Circuit Court certifies sex-abuse issue to the New York State Court of Appeals

The Me-Too movement led to new laws allowing sex abuse victims to sue their abusers long after the statute of limitations had expired. In New York, the Legislature passed the Child Victims Act. But years earlier, in New York City, the City Council had already enacted the Victims of Gender-Motivated Violence Prevention Act (VGMVPA). But the laws might conflict with each other, creating different time-frames to open up old cases. What do we do about this?

The case is Parker v. Alexander, issued on March 23. In 2000, New York City enacted the VGMVPA, which allows sex abuse/violence victims to sue their abusers within a seven-year statute of limitations. Under the state law (CVA) enacted in 2019, a one-year revival period was established, allowing minors to revive stale claims within that limited window. A year later, the Legislature extended that time period by another year. As the Court of Appeals puts it, "the CVA's revival period thus covers a period that is substantially earlier than the period of revival for claims under the VGMVPL." In 2022, since the COVID pandemic reduced in-person services and prevented victims from filing their lawsuits, the New York City Council amended that law to provide an additional two years to bring their lawsuits.

What it means is that the City law is more generous than the State law for reviving old claims. That distinction affects this case, in which a woman sues the Alexander brothers for alleged sex abuse under the City law but would be unable to do so under the State law. The defendants argue that the State law preempts the City law, as the State is superior to the City when it comes to setting the rules and statutes of limitations. If the defendants are right, then the City law, at least as to this case, is a nullity. 

The Second Circuit (Lohier, Cabranes and Jacobs) notes that both sides have powerful arguments for and against their positions. Both sets of laws regulate slightly different conduct. The First Department said in 2021 that the statute of limitations under the City law was not preempted by State law because the City law focuses on gender-motivated violence, and the State law focuses on a narrower class of cases: certain sexual offenses.

The problem is the New York appellate courts have not yet resolved this dispute. Since this puzzle raises state law issues, the Second Circuit will not definitively resolve such untested issues without giving its New York State counterpart, the Court of Appeals, an opportunity to weigh in on this matter through an advisory opinion that will then inform the Second Circuit's ruling in this case. So the Second Circuit has certified this case to the New York Court of Appeals for that purpose. If the State Court of Appeals decides to take on this issue (and it probably will), it will have separate briefing and oral argument and then issue a ruling, probably sometime in 2027. At that point, its federal counterpart will return to this case.

Protester loses excessive force on qualified immunity grounds

You may not be aware of this, but the Supreme Court on a regular basis summarily reverses rulings from around the country holding that a jury may find that police officers used excessive force in arresting people. These decisions are handed down without full briefing or oral argument on the basis that the officers are entitled to qualified immunity: that the factual record proves the officers acted reasonably at the time because no prior court rulings put the officers on notice that they were violating the Fourth Amendment. That pattern continues with a case from Vermont, where a protester was physically injured by the police after she refused a disbursal order.

The case is Zorn v. Linton, issued on March 21. Plaintiff was protesting the Governor's inauguration in Vermont; they were demanding universal health care. It was a passive-protest, in that the protesters did not fight with the police but they refused to move away when the police gave that directive. The police gave her a warning (threatening "pain compliance"), but plaintiff did not listen. So they lifted her up by her underarm after placing pressure on her wrist. This sequence caused plaintiff to suffer physical injuries.

Although the Second Circuit held the jury may find the officers used excessive force and that it was too early to grant the officers with qualified immunity, the Supreme Court, by a 6-3 vote, reverses, granting the officers immunity. Officers get immunity if they acted reasonably under the circumstances. This is one of the most complicated areas of constitutional law. Unless a case is directly on point, or quite close to the facts, then the officers are not on constructive notice that their actions are violating the Constitution. What it means for this case is as follows: while the Second Circuit denied immunity in another passive-protest case, Amnesty America v. West Hartford, 361 F.3d 113 (2d Cir. 2004), in that case, the Supreme Court says, the officers lost immunity because they inflicted physical harm without first warning the anti-abortion protesters. The Zorn case is different because the officers did give a warning. Immunity attaches because the Second Circuit has never held that the officers can be liable for excessive force even after they warned the protesters they will use "pain compliance" to break up the protest.

This immunity analysis, unique to constitutional claims for damages, essentially requires the plaintiff to identify case that is almost on all-fours with their case in order to avoid dismissal. It kills off a lot of good cases. In dissent Justice Sotomayor, writing on behalf of Justices Kagan and Jackson, says the Court majority is both misreading Amnesty America (there was a warning in that case) and narrowly applying the qualified immunity doctrine to knock out cases like this, a trend that has persisted at the Supreme Court quite some time.

A few observations about qualified immunity. The requirement that plaintiffs identify a case on point to avoid immunity is a judge-made rule that assumes (1) police officers will go bankrupt if they have to defend and possibly lose these cases where the law was not clearly-established at the time of the constitutional violation and (2) police officers are aware of case law developments in their jurisdiction and then apply that knowledge in the course of their duties. Neither factual predicate is true. Nearly all officers are indemnified by their municipalities, and police officers are not reading case law in their spare time. 

Another observation: the Court in this case drops a footnote that assumes the body of law in the Second Circuit is relevant in determining whether the law was clearly-established. The Supreme Court has never actually told us whether that is true or whether we can only look to Supreme Court case law in solving the clearly-established puzzle. The Second Circuit -- most if not all circuits, really -- look to their own body of cases for this inquiry. But nothing stops the Supreme Court from limiting the pool of cases to Supreme Court authority. If that happens, say goodbye to many (perhaps not all) damages claims under the Constitution, as there are far fewer Supreme Court cases on civil rights than the Circuit Courts have to offer, making it much harder to find a case sufficiently on point to avoid qualified immunity.

How does Muldrow affect discriminatory hostile work environment claims?

In researching recent legal developments for an upcoming Continuing Legal Education seminar, I have discovered a split among the circuit courts about how to apply the Supreme Court's recent decision in Muldrow v. City of St. Louis (2024), which relaxes the plaintiff's burden in proving adverse actions in disparate treatment claims, rejecting the prevailing rule that plaintiffs must show the personnel action significantly or materially affected a term or condition of employment; now, the plaintiff only need prove "some harm." In hostile work environment cases under federal law, the plaintiff show the abusive conduct was severe or pervasive, a test devised by the Supreme Court in Meritor v. Vinson (1986). Does Muldrow apply to hostile work environment cases? Here is the research. Bear in mind the Second Circuit has yet to conclusively resolve this issue.

Kellar  v.  Yunion,  Inc.,  157  F.4th  855  (6th  Cir.  2025):  While Muldrow addressed an adverse employment action (an employee transfer), the Sixth Circuit extends this holding to hostile-work-environment claims, recognizing that such claims are similarly based on a disadvantageous change to a term, condition, or privilege of employment. As the discrimination statutes do not require a heightened showing of harm, courts “should ask whether a work culture permeated with discriminatory harassment ‘left an employee ‘worse off respecting employment terms or conditions,’ not whether an employee was significantly worse off.” Accordingly, post Muldrow, “courts cannot require a plaintiff to show that he suffered a heightened level of harm to succeed on a hostile-work-environment claim. For summary judgment purposes, once a plaintiff provides evidence that the environment itself was objectively hostile to the protected class, so long as the hostility ‘produce[d] ‘some harm respecting an identifiable term or condition of employment,’ he meets his burden.”

McNeal v. City of Blue Ash, 117 F.4th 887 (6th Cir. 2024): “Because hostile-work-environment claims arise out of the same statutory language as disparate-treatment claims, Muldrow’s holding that Title VII does not require plaintiffs to show ‘significant’ harm applies to both types of claims. Instead, the employer's discriminatory action—or, as is the case here, the work environment—needs to produce ‘some harm respecting an identifiable term or condition of employment.’ Thus, when we consider whether a hostile-work environment was severe or pervasive enough to violate Title VII, we effectively ask whether it left an employee “worse off respecting employment terms or conditions.” Citing Muldrow, the Sixth Circuit holds that “a jury could conclude that McNeal was denied the discretion granted to other officers, qualifying as a ‘disadvantageous’ change in an employment term or condition.’”

A post-McNeal ruling from the district court in Ohio interprets McNeal to alter the standard guiding hostile work environment claims. In Aarnes v. Ohio State Univ., No. 2:24-CV-2146, 2025 WL 2734171, at *7 (S.D. Ohio Sept. 25, 2025), the court stated:

a plaintiff need only demonstrate that the employer's discriminatory work environment resulted in “‘some harm respecting an identifiable term or condition of employment.’” McNeal, 117 F.4th at 904 (quoting Muldrow, 601 U.S. at 355). The relevant inquiry is whether the work environment left an employee “worse off respecting employment terms or conditions.” Id. Despite the lowered threshold, courts continue to evaluate hostile-work-environment claims based on the totality of the circumstances, “including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.’” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787– 88 (1998)).

