong in not giving the jury an adverse inference charge on missing video footage that plaintiff claims would have supported his case. But the trial court did allow plaintiff's lawyer to make that argument to the jury during closing arguments. Attorney argument is not as compelling as a trial court adverse inference jury instruction, but that determination is up to the judge. 

Plaintiff also argues that the trial court should not have taken the retaliation claim away from the jury. The judge said there was not enough evidence for plaintiff to win the case. This can be a winning argument: normally, juries decide what happened, and trial courts risk a re-trial if they prematurely dismiss a claim during trial. Plaintiff loses this argument, however, because the jury verdict that the officers did not subject plaintiff to excessive force precludes any retaliation argument, which evidently turned on whether the officers used excessive force.

An interesting argument here is that plaintiff did not get a fair trial because the trial court ordered him to wear shackles in the courtroom. Imagine what the jury is thinking when the plaintiff-inmate is wearing shackles during trial. But there is an "abuse of discretion" standard of review on arguments like this. We leave it to the trial judge to decide these matters.

Tuesday, June 18, 2024

Some guidance on management's duty to protect workers from third-party sexual harassment

In this unusual sexual harassment case, the plaintiff -- a Town Planner and Director of Development Services for the Town of Berlin, Connecticut -- complained that a Town resident (a local developer) was sending the Town a series of letters claiming that plaintiff had a substance abuse problem and she was involved in a sex scandal with a subordinate. Plaintiff ended up resigning over this. The district court said the Town's response to these offensive letters satisfied its obligations under Title VII. The Court of Appeals agrees with plaintiff that a jury may rule in her favor.

The case is Riggins v. Town of Berlin, a summary order issued on June 13. The letter-sender, Coccomo, did not work for the Town. But the Town still had an obligation to protect plaintiff. The Court of Appeals notes that Coccomo's letters "were replete with aggressive, lewd, demeaning, and sexually discriminatory language." In a footnote, the Court states it will not repeat that language verbatim "to avoid further victimizing Riggins through continued dissemination of [Coccomo's] vile attacks." The Town consulted with the police about these letters, determining the letters did not violate any criminal laws, but ultimately the Town decided it could not take any further action against Coccomo. Plaintiff ultimately resigned her position.

The Second Circuit (Leval, Merriam and Khan) notes the standard guiding an employer's duty to protect its staff from outside harassers.Citing Summa v. Hofstra Univ., 708 F.3d 115 (2d Cir. 2013), for this proposition, the Court says, "we look to whether the Town’s 'response was immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility' the Town had over Coccomo’s behavior."

Plaintiff can win the case because (1) while the Town brought Riggins' complaints to the police, those efforts focused on whether Coccomo could be criminally prosecuted, and not how to prevent further sexual harassment; (2) the Town otherwise took no steps that might dissuade Coccomo from further sexually harassing communications, (3) the Town did not undertake a Title VII investigation until after Riggins resigned; (4) no Town official told Coccomo that his communications constituted inappropriate sexual harassment and that he must stop; (5) the Town did not consult with an employment attorney on this matter until Riggins submitted her resignation letter, which meant she had to deal with this harassment for more than four years. 

While the Town argued that it had limited control over Coccomo, the Court of Appeals says the jury may find otherwise. "The Town did have exclusive control over its workplace and over the email system to which Coccomo sent many of the harassing communications. And the Town presumably could dictate the way in which Coccomo was permitted to communicate with Town employees." The Court of Appeals cites Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001), which states, "The focus is not on the conduct itself but on the employer’s behavior in response; a hospital cannot control every act of its patients, but it does control the environment at large.” Therefore, the Court says, "the Town’s degree of control over Coccomo’s actions is not dispositive of whether the Town’s remedial actions were sufficient and appropriate." And, other than calling the police, it appears the Town did nothing to dissuade Coccomo to stop his abusive behavior.



Monday, June 17, 2024

What does "excusable neglect" mean under the Federal Rules?