District courts have begun applying this standard. See, e.g., Yoder v. Ohio State Univ., 2025 WL 755276, *8 (S.D. Ohio Mar. 10, 2025) (applying the factors and the “worse off” standard when resolving a motion for judgment on the pleadings on a hostile-work-environment claim post-McNeal); Collins v. City of Detroit, 2025 WL 1019754, *7 (E.D. Mich. Apr. 4, 2025) (applying McNeal and finding that “the plaintiff is not required to allege any particular level of egregious mistreatment, only to describe a totality of instances  sufficient  to  alter  the  conditions  of her  employment  in  some  way.”).

In contrast, the Tenth Circuit does not find that Muldrow affects the hostile work environment analysis. In Russell v. Driscoll, 157 F.4th 1348 (10th Cir. 2025), the Court of Appeals stated that “an inquiry into the severity or pervasiveness of the complained-of conduct is integral to determining whether any actionable Title VII injury occurred. Stated differently, if Muldrow implicitly abrogated the severity/pervasiveness analysis for a hostile-environment claim (as Russell contends), then Muldrow abrogated the hostile-environment claim. But the Supreme Court has made clear that the severity/pervasiveness inquiry is ‘crucial’ for “prevent[ing] Title VII from expanding into a general civility code.” Russell cites two unpublished appellate rulings in support of its analysis:

The Fourth Circuit, in an unpublished decision, reached essentially the same conclusion about Muldrow as we reach here, although its analysis is brief and it is unclear if Muldrow’s effect on hostile-environment claims was actually a contested issue in that case. See Hansley v. DeJoy, No. 23-1426, 2024 WL 4947275, at *2 (4th Cir. Dec. 3, 2024). The Fifth Circuit, also in an unpublished decision, rejected an argument that Muldrow applies to hostile-environment claims, but its reasoning appears to rest as much on the plaintiff's failure to develop the argument as it does on the underlying substance. See Dike v. Columbia Hosp. Corp. of Bay Area, No. 24-40058, 2025 WL 315126, at *5 n.25 (5th Cir. Jan. 28, 2025).

Russell expressly disagrees with the Sixth Circuit’s analysis in McNeal, stating that “[i]t seems circular to ask ‘whether [the hostile work environment] left an employee ‘worse off respecting employment terms or conditions.’’  By definition, a legally actionable ‘hostile’ work environment is one so bad it ‘alter[s] the conditions of the victim's employment.’ To say that Muldrow changed this for hostile-environment claims is essentially to say that Muldrow gutted the very thing that distinguishes hostile-environment claims from discrete-act claims.”

Hinds v. PSEG Long Island LLC, No. 23-CV-08701 (RER) (LGD), 2026 WL 266010, at *7 n.5 (E.D.N.Y. Feb. 2, 2026): a judge in the Eastern District of New York sidestepped this issue. While noting that Muldrow is not limited to job-transfer cases, “Where Muldrow does not consistently extend is to hostile work environment claims, which Hinds claims in this case. Muldrow expressly does not alter the standard for an adverse employment action under federal retaliation claims, also at issue in this case, which still must be ‘material’ and ‘significant.’” Muldrow, 601 U.S. at 348.

Ziparo v. CSX Transportation, Inc., 160 F.4th 314 (2d Cir. 2025): “The effect of Muldrow on discriminatory hostile work environment claims is still unclear: Post-Muldrow, the Sixth Circuit has held that Muldrow applies to such claims and no longer requires ‘plaintiffs to show ‘significant’ harm.’ McNeal v. City of Blue Ash, 117 F.4th 887, 904 (6th Cir. 2024). But see Dike v. Columbia Hosp. Corp. of Bay Area, No. 24-40058, 2025 WL 315126, at *5 n.25 (5th Cir. Jan. 28, 2025) (summary order) (rejecting the plaintiff's argument that Muldrow changed the severe-or-pervasive test).”

Preach it!

A street preacher sued a city in Mississippi, challenging the ordinance requiring him and other street preachers to limit their speech activities to a designated protest area. After the city prosecuted him for violating the ordinance, and he was found guilty, he persisted in wishing to preach it outside the designated protest area, finding it unsuitable for reaching the proper audience. Can he challenge the ordinance under the First Amendment when he was previously convicted under the same audience? The Supreme Court says he can.

The case is Olivier v City of Brandon, issued on March 20. The exciting issue is whether the First Amendment allows the city to set up a designated protest area for religious (or political) speech like this. But that's not the issue before the Supreme Court in this case. Instead, the Court considers whether this lawsuit is foreclosed under a 1994 precedent that generally says you cannot sue the police for a civil rights violation if that lawsuit would have the effect of undoing a prior criminal conviction arising from the same conduct. That case was Heck v. Humphrey, one of the most complicated cases handed down by the Supreme Court in the last 35 years, at least in my view.

I had a similar issue about 20 years ago, when I represented a man who wanted to post political signs on his property and was found guilty of violating the town's sign ordinance. We then sued to strike down that ordinance under the First Amendment because he wanted to keep posting the signs. The argument was that he could not bring the suit because he could have challenged the constitutionality of that law in appealing from his criminal conviction. I researched the Heck out of that issue, but the courts ruled in out favor without addressing that question.  

This is not a Heck case, the Supreme Court writes, because plaintiff in this case is trying to enjoin future  enforcement of the speech law; he is not trying to effectively undue the prior criminal conviction arising from his past violation of the speech law. He is not challenging the validity of his prior conviction. Rather, he wants the law declared unconstitutional so he can preach where he wants in the future. While success in this lawsuit would necessarily mean that plaintiff's prior conviction was unconstitutional, we can't read Heck in such a literal sense. Justice Kagan writes that judicial language in court rulings cannot bind future cases in all circumstances. The Court now thinks that certain language in Heck was too broad, at least in application to cases like this one. 

A similar issue arose in Wooley v. Maynard, a 1977 Supreme Court case that said New Hampshire could not prosecute a man who put masking tape over the state slogan on the license plate, "Live Free or Die." Because who is the state to tell me what messages can attach to my vehicle? That plaintiff was also convicted of violating the state law before later suing to challenge its constitutionality. The court said Maynard could bring the case because he sought "prospective relief" and was not essentially challenging the prior conviction. Wooley is the guiding rule in the preacher case, not Heck. 

Due process, even for convicted sex offenders

In this due process case, a convicted sex offender charges the state with failing to secure him appropriate housing upon his release from prison. The Court of Appeals finds he has a case and it reinstates his lawsuit, which the district court had dismissed on a Rule 12 motion for failure to state a claim.

The case is Kotler v. Torres, a summary order issued on March 18. Under New York law, when certain sex offenders are released from custody, that release is put on hold until he finds suitable housing under the Sexual Assault Reform Act (SARA). This is where defendant Torres comes in. His his job as a parole officer, was to approve plaintiff's housing and facilitate his release from custody. To that end, plaintiff gave him more than dozen potential addresses where he might live. But, plaintiff says, Torres did not follow up on these leads, delaying his release for over a year.

This is a due process case because the court order entitling plaintiff to release from custody states he "shall" be released once proper housing arrangements are made. That mandatory language (shall) creates a property interest under the Due Process Clause. Under SARA, the Department of Corrections takes on an affirmative role in finding suitable housing. Yet, according to plaintiff, while he gave Torres a list of places to live, Torres did not take meaningful steps to make that happen. That gives plaintiff a claim that Torres was deliberately indifferent to his obligations under the court order, enough for a substantive due process claim under the Fourteenth Amendment. 

What about qualified immunity? That immunity will end the case if the law was not clearly established at the time of the alleged constitutional violation. But the Court of Appeals (Walker, Sack and Lee) says the case law was clear at the time: "state officials may not deliberately disregard court orders governing the conditions of confinement." If the law was clear at the time and defendants violated it, then the case will proceed through discovery. Once discovery is closed and the district court has another opportunity to review the case, things may turn out differently depending on what the evidence shows. But for now, plaintiff has pleaded a viable case.  

Court of Appeals vacates Rule 11 sanctions in Starbucks coffee case

In the movie A Civil Action, a lawyer representing the big, bad chemical company moves for Rule 11 sanction against the plaintiff's mass-tort lawyer played by John Travolta. The story takes place in the early 1980s, before Rule 11 became a prominent fixture in the Federal Rules of Civil Procedure. Travolta's character told the judge he had to look up Rule 11 to see what it said. The judge said that he did the same. Rule 11 is now well-known, and lawyers fear being hit with Rule 11 sanctions, which can be costly and wreck your reputation. The lawyer in this case was sanctioned, but the Court of Appeals finds the trial court abused its discretion, and the sanctions are gone.

The case is Sheehan v. Starbucks, a summary order issued on March 17. This consumer deception case alleges that the coffee company misled the public in claiming it was "Ground 100% Arabica Coffee." The argument is that the coffee also contained potassium, thus fooling the unsuspecting consumer. The district court sanctioned the plaintiff for making the frivolous claim that the 100% thing was false.