I know that you know this, but it always bears repeating: deadlines are important. Miss and deadline and the case could go way for good. That is what happened here.

The case is Doe v. Board of Education of N. Colonie Central Sch. Dist., a summary order issued on June 17. This is a First and Fourteenth Amendment case with a few state law claims. After the district court dismissed plaintiffs' lawsuit without prejudice, citing their failure to meet pleading requirements, plaintiffs were given a deadline amend the complaint and make it right. This is common in federal practice: trial judges usually give the plaintiff at least one chance to amend a deficient complaint on the theory that cases should be resolved on the merits and not based on attorney error or procedural irregularities.

The dismissal order said plaintiffs had until April 27, 2023 to amend the complaint. But that date came and went without an amended complaint, and the district court dismissed the case altogether. A few weeks later, plaintiff filed a motion under Rule 60 to vacate the judgment of dismissal based on excusable neglect. The district court denied that motion, which brings the case to the Court of Appeals.

The Second Circuit (Lohier, Sack and Kahn) finds that the district court did not abuse its discretion in denying the Rule 60 motion. That means the case is over. To get around a dismissal like this, the plaintiff has to prove "excusable neglect." The main factor in determining "excusable neglect" is "the reason for the delay, including whether it was within the reasonable control of the movant." 

The concept of "excusable neglect" sounds forgiving, but that is not always the case. Plaintiffs' lawyer said there was excusable neglect because "the docket notifications containing the April 6 order were emailed to their counsel’s spam folder, rather than his inbox." The district court said this excuse was "highly questionable” as "the Plaintiffs have never plausibly explained why only the April 6 notifications were sent to counsel’s spam folder, while all other notifications were sent to his inbox." 

It is pretty scary to think that a court-related directive might find its way into your spam box. I just checked my own spam box to see if there is anything important there. In any event, that was not the only reason the Rule 60 motion was denied. The Court of Appeals says that counsel also admitted that "a part-time employee at counsel’s firm did receive the April 6 notifications in the employee’s inbox. In addition, the District Court noted that counsel had failed to comply with prior deadlines because he had been unaware of docket notifications.  Counsel also implied that he had not otherwise been monitoring the docket for over two months because he was under the impression [he was] waiting for a Decision from the Court.”  

What we learn from this is that counsel's failure to pay attention to the docket is not excusable neglect. That phrase refers to circumstances beyond plaintiff's control.

Thursday, June 13, 2024

Blanket policies at hospital for new mothers may violate Americans with Disabilities Act

This is a unique case. Plaintiff alleges she went to the hospital and they violated the Americans with Disabilities Act and Rehabilitation Act when they stereotyped her on the basis of her substance abuse disorder. The Court of Appeals has to determine whether this is a true disability discrimination case or a medical malpractice case which would have to be litigated in state court under a different set of legal standards. The Court clarifies the law in this area.

The case is Costin v. Glens Falls Hospital, issued on June 12. Plaintiff went to the hospital to have a baby. Plaintiff told the hospital that she was taking Subutex, as prescribed by her doctor, for substance abuse disorder, but that she was no longer abusing any illicit opioids. The nurse told plaintiff that the hospital drug tests all pregnant women who take medication like this and the hospital also had a policy of reporting all new mothers using Subutex to Child Protective Services for potential child abuse. The hospital also denied plaintiff an epidural, accelerated her labor, failed to discharge the baby right away, prevented skin-to-skin contact between mother and baby, and did not explain treatment alternatives.

How do we sort all of this out? Courts hold that many civil rights case are actually medical malpractice cases. The leading case on this issue is McGugan v. Aldana-Bernier, 752 F.3d 224 (2d Cir. 2014), which holds that medical treatment can violate the ADA when decisions are "pejorative," meaning decisions are made based on irrelevant criteria and/or irrational bias. 