When a trial court sanctions the lawyer under Rule 11, it must be convinced the lawsuit was completely frivolous and filed in bad faith, and/or without any factual support. Courts are reluctant to impose this punishment to ensure that lawyers will bring innovative lawsuits and zealously represent their clients. The Court of Appeals writes that "judges should refrain from imposing sanctions where such action would stifle the enthusiasm or chill the creativity that is the very lifeblood of the law."

Sanctions were not warranted here, says the Second Circuit (Raggi, Nathan and Furman [D.J.]), even though the trial court determined that the "Ground 100% Arabica Coffee" advertisement was so obviously incorrect as to be frivolous. While the district court had a better interpretation than the plaintiff's lawyer, other courts around the country have said cases like this are not frivolous.

the Seventh Circuit has allowed similar claims about additives in parmesan cheese to proceed past a motion to dismiss, explaining that “certainly a plausible reading” of the phrase “100% Grated Parmesan Cheese” “is that ‘100%’ applies to all three words: it's all cheese; all the cheese is Parmesan, and it's all grated.” Bell v. Publix Super Mkts., Inc., 982 F.3d 468, 476-77 (7th Cir. 2020). And the First Circuit, in a case featuring nearly identical language to that present here, observed that it would be “by no means unreasonable” for a consumer to read “Freshly Ground 100% Arabica Coffee” to mean “that the package contains only coffee (and Arabica coffee at that), with no nuts (or anything else).” Dumont v. Reily Foods Co., 934 F.3d 35, 41 (1st Cir. 2019).

The district court also sanctioned the plaintiff's lawyer for not sufficiently investigating the facts prior to filing the lawsuit. But the record shows he reviewed a report about a study into the potassium levels in the coffee, and he found multiple newspaper articles reporting on these laboratory tests. He then sent coffee samples to a different laboratory for independent testing. This evidence undermines any finding of bad faith by the plaintiff's lawyer. While this evidence was not attached to the lawsuit, plaintiff was not required to "plead evidence" in filing the lawsuit. 

For the plaintiff's lawyer, the Rule 11 sanctions are gone. So is the contempt of court finding that the district court imposed, seemingly an addendum to the Rule 11 order. For the plaintiff's lawyer, even though he lost the case on the merits, yesterday was a very good day. 

 

Another false arrest case bites the dust

For the second time this month, the Court of Appeals has reversed the trial court in finding that false arrest plaintiff cannot sue law enforcement due to qualified immunity -- even though charges against the plaintiff were dropped.

The case is Sarcaza v. City of New York, issued on March 11. Plaintiff was arrested for allegedly assaulting a teenage girl on a New York City bus. While video footage of the encounter was inconclusive, the girl was in distress at the time and later identified the plaintiff from a photo array. The case against plaintiff was dismissed on speedy trial grounds; hence this false arrest lawsuit.While the district court allowed this case to proceed to trial on the basis that the video footage did not show physical contact between plaintiff and the girl, as well as some inconsistencies in the girl's account, the Court of Appeals (Chin and Perez) reverses, on grounds familiar to Section 1983 lawyers who handle these cases.

The police can prove they had probable cause to arrest if the evidence was reasonably trustworthy that the guy committed a crime. If so, then no false arrest lawsuit. The low probable cause standard kills off many such lawsuits. But we also have to consider qualified immunity, which also lets the police off the hook if they had "arguable probable cause," which means that even probable cause did not exist, reasonable jurors might find the officers had a good faith basis to make the arrest anyway.

Here is the takeaway quote: "Unless exculpatory evidence or circumstances that raise doubts as to the alleged victim's veracity arise, probable cause is present where a police officer relies on such victim's identification of the suspect and statement of the alleged crime." In other words, to win a false arrest case against the police, the plaintiff has to essentially show the police had nothing on him, a lack of evidence that makes it clear they were setting up the plaintiff for arrest or just did not know what they were doing. You don't need "hard certainties" or a belief that, more likely than not, a crime has been committed.

Under these principles, plaintiff loses the case even before trial. The Court of Appeals writes:

Based on the undisputed facts in the record, a reasonable police officer in [Detective] Friedman’s position could have found probable cause that Sacaza had touched the Complainant inappropriately. While the Complainant's statements and identifications of Sacaza served as Friedman's principal basis for finding probable cause, the MTA Footage and other information provided objective evidence for a reasonable police officer to arrest and charge Sacaza.

The record contains the following undisputed evidence to support the conclusion that Sacaza sexually assaulted the Complainant: (1) the Complainant reported the alleged assault to her school and the police almost immediately; (2) the Complainant identified Sacaza as her assailant on two separate occasions, including once in-person; (3) Friedman learned that Sacaza was a person of interest in other public lewdness incidents; (4) the MTA Footage shows the Complainant being uncomfortable and looking back several times while Sacaza is positioned directly behind her for more than a minute; (5) the MTA Footage shows that the Complainant felt the need to and did take videos of Sacaza, which she later shared with Friedman; and (6) the MTA Footage shows that the Complainant was so visibly disturbed by Sacaza that a nearby passenger felt the need to console her. Based on this evidence, a reasonable police officer could have believed that Sacaza committed a crime justifying arrest.

 

False arrest case is dismissed on qualified immunity grounds

False arrest cases are often dismissed prior to trial because the police are able to prove they had probable cause to arrest the plaintiff. Even if the charges against the plaintiff are ultimately dismissed and the criminal process reaches that endpoint, the police can still avoid liability if they had arguable probable cause, a qualified immunity concept warrants dismissal of the case when the police reasonably believed, even if mistakenly, that the plaintiff had committed a crime. In this case, the federal trial court said the jury may rule in the plaintiff's favor on the false arrest claim, but the Court of Appeals nixes the case entirely on qualified immunity grounds.

The case is Jin v. City of New York, issue don March 12. It took the Court of Appeals nearly two years to decide this case, owing to complexity of the issues and the lengthy dissent from Judge Kearse.

It all started when the police arrived at the plaintiff's home after a 911 call reported a domestic violence dispute. The plaintiff was arrested for assault and harassment, but the charges were dropped. Upon arriving at the house, the police arrested plaintiff after her son reported that she had assaulted a family member, who pointed out his injuries to the police and simulated how the plaintiff had assaulted him. Plaintiff denied any wrongdoing and said that she was the assault victim. The police never interviewed the neighbors even though plaintiff said they would exonerate her. 

After the charges against plaintiff were dropped, she sued the police for false arrest. The trial court said plaintiff had enough evidence to win the case, but the Court of Appeals reverses, and the case is over. The Second Circuit (Bianco, Perez and Kearse [dissenting])  notes that the police can make an arrest upon "reasonably trustworthy information" that the plaintiff had committed a crime, and "an identified citizen informant is presumed to be reliable" in this context. So, even if the son was not present for the alleged assault, and had merely reported what the victim had told him, that was enough for probable cause, as the victim did show the police his injuries and explained how the plaintiff had allegedly attacked him. "Reasonable officers could disagree as to whether there was probable cause to arrest based on the reasonably trustworthy information relayed to the Officers," "which was simultaneously corroborated [by the victim] demonstrating the attack and displaying his injuries."

The case is significant for the Court of Appeals' holding that domestic violence cases are held to the same false arrest standards as every other case, and there is no special rule that the police need to be more skeptical when a domestic violence victim reports a crime. The district court said the inherent "relational dynamics" of alleged domestic disputes require additional inquiry by the police. But "the mere fact that a victim, eyewitness, or informant is reporting criminal activity arising from a domestic dispute does not, by itself, raise a doubt as to the witness's veracity sufficient to undermine the presumption of reliability that officers are permitted to attach to such witnesses." 

District court abused its discretion in resolving summary judgment motion under Rule 12 standard

The Court of Appeals has reinstated an employment discrimination lawsuit because, although the defendants moved for summary judgment under Rule 56, the trial court instead dismissed the case under the rules guiding a motion to dismiss under Rule 12. 

The case is Miller v. LaManna, issued on March 9. Plaintiff was a correction officer working in the New York prison system. He claims he was treated differently because he is Black, at least compared with while officers who were not afforded similar mistreatment for engaging in comparable misconduct. Plaintiff also claims he suffered retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission.

At the close of extensive discovery, the state moved for summary judgment, arguing the evidence generated in discovery proves the plaintiff did not suffer any racial discrimination or retaliation. The summary judgment record was approximately 1,700 pages. But the state also said the complaint that initiated this lawsuit did not state a claim for discrimination. That is the sort of argument defendants normally make at the start of the case, not when discovery is completed. Yet, the district court, rather than resolving the case under summary judgment standards -- determining if the evidence might support a verdict in the plaintiff's favor -- instead determined whether the complaint states a plausible claim; under that inquiry we do not examine any documents beyond the complaint itself. Under the Rule 12 process, the district court said plaintiff has not stated a plausible claim.