Plaintiff's substance abuse disorder qualifies as a disability under the ADA and the Rehabilitation Act. Under McGugan, the blanket policies against new mothers, relating to reporting them to CPS and mandatory drug tests, may violate the ADA. The problem for the hospital is that these may be blanket policies that apply to all mothers in plaintiff's situation. That may give rise to an ADA violation.The other matters about which plaintiff complained, including the epidural denial, are really medical malpractice claims, the Court of Appeals (Jacobs, Lohier, and Livingston) holds. 

As a side note, the Court holds plaintiff has standing to bring this case. Plaintiff attested that she plans to return to the hospital in the future, and that is enough. The Court also notes in a footnote the "happy news" that plaintiff is pregnant again, which further proves she will return to the hospital in the future.

Wednesday, June 12, 2024

Court of Appeals allows jury to hear threats against postal employees

The Court of Appeals has issued an good old-fashioned evidentiary ruling that applies the settled rules guiding relevance and admissibility. It arises in a criminal case where the defendant was accused of making threats relating to his employment with the Post Office.

The case is United States v. Garnes, issued on May 28. After the defendant was fired, he spoke to the Department of Labor about his unemployment benefits. Those conversations led to an indictment alleging defendant had threatened to injure another person. During the call, the Government alleged, defendant threatened to assault and murder two Post Office employees after he was told he did not qualify for unemployment benefits. 

What did defendant say: the Government claims he said, "If I go back to the post office, I'm gonna shoot somebody," and other similar comments. Prior to trial, defendant's attorney successfully moved to exclude certain other statements that mentioned his prior time in prison and that it would not bother him to be in jail. Defendant argued these were not threatening statements but, instead, "poorly phrased attempts . . . to characterize the absurdity of his predicament; one where it is preferable, from an economic standpoint, to be incarcerated than to live as a free man." The trial court excluded these statements as more prejudicial than probative.

The Court of Appeals (Lynch, Nardini and Kahn) reverses the trial court and says the jury can hear the jail comments, which are relevant to the charge that he threatened to assault or murder postal employees. Here is the reasoning:

the five statements made by Garnes that repeatedly refer to, and indeed overstate, his criminal history, at a minimum have a “tendency” to make it more probable that the threatening language would convey to listeners that they had something to fear, and that Garnes made those statements with an awareness, and even with the intention, that he would create such fear. See Fed. R. Evid. 401. A jury could find that Garnes’s statements about his history of criminal acts, his past experiences in jail and prison, and his comfort with returning to jail would convey to a reasonable listener a sense that Garnes was willing and able to act on his violent words, and that he made those statements in a conscious attempt to make his threats to shoot and kill employees of  the DOL and USPS more credible.

While the defendant claims the statement create the potential for unfair prejudice, the Court of Appeals disagrees. The Court notes that the statements "may create some potential for unfair prejudice," but "the five statements are part of the 'res gestae,' the narrative the government rightly seeks to tell at the guilt phase of the trial." Defendant's exaggerated statements about his criminal record are a part of that: the jury may find the stretched the truth about his jail time in order to make his threats more credible.

Friday, June 7, 2024

Reverse gender discrimination case under Title VII is dismissed

This plaintiff alleges he was fired from his position on the basis of his gender. The case is dismissed because the record shows he was really fired for setting up a fake bank account in his brother's name. Plaintiff tries to argue he was singled out for disparate treatment, but the Court of Appeals finds his "comparators" are not really comparators.

The case is Carter v. TD Bank, NA, a summary order issued on June 4. It all started when plaintiff's brother visited a TD Bank branch in Florida and told the staff that several accounts had been opened in his name without his knowledge or authorization. An investigation followed. The bank determined that plaintiff had opened up the accounts as a scam. The investigator determined that plaintiff's defense was not plausible - plaintiff said his brother must have forgotten that he had opened the accounts only five days earlier. The investigator also thought that plaintiff had forged his brother's name on the new account documents. 

If setting up a false bank account is not grounds for termination, then I don't know what is. But plaintiff said the real reason was gender discrimination because two women were not fired despite engaging in fraudulent activity. One comparator was negligent in failing to detect fraudulent paperwork submitted by a customer. The other woman was found to have committed an act of dishonesty that, according to plaintiff, should have resulted in his termination. 