The district court abused its discretion, holds the Court of Appeals (Lynch and Menashi), which notes that shortly after the district court dismissed this case under Rule 12, the Court of Appeals held in Lugo v. City of Troy, 114 F.4th 80 (2d Cir. 2024), that the district court cannot resolve a motion to dismiss on standing grounds simply by reading the complaint if there is also a summary judgment record that might support the plaintiff's claims. While Lugo held as such in a standing case, its reasoning applies to this case, the Second Circuit holds, over Judge Sullivan's dissent. Quoting from Lugo, the Second Circuit states that "the administration of justice is best served when the district court applies the standards that are appropriate for the pertinent motion and stage of litigation." Since the stage of litigation when defendants in this case was post-discovery, the proper procedure was summary judgment, not a motion to dismiss. The "Rule 12(d) conversion" in this case an abuse of discretion. 

The case returns to the district court to determine if the summary judgment record demonstrates that plaintiff is entitled to a trial on his discrimination and retaliation claims. 

Supreme Court rules for religious parents in public school gender-transitioning case

Without hearing oral argument, the Supreme Court has ruled that religious parents in California are likely to win their case challenging a state law that bars public schools from telling them about their childrens' efforts to engage in gender transitioning at school, i.e., the students preferred pronoun or name. The ruling is grounded in the First Amendment (freedom of religion) and Fourteenth Amendment (right to raise your children without certain governmental intervention).

The case is Mirabelli v. Bonta, issued on March 2. The law in California provides that parents cannot learn this information without consent from the student. My guess is that most students have already told their parents about their gender-transitioning efforts but that some have not, perhaps because they know their parents will not approve. Whatever the policy justifications for the California law, it showcases the culture wars that are now being resolved the Supreme Court on a regular basis. This case reaches the Court because the Ninth Circuit stayed the trial court's order striking down the California law, barring the schools from misleading parents about their childrens' gender presentation at school and their social transitioning efforts.

The factual scenarios arising from the California law are varied. Some parents just want to know what their children are doing in this regard: changing their preferred name and pronoun. Other parents, however, allege that as a result of the law, they did not know about their daughter's gender dysphoria, and their daughter ultimately attempted suicide before their parents could intervene. These facts make this a new kind of case for the Supreme Court.

While it is a new case, however, the Court lifts the Ninth Circuit's stay and reinstates the trial court's injunction against enforcing the law, but it does so on an expedited basis, without oral argument. The Court applies precedent holding that parents have the First Amendment right to raise their children as they see fit, particularly on religious matters, without governmental interference. That's the Free Exercise Clause. Of course, cases under this Clause never involved gender transitioning, though last term the Court said schools cannot force objecting religious parents to allow their children's exposure to LGBTQ storybooks. That logic, the Court says, supports the parents in this case,

The other line of Supreme Court authority guiding this case is the Fourteenth Amendment's protection, under the substantive due process line of cases, holding that parents and not the government have primary authority in how to raise their children. Those cases of course did not involve LGBTQ rights, but they date to the 1920's, so they are a fundamental right under the Constitution, even if the Constitution does not make explicit reference to these rights, which are implied in light of U.S. history.

The ruling was 6-3. No surprise there. The Republican-appointed justices ruled for the parents, and the Democratic-appointed justices dissented. Justice Kagan asks in dissent how the Court can resolve such unprecedented issues, under the fuzzy substantive due process doctrine, without oral argument and full briefing, which is the normal course of affairs. She notes that substantive due process "has not been of late in the good graces of this court," particularly by the six-justice majority in this case, as its boundaries are not clear and the justices have criticized it in the past in allowing judges to impose their personal views in resolving cases. 

Esoteric statute of limitations issue under the Federal Tort Claims Act

This personal injury case arises from a workplace accident at Long Island MacArthur Airport in 2021 that injured the plaintiff, who sues under the Federal Tort Claims Act. Plaintiff sued in state court, but the government removed the case to federal court on the basis that federal court has exclusive jurisdiction over FTCA cases, and that any claims against federal employees also can only be filed in federal court. This interplay between state and federal court gives rise to an interesting statute of limitations issue for which there is a Circuit split that might someday reach the Supreme Court.

The case is Fiermonte v. Deonarain, a summary order issued on March 4. What injured the plaintiff was being electrocuted. A coworker died from that electrocution. Plaintiff filed suit on November 10, 2022 in state court. The following April, plaintiff submitted an administrative claim to the Federal Aviation Administration, which wrote back denying his claim and advising he could file suit in federal court under the FTCA no later than six months after this letter was mailed. Within that six-month window, on February 12, 2024, plaintiff amended the complaint in state court, naming Deonarain as a defendant and claiming that this defendant acted within the scope of his federal employment with the FAA. After the federal government removed the case to federal court, the district court dismissed the case on statute of limitations grounds, reasoning that the case reached federal court more than six months after he exhausted his administrative remedies.

The Court of Appeals (Walker, Sack and Lee) reinstates the case, as it might actually be timely. The district court will have to take a closer look at this issue.

Section 2401(b) of the FTCA requires that a plaintiff commence an 'action' within six months of exhausting their administrative remedies. 28 U.S.C. § 2401(b). However, the statute is silent on whether the action must be filed in federal court or, alternatively, whether a complaint initially filed in state court within the six-month time period and then later removed to federal court—as was the case here—may nonetheless satisfy Section 2401(b)." 

This is an esoteric statute of limitations question, and Courts of Appeal around the country have reached different holdings. The Fourth and Fifth Circuits hold that filing suit in state court does not toll the statute of limitations, requiring dismissal of the case if it reaches federal court after six months. The Seventh and Ninth Circuit have reached a contrary conclusion. Since we have divided authority on this issue, but limited briefing, the Court of Appeals returns the case to the district court to rule on this issue.  

"Ghost guns" case returns to trial court to decide whether New York can regulate them

The State of New York has sued certain gun manufacturers for selling materials that allow you to make "ghost guns," defined as homemade guns that lack serial numbers and are therefore untraceable. That led to a series of motion practice and appeals examining whether these ghost guns are legal or whether the State can enjoin their production. The case reaches the Court of Appeals again, which declines to issue a conclusive ruling.

The case is New York v. Arm or Ally, LLC, a summary order issued on February 26. While the trial court initially denied defendants' motion to dismiss the case, finding the State had asserted a claim against the manufacturers in that the materials qualified as "firearms" under the Gun Control Act, the Court of Appeals in 2024 heard oral argument but held the appeals in abeyance because the Supreme Court was deliberating on Bondi v. VanDerStok, 604 U.S. 458 (2025), which issued in March 2025.

The VanDerStok ruling said that at least some weapons parts kits and unfinished frames or receivers are “firearms” within the meaning of the GCA. The Court noted, however, that at some point a product may be “so incomplete or cumbersome to assemble” as to no longer constitute a weapon, or “so far from a finished frame or receiver that they cannot fairly be described using those terms,” thus bringing them outside the scope of the GCA.

The VanDerStok ruling is now the law of the land. The district court, however, did not have the benefit of that ruling in determining whether New York could bring this lawsuit. The Court of Appeals (Bianco, Menashi and Lee) returns this case to the district court for that purpose.  

Court of Appeals sidesteps separation-of-powers arguments relating to the NLRB and other federal agencies

Here is a case for the modern age: the National Labor Relations Board proceeded against certain health care facilities, claiming they were denying the labor rights of their employees. But the employers mounted a significant defense: in today's political climate, the NLRB had no power to proceed against them because (1) the NLRB lacks a quorum, a byproduct of the Trump administration's maneuverings, and (2) the rules in place that constrain the President's ability to fire members of the board are unconstitutional. 

The case is Care One LLC v. NLRB, issued on February 5. The NLRB is a federal agency that enforces the National Labor Relations Act and resides in the Executive Branch. The President appoints the five-member board to a five-year term and can only be removed by the President "for neglect of duty or malfeasance in office, but for no other cause." An administrative law judge rules on alleged NLRA violations, and the ALJ is also protected from political dismissals. The Merit Systems Protection Board, whose members can only be removed by the President on non-political grounds, determines whether the ALJ's may be terminated.

The employers argue that the NLRB was not properly constituted and that the removal procedures for NLRB and MSPB members unconstitutionally interfere with the President's authority to fire them. These arguments may not seem exciting, but they strike at the heart of the U.S. constitutional order, as the present administration is trying to exert unprecedented control over these agencies. If the employers are correct about this, then these agencies were not permitted to proceed against them because they are no longer independent actors but agents of the President. 

Litigation relating to these issues is now raging throughout the federal system, and once the Supreme Courts gets its hands on these cases, we may be living under a very different administrative state than the one we have grown accustomed to over the last few decades. But we are not there yet.

The Court of Appeals (Raggi, Perez and Kahn) sidesteps these issues, and resolves the case in a different way: there is no irreparable harm to the employers, which means there can be no preliminary injunction that would allow the courts to halt the proceedings against them. Upon a finding of irreparable harm flowing from a likely constitutional violation, you'll get an injunction. But while constitutional violations (like free speech) often support a finding of irreparable harm (in that the harm cannot be undone years later following full litigation), that principle does not guide all constitutional violations. The Court finds that no irreparable harm can result from the violation of separation-of-powers principles such as that asserted here. The legal arguments here, relating to the legitimacy of the agency-member removal requirements, "do not cause cognizable harm in all instances," as "removal violations cause cognizable separation-of-powers injury only when the person afforded removal protection engages in action that he would not have taken but for the President's inability to remove him." Since the ALJ in this case -- potentially protected under unconstitutional removal rules -- is no longer on the case due to his retirement, and Care One's case is now before a full NLRB, there is no risk of legal injury from the ALJ and therefore no irreparable harm. 

Judge Perez concurs in the result and offers a lengthy discussion that the Court is also able to find the employers in this case cannot prevail on the merits because the removal procedures governing the NLRB are constitutional 

New York Court of Appeals finds search may have violated Fourth Amendment

The rules under the Fourth Amendment's prohibition against unreasonable searches and seizure are so complex and nuanced that only lawyers and judges understand them and, even then, judges sometimes do not understand them, which is why God created the New York Court of Appeals. This case asks whether the defendant was properly arrested following a search of the apartment where he was staying overnight. The Court of Appeals returns the case to the Appellate Division to reconsider the gun charge.

The case is People v. Shaw, issued on February 19. The defendant was charged with murder, attempted murder and other horrible crimes that left dead and paralyzed bodies in his wake. When the police arrived at the apartment where defendant was staying, they ordered defendant to exit the building and then ordered the tenant and her cousin to come out with their hands up and lie face down on the ground, all the while pointing guns at them. At this point, the tenant consented to a search of the apartment, where the police found an illegal weapon. The Appellate Division said the search was legal under the Fourth Amendment because, while  the police were wearing SWAT gear and their manner of entry constituted coercive circumstances, the tenant's consent ultimately was voluntary and suppression of the gun was thus unwarranted.

The Court of Appeals finds that the circumstances surrounding defendant's arrest violated the Fourth Amendment, as interpreted by Payton v. New York, 445 U.S. 573 (1980), because the sanctity of the home, a prominent concern under the Fourth Amendment, was invaded when the SWAT team displayed their authority in such a manner and induced the defendant to exit the home under this coercion. No reasonable person would have felt free to ignore the officer's command to leave the home. 

 

Here is where things get tricky. While the Appellate Division said the police actions in forcing defendant to exit the building were coercive and therefore violated the Fourth Amendment, it also said the search that followed was legal because the tenants who were also drawn out of the building validly consented to the search. The Court of Appeals says that holdings like this might incentivize officers to violate Payton without repercussions simply by seeking consent from a third party. But while the dissent wants a categorical rule that a defendant's unlawful arrest can never taint the consent of a third party, the majority follows the rulings from around the country that hold that a third party's consent may not be enough to make the defendant's arrest a legal one. The Court writes, "allowing police to coerce a defendant out of the home in violation of Payton and then, in the absence, of counsel, seek consent to search the home, could sure put the police in a better position than they would have been if no illegality had transpired. That the consent was provided by a third party does not obviate these concerns."

The case returns to the Fourth Department to assess whether the tenant's consent to search the building is too attenuated from the coercive tactics that drew the defendant from the building in the first instance. If so, then the search was illegal. If not, the search was legal and the police may use the gun against the defendant at trial.

No disparate impact liability against third-party criminal screening company servicing apartment building

This Fair Housing Act case alleges that a third-party vendor that screens the criminal records of applicants who want to live in residential apartments is liable for disparate impact against Hispanic residents. The trial court, following a lengthy trial, ruled against the plaintiff. The Court of Appeals agrees and says the vendor did not cause the denial of the housing application simply by providing that report highlighting the applicant's criminal record.

The case is Connecticut Fair Housing Center, Inc., v. CoreLogic Rental Property, issued in February 20. CoreLogic is the screener, using the CrimSAFE screening platform. Plaintiff's application to move from a one-bedroom to a two-bedroom apartment was rejected after screening found that her son, who lived with her, had a pending shoplifting charge that was ultimately dropped. 

The argument is that screening procedures like this have a disparate impact on Hispanics, who are arrested at a higher rate than white applicants. That disparate impact would violate the Fair Housing Act, which holds defendants liable if they do not intend to subjectively discriminate against racial minorities if the process by which applications are denied bears no reasonable relationship to the application itself, i.e., the desire to live in the apartment. 

The question here relates to causation: did CoreLogic's screening process proximately cause the housing application denial? We are not talking factual causation but legal causation sufficient to hold this entity liable under the FHA. That's a legal inquiry that scholars and judges have been grappling with for decades. The district court's finding -- that CoreLogic cannot be held legally responsible for the application denial   -- is affirmed on appeal. 

The Second Circuit (Wesley, Menashi and Cabranes) finds that, apart from the screening process, "it was the housing provider that controlled every other aspect of the application process" and made the final decision after reviewing the background report and deciding what to do with the report's findings. In other words, CoreLogic's screening procedures were too attenuated from the housing provider's decision to deny the application. The legal system will not hold such a third-party vendor liable even if the layperson might partially blame the application denial on CoreLogic's investigation that, in the end, penalizes one race for conduct based on disparate impact. 

What the Supreme Court did in the tariffs case

The Supreme Court has struck down the far-reaching tariffs imposed by the Trump administration, finding that the statute invoked by Trump does not authorize them, and that ruling otherwise would allow the Executive Branch (the Presidency) to take on the functions that the Constitution solely affords to the Legislative Branch (Congress).

The case is Learning Resources v. Trump, issued on February 20. After taking office, Trump imposed tariffs against countries all over the world. He did so under the authority of the International Emergency Economic Powers Act, enacted in 1977 to allow the President to address significant international threats by declaring a national emergency. In this case, Trump said the national emergency was international drug trafficking and the economic crisis. Under Trump's order, the tariffs would essentially tax imports and therefore favor American businesses, though economists believe the tariffs would raise prices on the consumer, who would essentially absorb the extra financial penalties in the marketplace.

By a six-three vote, the Supreme Court finds that the Act does not authorize the tariffs. The Act does give the President authority to regulate the exportations of any property in which any foreign country has any interest. Does this language include the power to unilaterally impose tariffs? No, says the Court, which reviews the definition of "regulate" and explains that, under a constitutional doctrine that the Court has previously articulated, the "major questions doctrine," we cannot interpret ambiguous statutes to grant the President authority to take on extraordinary powers normally delegated to Congress under the Constitution. This principle respects the separation of powers enshrined in the Constitution. 

In this case, we know that the Constitution gives Congress power to impose a tax, which is essentially how we define a tariff, as it raises revenue by governmental directive. The Court is unwilling to assume that Congress, in passing the emergency powers act, intended to delegate taxing authority to the President without the ability for Congress to pass judgment on such a measure simply because the President declares an emergency.

Adding to the Court's analysis is that no President has previously tried to impose any tariffs without congressional authorization, much less tariffs of this size and scope, which reach around the world and would amount to trillions of dollars. In the end, without clear congressional authority to impose these tariffs unilaterally and with congressional authorization, the Court will not allow the President to impose these tariffs under the emergency act. 

If you are keeping score, Chief Justice Roberts wrote the majority opinion, joined by Justices Barrett, Gorsuch, Sotomayor, Kagan and Jackson. Roberts is a Republican who rules with the liberals on an infrequent basis, and Trump appointed Barrett and Gorsuch. The other three Justices in the majority were appointed by Democratic presidents. So this is a bi-partisan ruling. Justices Thomas, Alito and Kavanaugh dissented. 

Title VII retaliation fails on summary judgment

This case arises from the plaintiff's prior settlement agreement with the City University of New York, which stated that she would remain in her faculty position for two years, during which time she would work toward her reappointment or tenure, i.e., completing her doctorate. The settlement grew out of a prior grievance. Plaintiff then sued CUNY, claiming that it gave her a class schedule that interfered with her reappointment or tenure, and that CUNY did so in retaliation for her prior protected activity: complaining about discrimination. The plaintiff loses on summary judgment.

The case is Brown v. CUNY, a summary order issued on February 18. Plaintiff claimed that, as a result of CUNY's alleged interference with her efforts to obtain a doctrine, she was denied tenure and terminated. The Court of Appeals holds that no jury can find that CUNY knowingly offered a false reason for her termination, that is, there is no pretext. 

Plaintiff loses, the Court of Appeals (Bianco, Perez and Kahn) holds, because she does not dispute that the settlement agreement governed her tenure application process, and that she did not complete her doctoral program, as the agreement had required. But she cannot prove that the scheduling conflicts which she claimed interfered with her doctoral programs were intentionally created by CUNY. Rather, the Court says, the evidence shows that CUNY tried on multiple occasions to accommodate her scheduling conflicts; CUNY would fix the problem when plaintiff brought it to their attention.