Are these legitimate comparators? The Court of Appeals' leading case on this issue is Graham v. Long Island Railroad, 230 F.3d 34 (2d Cir. 2000), which says the comparators must be "similarly situated," or subject to the same workplace standards as the plaintiff. The comparators must also have engaged in comparable conduct.

Not this case, the Court of Appeals (Jacobs, Sack and Sullivan) holds. The first comparator was only negligent in her misconduct. She did not engage in intentional fraud. The other comparator was not subject to the same workplaces standards as plaintiff. The Court finds that no reasonable jury could find these two women were comparable to plaintiff. Without additional evidence of gender discrimination, the case is dismissed. 

Wednesday, June 5, 2024

COVID vaccine-related disability discrimination claim fails

We have another COVID-19 vaccination case in the Second Circuit, this one alleging that a medical contractor fired the plaintiff in violation of the Americans with Disabilities Act after he refused to take the vaccine. Plaintiff argued that his employer regarded him as disabled and then retaliated against him after he objected to the vaccine mandate. Plaintiff loses the case.

The case is Sharikov v. Philips Medical Systems MR, Inc., issued on June 4. Plaintiff worked in defendant's Latham, N.Y., office. After defendant began implementing COVID-19 health measures, including masking, glove-wearing, screening, etc., it told its employees that it had to comply with a federal vaccine mandate for federal contractors like Philips Medical Systems. Employees were told they would have to resign if they did not comply with the mandate. Eventually, the federal mandate was put on hold due to court rulings, but defendant continued to adhere to local vaccine mandates. Plaintiff objected to the mandate and claimed he was being discriminated against. In December 2021, plaintiff field an EEOC charge and also sent a missive to defendant's global ethics complaint system, claiming that defendant was

regarding me as having a disability (an impaired immune system and an impaired respiratory system) without any diagnosis or individualized assessment and has also made a record of such disability by misclassifying me as having, in ADA terms, a mental or physical impairment that substantially limits one or more major life activities. My employer is also coercing me to submit to medical examinations and interventions as accommodations ("mitigation measures") without any informed consent.
Plaintiff was eventually fired and his departure was classified a voluntary resignation. 

The Court of Appeals (Livingston, Kearse and Chin) holds that plaintiff's discrimination claim fails for the following reason:

1. Plaintiff's "regarded as" disabled claim under the ADA is dismissed because defendant's vaccine mandate applied to all employees, not just plaintiff, and the company imposed the mandate pursuant to federal rules and also to protect employees and customers from infection. The Second Circuit holds that a plaintiff is not "regarded as" disabled when he is terminated for not complying with an office-wide vaccination mandate. Put another way, the company did not regard plaintiff as disabled because he was not singled out for the mandate on the basis of any perceived disability. "Sharikov does not explain how adopting measures to prevent the spread of a communicable disease implies an impairment, and he cites no case law equating prophylactic measures with assumptions of disability. Moreover, taken to its logical conclusion, Sharikov's position would subject many companywide safety policies to potential challenge under the ADA on the theory that such policies perceived all employees as disabled."

2. Nor is there a retaliation claim. Yes, plaintiff objected to the vaccine mandate and filed an EEOC charge, which is protected activity. But no, he cannot show, even under Rule 12 motion to dismiss standards, that he would not have been fired had he not lodged these objections. "The allegations of the Complaint instead make clear that Sharikov was discharged because he refused to comply with the company-wide policies first announced in October 2021, when all employees were told they had to be vaccinated or approved for an exemption by February 4, 2022 or be deemed to have resigned." The Complaint instead confirms that plaintiff was fired because he would not comply with a company-wide policy that applied to all employees.



Monday, June 3, 2024

NRA wins free speech case against State of New York

After the country endured another mass shooting -- this one in Parkland, Florida, which killed 17 students and staff members -- the Superintendent of the New York Department of Financial Services -- which regulates insurance companies and financial services companies -- sent a letter to organizations that administered insurance policies to National Rifle Association members. That letter and related comments form the basis for this First Amendment lawsuit that the NRA filed against the State of New York. The Supreme Court says the NRA has a case.