The Court also finds a "mismatch" between who designed plaintiff's schedule and who knew about her prior protected activity. While plaintiff complained to the Dean and HR, the one who worked on the schedule was not aware of her discrimination complaint. "The lack of knowledge on the part of particular individual agents is admissible as some evidence of a lack of a causal connection." That language derives from Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111 (2d Cir. 2000). While the Gordon case is famous for the "general corporate knowledge" rule -- that everyone in management is presumed to know about the plaintiff's protected activity, that does not get plaintiff off the hook if an individual actor was not aware of the protected activity and that lack of knowledge therefore cuts off the causal link between the protected activity and the adverse action, such as termination.

FIrst Department reinstates racial discrimination claim

The Appellate Division has reinstated a claim that a Black plaintiff was denied a promotion and fired because of his race. The First Department recognizes that the complaint asserts a cause of action. We see once again how the New York State and City Human Rights Laws operate.

The case is Altidor v. Medical Knowledge Group, LLC, issued on February 17. This is a classic disparate treatment case. Plaintiff asserts that that he was fired after making one mistake. Two of his white coworkers made similar mistakes. But they were neither reprimanded nor terminated. Hence the disparate treatment claim. 

As the First Department puts it, "Plaintiff specifically alleged that one of the white coworkers was an IT Help Desk Technician, the same position he held, and that the coworker performed substantially similar work under similar working conditions. He further alleged that he helped fix some of the mistakes that this coworker had made in the past." Is this enough to assert a disparate treatment claim? Yes, says the First Department. We don't have much analysis here, but the facts, as stated in the ruling, make out a claim, opening up the case for discovery.

Plaintiff also asserts a claim for failure to promote. Plaintiff says that someone else got the position: a coworker got the position that plaintiff had already been performing. Nor was the position posted before it was filled. Under the generous standards guiding discrimination claims in the state and city, the First Department writes, "These allegations are sufficient to meet plaintiff’s pleading burden as this Court has previously held that it is unnecessary for a plaintiff to allege that he applied for a promotion where he has alleged that promotions were typically made unannounced and unsolicited or where defendant failed to advertise the position."

Court rejects proposed settlement between EEOC and labor union as not in the "public interest"

In our world, if the case settles, then the case is over. Most civil rights cases settle privately and the court will issue an order dismissing the case without analyzing whether the settlement is fair or not. But there are exceptions to this rule. One of them arises in this case, where the EEOC has been in litigation against a labor union for more than 50 years and decided to resolve the case once and for all. The trial court had different ideas, and the settlement is rejected.

The case is EEOC v. Local 580 of the International Association of Bridge, Structural and Ornamental Ironworkers, a summary order issued on February 12. The Department of Justice sued the union in 1971. That was the Nixon Department of Justice, by the way, which accused the union of racial discrimination in denying employment opportunities to non-white job applicants by excluding them from union membership and refusing to send them out to available jobs. 

A consent decree was eventually put in place but the union violated its terms again and again over the years. But in 2019, after several years of not hearing any complaints of discrimination from Local 580 members, the EEOC decided that continued supervision over the union was no longer warranted. The agency's research showed that only 17% of those union members interviewed said they were victims of racial discrimination. The EEOC also hired an expert who found significant racial disparities with respect to overtime hours, but the expert said these disparities were the fault of employers, not the union. This analysis only focused on 2018-2019, however, as the union had only collected data from 2018 to the present. Based on this evidence, the EEOC moved to end the court/EEOC supervision over the union.

The trial court denied the motion, and the Court of Appeals (Calabresi, Lee and Nathan) agrees that it is still too early to withdraw this supervision over the union. Why? Because it is not "fair and reasonable" under the case law. The court finds the union had consistently ignored court orders to maintain good record keeping regarding critical data about the operation of its referral hall. So we do not have reliable data about how things really work at the union. It is therefore not clear if the proposed consent decree would improve racial disparities among union workers, the entire purpose of the litigation. 

Nor is it in the public interest to withdraw this court/EEOC supervision, the Second Circuit holds, not only because of the faulty record-keeping, and adopting the consent decree might signal to future litigants that disregard for court-ordered obligations will be rewarded. 

Children have standing to challence the State's child placement laws

This case examines the procedures in New York when a child is removed from their biological parents and the child's relatives want to provide care. Not everyone is allowed to adopt: those convicted of certain crimes are unable to do so, and if the evidence suggest the relatives had abused other children, their application will also be denied. This case is brought by the children, claiming these procedures violate the constitutional right to family integrity.

The case is B.B. v. Hochul, issued on February 2. This case does not actually review the legality of these child adoption procedures. We have a more esoteric issue to deal with: do the children have standing to bring this lawsuit? 

Standing can get in the way of a good lawsuit. You need to show you are in a position to benefit from a favorable court ruling. The district court said there is no standing because the children currently live with their relatives  and, for those who do not, they cannot show any injury because they were not under the state's care. Other children did not have standing, the trial court said, because they only alleged inadequate treatment, not suboptimal care.

The Court of Appeals (Park, Menashi and Kahn) reverses, finding the plaintiffs suffered a "concrete injury" under Article III of the Constitution. Without that finding, you cannot sue anyone simply to obtain a favorable court ruling. Here, the children have standing because "placements with non-relatives make children less likely to find permanent placements and increase the risk of psychological and other harms." Such harms are cognizable under the Constitution

The children also have standing because the Constitution itself protects familial relationships from unwarranted governmental interference. The Constitution does not actually say that, but the Supreme Court has ruled that such rights are implied under the Constitution. What is more, the Constitution ensures that people under the state's custody, be it prisoners or children in these circumstances, can legally expect the government to keep them free from harm.

This looks to be an important standing ruling from the Second Circuit, which goes on to find that the children may bring this lawsuit because they can trace their injuries to the allegedly unconstitutional child placement policy and its mandatory disqualification rules. As for whether these rules are legal, the case returns to the district court, as the Court of Appeals is "a court of review, not of first view."  

Defendant's medications were no barrier to plea bargain

In this criminal case, the defendant pled guilty. In order to do that, the trial court has to make sure the defendant is pleading guilty voluntarily and that he knows what he is doing. One way to accomplish that is to ask if the defendant is taking any medications. That line of inquiry brings this case to the Court of Appeals.

The case is United States v. Boria, issued on February 4. Defendant was charged with conspiring to distribute cocaine and possessing a firearm. He then decided to plead guilty. The judge asked if he was taking medication. Defendant said he was taking medication "for sleeping problems and bipolar." The judge then asked a series of questions relating to defendant's capacity to understand what was happening, i.e., "are you clearheaded" and "do you understand what's happening here in court?" Defendant answered Yes to these questions. 

Defendant seeks to vacate the sentence (a mandatory term of 15 years) on the basis that the trial judge did not adequately ask about his medication, their side effects, and their impact on him. Defendant loses the appeal under the "plain error" standard of review, one of the most difficult appellate standards, but which applies here since defendant did not raise this objection in the district court. But you get the sense that even under a less burdensome standard of review, defendant would lose the appeal.

The Court of Appeals (Park, Lohier and Kearse) finds that while the district court must ask about the side effects of medications, it did so here when it asked if defendant felt clearheaded and understood what was happening in court that day. The Court of Appeals sees no "red flags" in the record on this point that might have caused the trial judge to pause before proceeding with the plea proceeding.  

No speech retaliation claim where prison doctor criticized medication policy

First Amendment retaliation litigation has never been the same ever since the Supreme Court held in 2006 that it's not protected speech if the government worker speaks out pursuant to his official job duties. That was the Garcetti case. It was believed at the time, at least by some of us, that the lower courts might interpret Garcetti narrowly and hold only that "mandated" speech is unprotected but that otherwise speech that relates to your employee remains free speech for which you cannot be punished. That wistful hope is long behind us, and the courts now hold that speech that is part and parcel of your ability to perform your job is unprotected and management has the right to discipline you for it. This case shows us how it works.

The case is Salvana v. DOCCS, a summary order issued in February 5. Plaintiff was a doctor in the state prison system who claims he suffered retaliation after speaking out against the medication abuse policy that requires doctors to get permission from higher-level officials before they prescribe addictive or unsafe medications. So plaintiff did speak up. But was it protected speech that insulates him from discipline? It is not, the Court of Appeals (Jacobs, Leval and Sullivan) says.

Plaintiff spoke as an employee (unprotected) and not as a citizen (protected) because, while he claims it was not his job to criticize DOCCS policy, the Garcetti inquiry extends beyond that narrow issue-framing. Plaintiff loses because his "core duty" was to ensure the "high quality of medical care": for his patients. His criticism of the medication policy furthers that goal, as he discussed the policy's effect on the medical needs of specific individuals, focused narrowly on exempting only his own unit from its requirements; he said he knows what's best for his patients. 

Under this angle, plaintiff's speech was part and parcel of his ability to perform his core job duties. He did not raise abstract objections to system-wide, broad policy issues, which might bring his case within the First Amendment's protections. Instead, the Court of Appeals holds, "he attacked the policy primarily on the ground that it was interfering with his ability to care for his patients as he saw fit in the unit that he supervised."   

Excessive force verdict is gone

This qualified immunity case shows us what happens when the case is unique and the jury rules in your favor but the court determines later on that the case was sufficiently esoteric that the police officers who committed the constitutional violation were not on constructive notice that a judge later on would find they did anything illegal.

The case is Matusak v. Daminski, issued on January 29. This case went to trial in the Western District of New York. The jury awarded plaintiff $200,000 in damages. But that was not the end of the case. Defendants raised a qualified immunity argument, which led the trial court to ask the jury, in writing, to particularize what it believed took place when the defendants struck plaintiff. Those answers doomed the verdict.

Plaintiff was arrested following a foot pursuit, which ended after the officer directed plaintiff, without success, to stop resisting arrest. According to the jury, the police reasonably believed that plaintiff had posed a threat to officer safety when defendant Murphy struck him to effectuate the arrest. As for the second arresting officer, Unterborn, the jury also found he reasonably believed that plaintiff posed a threat to officer safety when he used excessive force. The trial court asked the jury to answer special interrogatories to gain further jury insight into the facts so that the court could then resolve the qualified immunity question, which is a matter of law. The trial judge threw out the verdict on qualified immunity grounds: that no clearly established case law barred the use of significant force by an officer against an arrestee who is resisting arrest and is reasonably believed to pose a threat to officer safety.

The jury does not know this, and few clients really understand this, but the verdict is not the final words on the case. There will usually be an appeal or at least post-trial motions to vacate the verdict. And making matters even more complicated, the verdict may be undercut by the trial judge's finding that the verdict was not appropriate under qualified immunity, which says the only public defendants (like police officers) who can lose at trial are those who violate clearly established and particularized case law. 

The Court of Appeals (Wesley, Livingston and Wolford [D.J.]), affirms the trial court's order dismissing the verdict, and the verdict is gone for good. The problem for plaintiff is that while courts have said the police cannot use excessive force in arresting someone who is compliant or not resisting arrest, the law was not clear as to the facts in this case: where a suspect, after fleeing the police, was resisting the officers' attempts to place him in handcuffs and the officers reasonably though he posed a threat to officer safety. After all, the chase brought everyone into a dark wooded area and when the officers arrived there, plaintiff still had not been handcuffed, and his hands were hidden beneath his body. 

Plaintiff argued that qualified immunity cannot attach because he was only passively and not actively resisting arrest. But, the Court says, that does not save the verdict. "Passive resistance" is another fuzzy concept under the Fourth Amendment. The Court holds there was no clearly established law that an individual resisting arrest and under circumstances like those in this case was merely passively resisting.   

Supreme Court once again rejects heightened pleading in federal court

The Supreme Court does not often issue stand-alone rulings on pleading requirements in federal court, a curious track record since every lawsuit was once filed in the clerk's office and many are then met with a notion to dismiss for failure to state a claim. This ruling examines when state law pleading requirements apply in federal court. The answer is that they do not. The plaintiff in this case was not mandated to include a doctor's affidavit in support of his medial malpractice claim.

The case is Berk v. Choy, issued on January 20. This case was filed in Delaware, alleging medical malpractice. In Delaware, you have to include a medical affidavit to prove the claim is brought in good faith. New York has the same requirement, perhaps the product of the medical establishment's lobbying efforts to prevent us from filing meritless lawsuits. But since the defendant found a way to remove this case to federal court, the district judge dismissed the case for lack of a doctor's affidavit. Was this a legitimate ruling? 

The Supreme Court says there is no such affidavit requirement under the federal rules. The states can do what they want, but don't impose these rules in federal court. Under the Federal Rules of Civil Procedure, you only have to file "a short and plain statement of the clam showing that [the plaintiff] is entitled to relief." That's Rule 8(a)(2). And, under Rule 12(b)(6), in determining whether the plaintiff has asserted a. claim, you normally cannot review matters outside the pleadings (in the way you would on a motion for summary judgment, post-discovery). 

The unanimous Court notes that it has frequently rejected efforts by lower federal courts to require more information than required under Rule 8, such as heightened pleading requirements in civil rights cases and prisoner suits. Affidavits of merit, such as the one that plaintiff did not supply in this case, is among those documents outside the pleadings that are not required in federal court. 

Of course, recall the Iqbal ruling from 2009, when the Supreme Court said lawsuits have to plead a plausible claim under the federal rules. Rules 8 and 12 say nothing about plausibility, but the Court read that language into federal practice. I suppose that reasoning is different from the logic in this case. Plausibility pleading is a debate for another day. For now, if you are pleading state law claims and the case somehow winds up in a federal courtroom, this case is for you. 

2d Department holds operating room abuse is not an "adverse employment action"

The Appellate Division Second Department has issued its first decision interpreting the Supreme Court's ruling in Muldrow v. City of St. Louis, which two years ago relaxed the standard for "adverse actions" in employment discrimination cases. In this ruling, the Court finds that a doctor who physically abused and verbally assaulted a nurse during an operating room procedure did not subject the plaintiff to an adverse action under Section 1983.

The case is Chamale-Eustace v. SUNY Stony Brook, issued in January 21. I briefed and argued the appeal. In Muldrow, 601 U.S. 346 (2024), the Supreme Court rejected the rule that adverse actions must materially alter the terms and conditions of the plaintiff's employment. Instead, the Supreme Court said, the plaintiff need only prove the defendant subjected her to "some harm respecting an identifiable term or condition of employment." The harm need not be significant or even material, but the adverse action “must have left [the plaintiff] worse off.” Put another way, the plaintiff must show the employer's actions “brought about some ‘disadvantageous’ change in an employment term or condition.” This language draws from Muldrow.

In this case, the plaintiff alleged as follows:

On or about August 14, 2021, the plaintiff, a female surgical technologist employed by the defendants State University of New York at Stony Brook, Stony Brook University Hospital, and Stony Brook Medicine, assisted in a surgery performed by the defendant Matthew Berchuck, a surgeon employed by the Stony Brook defendants. 

The plaintiff alleged that during the surgery, Berchuck, inter alia, struck the plaintiff in the arm with a closed fist while holding a surgical instrument, threw surgical instruments and needles at her, and screamed and cursed at her. In addition, the plaintiff alleged that Berchuck belittled other female staff members who were assisting in the surgical procedure, but he did not treat male staff members in a similar manner. Further, the plaintiff alleged that the Stony Brook defendants were aware of and failed to address similar incidents of misconduct by Berchuck in the past. 

The Appellate Division rules that, as asserted in the complaint, these allegations do not establish an adverse employment action. In support of this holding, the Second Department cited inter alia Franco v. City of New York, 2025 WL 964014 (E.D.N.Y. 2025), which held that the plaintiff's allegations in that case -- repeated acts of sexual assault -- sounded more like a hostile work environment than disparate treatment and therefore Muldrow did not apply. The other citations in support of this holding predate Muldrow and applied the now-rejected "materiality" test.

Another holding is that the defendant cannot be sued as an "aider and abettor" under the New York Executive Law because a defendant cannot aid and abet his own discrimination. The law on this issue is all over the place in New York. In Tomka v. Seiler, Corp., 66 F.3d 1295 (2d Cir. 1995), the Second Circuit said a defendant may be held liable for aiding and abetting allegedly unlawful discrimination by the employer even where the defendant's actions are the predicate for the employer's vicarious liability. But the Appellate Division has gone back and forth on this issue. 

Despite ruling against Chamale-Eustace on this point, the Second Department cited Elco v. Aguiar, 226 A.D.3d 649, 651 (2d Dept. 2024), which held that defendant Freeborn "failed to establish that the plaintiff did not have a cause of action against him under the NYSHRL pursuant to an aiding and abetting theory of liability." The Court added, "contrary to Freeborn's contention, the plaintiff sufficiently alleged that Freeborn had aided, abetted, and incited this alleged harassment" as "the harassing conduct by her superiors was instigated by Freeborn sending her harassing text messages and contacting her superiors both about her personal relationships and to make false accusations regarding custody issues and her work performance. The plaintiff sufficiently alleged that, without Freeborn's conduct, there is no indication that her superiors would have subjected her to inferior terms of employment." 

Can Chamale-Eustace be reconciled with Aguiar? I suppose the argument might be that, in Aguiar, others were also harassing the plaintiff, and in Chamale-Eustace, the individual defendant was the sole harassing party, although she argued that management was responsible for this conduct. 