The case is NRA v. Vullo, issued on May 30. Vullo was the Superintendent. The letter mentioned the social backlash that the NRA was facing in the aftermath of the Parkland shootings and that businesses were severing their ties to the NRA as a result. In the "Guidance Letters," Vullo urged the DFS-regulated entities to evaluate and manage their risks, including reputational risks, from their relationship with the NRA, and to review any relationships they have with the NRA or similar gun-rights organizations. Three such entities, including Lloyd's, shortly thereafter entered into consent decrees with the State over allegations that they had violated regulations in providing insurance coverage for intentional acts, among other things. Vullo and Governor Cuomo then issued a press release urging insurance companies and banks in New York to discontinue their relationships with the NRA. 

The Supreme Court rarely takes up a case like this, alleging that governmental directives or guidance letters might violate the free speech rights of a private organization. In 1963, the Court held in Bantam Books v. Sullivan, that the government cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. The NRA case provides another opportunity to develop this area of the law. 

The general rule is that, to state a claim, the private organization must assert that, in context, the message would be reasonably understood to convey a threat of adverse government action in order to punish or suppress free speech. That the NRA was not the recipient of Vullo's guidance letters is of no moment in this analysis. The Court holds that the NRA states a free speech claim because (1) Vullo has regulatory authority over the insurances companies that did business with the NRA, and (2) Vullo had investigated Lloyd's over insurance-related violations and (3) told insurance executives that DFS had been investigating insurance companies and "was less interested in pursuing those infractions unrelated to any NRA business so long as Lloyd's ceased providing insurance to gun groups, especially the NRA." Vullo also told these entities that she would focus her enforcement actions solely on the organizations with ties to the NRA and ignore other syndicates writing similar policies. This was a thinly-veiled threat, the Supreme Court unanimously holds, and the NRA was the target. 

Writing for the Court, Justice Sotomayor reverses the Second Circuit (where she sat prior to her nomination to the Supreme Court). Here is the heart of the analysis:

As alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive. As Vullo concedes, the “threat need not be explicit,” and as the Solicitor General explains, “[t]he Constitution does not distinguish between ‘comply or I’ll prosecute’ and ‘comply and I’ll look the other way,’” So, whether analyzed as a threat or as an inducement, the conclusion is the same: Vullo allegedly coerced Lloyd’s by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business alone, if Lloyd’s ceased underwriting NRA policies and disassociated from gun-promotion groups.


Thursday, May 30, 2024

Inmate's religious freedom case fails over technical roadblocks

In this prisoner rights case, the plaintiff argues to the Second Circuit that a mandatory program that required him to accept responsibility for his sex crimes violates his statutory and constitutional religious rights because the program required him to tell a falsehood in violation of his religion, the falsehood being that he is guilty of the crimes. Plaintiff loses the case.

The case is Tripathy v. McCoy, issued on May 29. Since plaintiff says he never committed any sex crimes, the program, he says, would require him to lie. His religion prohibits such lying. 

The problem for plaintiff is that the Religious Land Use and Institutionalized Persons Act (RLUIPA), under which plaintiff brings this lawsuit, does not provide for compensatory damages, as it is a Spending Clause legislation and, for reasons too complicated to lay out here, such statutes do not provide for pain and suffering awards unless they expressly say so. The other problem for plaintiff is that he cannot recover injunctive relief against participation in the program because he is no longer in jail and any such application is moot. (Plaintiff is out of jail because a state court said he received ineffective assistance of counsel at his criminal trial). As the Second Circuit has already held that RLUIPA provides for no compensatory damages, plaintiff cannot assert otherwise, as one Second Panel has no authority to overrule a prior panel decision from a different case, and plaintiff cannot show that any intervening change in the law (such as through a U.S. Supreme Court ruling) undermines the reasoning of these prior adverse precedents. 

Plaintiff (or his lawyers who joined the case on appeal) is smart enough to argue that a different religious freedom statute, the Religious Freedom Restoration Act, does provide for pain and suffering damages, but the Second Circuit notes that cases under RFRA do not undermine the bad RLUIPA cases because RFRA is not a Spending Clause statute and is not useful in this analysis.

That brings us to plaintiff's First Amendment religious freedom claim. The First Amendment and Section 1983 (which enforces the First Amendment) has no damages caps, but plaintiff runs into a different procedural issue: qualified immunity, which shields public defendants from lawsuits when the case raises a novel issue of law. This is such a case, the Court of Appeals (Sullivan, Jacobs and Nardini) holds, because "no binding precedent establishes that a generally applicable program violates the Free Exercise Clause by requiring an inmate who is an incarcerated felon to accept responsibility for the conduct underlying his conviction."

Wednesday, May 29, 2024

Landmark malicious prosecution claim will go to trial

This case returns to the Second Circuit after a trip to the U.S. Supreme Court and a remand to the Eastern District of New York. It's a police misconduct case that the Supreme Court used as a vehicle to clarify when someone can sue the police for malicious prosecution. That ruling came down in 2022, and it's still being litigated. Since the plaintiff wins this appeal in the Second Circuit the case will continue, though the next step is probably trial.

The case is Thompson v. Clark, a summary order issued on May 28. It all started when the police came to plaintiff's house on a 911 call claiming plaintiff was abusing his newborn daughter. Plaintiff would not allow the police to enter his home without a warrant, and he was arrested for obstructing governmental administration and resisting arrest. These charges were eventually dismissed, and plaintiff sued the officers for malicious prosecution, among other claims. 

The case reached the Supreme Court, which held that you do not have to show the criminal charges "ended with some affirmative indication of innocence." You only have to show the charges ended without a conviction. This was good news for lawyers who represent police misconduct victims. So the case returned to the Eastern District of New York, which held that plaintiff must lose the case for a different reason: the police had probable cause to arrest him for obstructing. The Second Circuit (Calabresi, Park and Merriam) disagrees.

Plaintiff gets a trial on his malicious prosecution claim because the jury may find he did not actually obstruct any police activity. When plaintiff stood in his doorway, spoke peacefully with the officers and invoked his Fourth Amendment rights in demanding to see a warrant, he was not obstructing. He did not physically interfere with the police, and verbally refusing to allow the officers to enter his home is not enough to make the arrest. Nor did he engage in inappropriate or disruptive conduct at the scene. And the parties dispute whether plaintiff yelled or raised his voice. In addition, plaintiff has the right to invoke his constitutional rights to let the police enter the residence or demand to review the warrant. The jury will have to decide whether plaintiff deserves to win the malicious prosecution claim on the obstructing charge. The jury will also decide whether the police had probable cause to pursue a resisting arrest charge against plaintiff.

Friday, May 24, 2024

What to do when arbitration agreements have conflicting provisions?

This is another case that interprets the Federal Arbitration Act. Courts usually defer to management on arbitration disputes, as the national policy is to respect arbitration agreements unless there was deception on management's part or the employee can find a loophole that favors her position and allows her to keep the case in court rather than arbitration, where, let's face it, cases are less likely to succeed than in court. This case has a loophole.

The case is Coinbase, Inc. v. Suski, issued by the Supreme Court on May 23. In this case, there were two arbitration agreements. The first said that an arbitrator determines all disputes under the arbitration agreement, including whether a given dispute is even arbitrable or whether it needs to be decided in court. The second agreement says that all disputes related to the first contract must be decided in California courts. The Ninth Circuit said the second contract's forum selection clause superseded the prior agreement. Here is the question posed by this case: when two such contracts exist, who decides the arbitrabilty of a contract between the parties: -- an arbitrator or the court? (Another question, not resolved by this case, is how the parties wound up signing contradictory arbitration clauses).

This is a tricky case but it yields a unanimous ruling from the Supreme Court, which is probably spending most of its time dealing with blockbuster cases that will be decided by the end of June, such as whether the President enjoys immunity from criminal prosecution. But the mundane cases still must be decided. This is not mundane if you handle cases in arbitration, however, and the Court took this case because it wanted to clarify this legal issue.

The Court starts off this way: "In prior cases, we have addressed three layers of arbitration disputes: (1) merits, (2) arbitrability, and (3) who decides arbitrability. This case involves a fourth: What happens if
parties have multiple agreements that conflict as to the third-order question of who decides arbitrability? As always, traditional contract principles apply."

The short answer is that "before either the delegation provision or the forum selection clause can be enforced, a court needs to decide what the parties have agreed to — i.e., which contract controls." This holding draws from basic contract law principles. "When we home in on the conflict between the delegation clause in the first contract and forum selection clause in the second, the question is whether the parties agreed to send the given dispute to arbitration—and, per usual, that question must be answered by a court." What it means in plain English is that the lower courts have to decide what the parties actually agreed to.

Tuesday, May 21, 2024

Supreme Court holds federal courts cannot outright dismiss cases subject to arbitration

The Federal Arbitration Act creates a separate system of justice to resolve disputes outside of court. As many litigators know, courts have broadly interpreted the FAA to permit arbitration of nearly every dispute imaginable, including employment discrimination cases. This case before the Supreme Court asks what happens when someone files a motion to compel arbitration after the plaintiff filed suit in federal court. Is the federal action stayed pending resolution of the arbitration, or is the case dismissed?

The case is Smith v. Spizzirri, issued in May 16. Under the FAA, when a dispute is subject to arbitration, the court “shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” The issue before the Court: whether this section "permits a court to dismiss the case instead of issuing a stay when the dispute is subject to arbitration and a party requests a stay pending arbitration." 

The case is stayed, not dismissed, a unanimous Supreme Court says. While the Ninth Circuit reached a different conclusion, the Supreme Court does not think this is a difficult issue. Justice Sotomayor writes that the language of the FAA, the structure of the statute, and the purpose of the statute all point in the same direction:

When a federal court finds that a dispute is subject to arbitration, and a party has requested a stay of the court proceeding pending arbitration, the court does not have discretion to dismiss the suit on the basis that all claims  are subject to arbitration.
While the Court thinks is not a complicated issue, the lower federal courts were in disagreement. Of interest to Second Circuit people, that Circuit had foreshadowed the holding in this case nearly a decade ago, in Katz v. Cellco Partnership, 794 F.3d 341 (2d Cir. 2015).

Monday, May 20, 2024

Supreme Court rules in favor of federal age discrimination plaintiff

The Supreme Court in this case unanimously holds that an age discrimination plaintiff who is suing the federal government may challenge an adverse administrative determination even after missing the 60-day deadline to file a notice of appeal for review by the Court of Appeals for the Federal Circuit. Plaintiff wins in the Supreme Court because the deadline is not jurisdictional.

The case is Harrow v. Department of Defense, issued on May 16. This is one of those procedural disputes that the Supreme Court will not get tied up in knots about. For that, you'll have to wait until late June, when the Court issues its more controversial rulings. Still, this is an important case for lawyers who represent federal employees in discrimination cases.

After the Merit Systems Protection Board ruled against plaintiff's case (following a five-year wait), he was able to appeal to the U.S. Court of Appeals. But you only have 60 days from the MSPB's final order to do so. But plaintiff did not learn about the Board's final order until after the 60 days had expired. His appeal was therefore filed late. The Court of Appeals said the appeal was untimely because the notice of appeal deadline was jurisdictional, which means the deadline cannot be extended. Jurisdictional deadlines are the kiss of death in the federal system.

The Supreme Court reverses and holds the notice of appeal deadline is not jurisdictional. First, why the delay? The Supreme Court says the delay happened because during the five year wait for a ruling from the MSPB, plaintiff's email address had changed, which mean the MSPB ruling was sent to the wrong email address. Plaintiff found out about the adverse ruling by running a search on the MSPB's website. In other words, he learned about the ruling by accident.

While the deadline rule is strict and uses mandatory language, that does not mean it is jurisdictional. It is only jurisdictional if Congress says that it is. For this reason, most time-bars are not jurisdictional, including the ones with mandatory language. Nothing in the statute suggests Congress wanted a drop-dead rule on this particular deadline. Plaintiff thus wins his appeal in the Supreme Court and the case returns to the Court of Appeals for the Federal Circuit.

Friday, May 17, 2024

NY Court of Appeals says officer lacked probable cause to stop car over excessively tinted windows

Did you know that New York has a law that prohibits excessively tinted car windows? It does. Did you know that the police can pull you over for violating that law? They can. This case implicates both rules, but the New York Court of Appeals rules in favor of the driver.

The case is People v. Nektalov, issued on May 16. Under the Vehicle & Traffic Law, "[n]o person shall operate any motor vehicle upon any public highway, road[,] or street" with windows which have a light transmittance of less than 70%. An automobile stop may be lawfully effectuated where law enforcement has "probable cause that a driver has committed" a traffic violation. The officer needs probable cause to stop the car.

In this case, the detective said the windows were "excessively tinted." But window tints, by themselves, are not against the law. They are only illegal if they violate the 70% rule. Since the detective did not testify that the windows were so dark that he could not see inside the car, or that he had the training and experience to know a 70% violation when he saw one, or that he measured the tint to confirm the windows were illegal.

In the end, the detective's testimony was too conclusory to support a finding of probable cause. What it means is that the vehicle stop was illegal, and the contraband the officer allegedly found in the car (drugs) is not admissible.

Thursday, May 16, 2024

Inmate wins religious discrimination appeal

The Court of Appeals had reinstated a lawsuit filed by an inmate who asserts the state prison violated the First Amendment in denying him a religious meal. The trial court granted summary judgment on this claim in favor of the State, but the Court of Appeals brings the case back, and unless the case settles, it looks like this case will proceed to trial.

The case is Brandon v. Royce, issued on May 15. Plaintiff is incarcerated at Sing Sing Correctional Facility. He celebrates an Islamic holiday called Eid al-Adha, a four-day religious celebration. The prison set up a full-day event to celebrate the holiday, which included a prayer service, a shared religious meal, fellowship activities, etc. Under the plan, inmates in keeplock would also receive a meal and in the Hospital. A second event, two days later, involved serving a religious meal to inmates in the mess hall. The second event gives rise to this case. According to plaintiff, the second event was overbooked, and the Imam assured the inmates who voluntarily withdrew from the second event to make room for other inmates. Those selfless inmates would then receive the religious meals in their cells. Plaintiff was supposed to be one of the latter inmates, as he did not attend the second event and expected a religious meal in his cell. But no meal was forthcoming. Hence, this religious discrimination lawsuit brought under the First Amendment.

Defendants argued in response that the second event was not really a religious event but a family event open to Muslim inmates and their guests, and they deny approving the Imam's offer to have meal trays sent to the inmates' cells in exchange for them withdrawing from the second event. But the Court of Appeals (Calabresi, Nathan and Nagala [D.J.]) holds that, under the summary judgment rules, we have to credit plaintiff's account and then determine whether his version of events gives rise to a claim. 

Defendants' legal argument is rejected on appeal. While the jury may find that the whole thing was an "unfortunate misunderstanding" between the Imam and plaintiff, and that there really was no official arrangement for inmates to have the meals in their cells, that is for the jury to decide. Nor do penological, or safety concerns, allow the State to win the case. Prison cases are difficult to win because the State can always argue that the rights restriction drew from safety concerns. Courts do not like to second-guess these safety concerns, but that does not mean the prison always wins. The State argued that it worried that inmates might hide food in their cells, creating theft or hygienic risks. But that defense rings hollow, since the prior religious event, also involving food, allowed inmates that eat in their cells. That kind of inconsistency can lose the case for the State. But this is all for the jury if the case proceeds to trial.