 

The rare Circuit Court ruling that takes the case out of mandatory arbitration

Plaintiffs will do what they have to do to avoid arbitration. While arbitration is a legal proceeding that will resolve the case one way or the other, plaintiffs (and their lawyers) will tell you until they are blue in the face that the courthouse is far more preferable, as a sympathetic jury is a better fact-finder than a stuffy arbitrator, the damages in court will often be higher than in arbitration, court proceedings are public (unlike arbitration) and usually allow for more discovery, arbitrators are not required to always follow the law, no appeals are available from arbitration, and the employer usually pays the arbitrator for their time, which never happens in court. Hence, cases like this.

The case is Silva v. Schmidt Baking Distribution, issued on December 22. Plaintiffs delivered baked goods on defendant's behalf in Connecticut. But defendant then asked plaintiffs to incorporate their business and sign distribution agreements that contained an arbitration clause stating that any disputes, such as wage-and-hour matters, be resolved in arbitration. The clause also prohibits class action lawsuits. 

Under the Federal Arbitration Act, "contracts of employment" for transportation workers are not subject to arbitration. This is among the few areas that are statutorily exempt from mandatory arbitration. The Supreme Court has held that contracts creating independent contractor relationships fall within the "transportation exception." The Second Circuit (Chin, Nardini and Kahn) holds that the agreement in this case is a contract of employment under the FAA even though they were signed by the two plaintiffs in their capacities as presidents of their respective corporations, rather than in their individual capacities. The Court of Appeals finds that even contracts between two business entities may constitute contracts for employment. 

We have contracts for employment in this case because "the actual work performed by workers under business-to-business contracts may be functionally indistinguishable from the work done in employment relationships." Moreover, the contracts in this case hold the individual plaintiffs personally responsible for the performance of their work, and the plaintiffs had been W-2 employees when defendant told them to create corporations to continue their work as delivery drivers. And once that happened, the work that plaintiffs performed was no different from what they had done before they signed the contracts. Simply put, we are dealing with contracts of employment under the FAA. That brings this case out of arbitration under the transportation exception. This case will be decided in court.

A side note for appellate practitioners. Normally, court orders that the parties proceed to arbitration are not appealable by the plaintiffs unless they can fit their case within the narrow exception to the rule that interlocutory appeals are disfavored in the federal system. This case falls within that exception because the case involves a legal issue with substantial grounds for differences of opinion, and the appeal will materially advance the ultimate termination of the litigation and spare the parties of wasting time through a full arbitration that might have been improper in the first instance. There is no point in waiting for the outcome of that arbitration if the federal appeals court can resolve this issue right now., 

When can the police enter the house without a warrant?

The Fourth Amendment requires the police to get a warrant if they want to search your home or anyplace else within your control. But the Supreme Court has long interpreted the Fourth Amendment to permit warrantless searches in emergency situations. We can talk about this broad exception to the Constitution's plain language and what it means for a constitutional democracy, but this exception is so widely accepted that we don't really debate it any longer, and the issue is now how the warrantless search applies in particular cases. Like this one, in which the Supreme Court finds the search was legal.

The case is Case v. Montana, issued on January 14, one of the first full rulings of the 2025-2026 Term. The police entered the house after getting an alarming phone call from Case's ex-girlfriend, JH, indicating that an erratic Case was going to kill himself. While on the phone with Case, JH heard the gun go off and then dead air, suggesting that Case was dead. JH called the police. 

The police showed up at Case's house; they knew he had mental health issues and alcohol problems and once tried suicide-by-cop. They tried to communicate with Case from outside the house, to no avail. So they entered the house without a warrant, deeming this an emergency. They found Case in the closet, and a shootout followed, injuring Case, who survived. He was charged with assaulting a police officer, but he moved to suppress all evidence obtained from the warrantless search, claiming it violated the Fourth Amendment.

The question is here is the standard of review in determining whether warrantless home searches violate the Fourth Amendment. Some courts, including the Second Circuit, hold that the police need probable cause to enter for purposes of rendering emergency services. Other courts hold the police to a reasonable suspicion standard, which is less burdensome than the probable cause test. 

The Court unanimously holds that the real standard is reasonable suspicion. The probable cause test only applies to criminal investigations, not cases like this, says Justice Kagan. Under the reasonable suspicion test, the search was legal. The officers had an objectively reasonable basis for believing that they had to enter the house to prevent serious harm, i.e., Case's erratic behavior that might result in someone's death or serious injury, including himself. 

Gun dealer has standing to challenge City's "brick and mortar" requirement

This gun rights case involves a New York City law that makes it illegal to purchase more than one gun every 90 days. Another City law under review requires applicants for firearms dealer licenses to maintain a place of business in New York City, what we call a "brick and mortar" location. One challenge succeeds and the other one fails.

The case is Knight v. City of New York, issued on January 13. Plaintiff is a gun dealer in New York City. He challenges the 90-day gun requirement under the Second Amendment, but the Second Circuit says he lacks standing to challenge the law. Standing is a constitutional doctrine that requires proof that you have a personal stake in the outcome of the case; a generalized grievance is not enough. This ensures that the courts resolve actual "cases and controversies," and not hypothetical disputes. You'll find "cases and controversies" in the Constitution itself.

Plaintiff argues that the 90-day rule impacts him personally because he will not sell guns to people who need to obtain a new one that frequently. As a gun dealer, he stands to lose money under this rule. But, the Court of Appeals (Chin, Sullivan and Kahn) says, plaintiff has not identified any New York City customer would buy more than one gun every 90 days. He therefore has no standing to bring this part of the case, as his legal challenge to this rule is academic. Someone else will have to bring such a lawsuit, maybe a gun owner who needs to buy a firearm more frequently than once every 90 days. 

The place-of-business requirement is a different story. Since plaintiff wants to run a commercial gun dealing business in New York City and has taken active steps to make that happen, and because the commercial availability of firearms is related to the Second Amendment, under the City law, he cannot obtain a dealer's license without facing possible criminal prosecution. All of this confers standing upon plaintiff's Second Amendment challenge to the City's gun-control law. The case will return to the trial court to address his legal challenge on the merits: whether the brick-and-mortar requirement is consistent with the Constitutional and the complex legal standards guiding Second Amendment litigation in light of the Supreme Court's Bruen ruling from a few years ago, which asks whether the gun-control law is consistent with the original understanding of the Second Amendment. 

County inmate has a substantive due process claim for arbitrary financial penalty

This pro-se inmate in an upstate county jail wins his appeal in the Second Circuit, which finds that certain fines levied against him may violate the Constitution.

The case is Bass v. Swartwood, a summary order issued on December 22. He sues for substantive due process, a catch-all constitutional claim that allows people to sue under the Fourteenth Amendment when the government engages in uncivilized or outrageous behavior without any rational justification. These cases are hard to win, and since the plain language of the Constitutional does not actually make reference to "substantive due process," you can imagine a day when the Supreme Court does away with these claims altogether. 

But these claims are still with us, and Bass is able to proceed with his case. Bass alleges that the county jail imposed a disciplinary surcharge against him as a form of impermissible punishment. As a pretrial detainee who has not yet been convicted of anything, Bass is able to argue that the Fourteenth Amendment makes it illegal to impose a disciplinary surcharge for reasons unrelated to institutional security, damage to jail property, or any other legitimate purpose. Rather, he claims among other things, the jail imposed a fine against him for telling his fiancee that he loved her. If that is the case, the surcharge was baseless and plaintiff has a claim. The Court of Appeals (Perez and Merriam) reverses the Rule 12(b)(6) dismissal.

The case returns to the Northern District of New York to reconsider plaintiff's claim and to allow the county attorney's office to defend itself. This case may not yield a high damages award, but remember that constitutional claims are not always lucrative, and it's the principle that matters, even if the plaintiff finds himself in the county lockup. 

Pro-choice statute does not apply to medical fraud case against GEICO

After the public learned that the Supreme Court was about to overturn Roe v. Wade, the seminal abortion rights decision, New York enacted a law that makes it illegal to burden the rights protected by New York law. The context was reproductive rights. This lawsuit implicates that statute, but the plaintiff loses.

The case is Clarke v. GEICO, a summary order issued on January 5. In early 2022, someone leaked the ruling in Dobbs v. Jackson Women's Health Organization, which said the Constitution does not protect the right to an abortion. Dobbs overruled Roe. New York responded by passing the Freedom from Interference with Reproductive and Endocrine Health Advocacy and Travel Exercise Act, or the FIRE HATE Act. The legislation was directed at the "risk of civil actions and criminal actions brought in courts outside the state of New York seeking to punish or impose civil liability on individuals traveling to New York" to access an abortion.

In this case, GEICO, the insurance company, brought two civil RICO actions against plaintiff, a doctor, in the Eastern District of New York, alleging that he worked with a medical equipment company to fraudulently bill for unnecessary medical equipment in no-fault insurance claims. So the RICO action involved alleged fraud in medical care. In defending the case GEICO claimed the STOP HATE Act involves "medical care" relating to reproductive or gender-affirming medical care, not unrelated medical treatment.

This is a statutory interpretation case. After reviewing this relatively recent statute, the Court of Appeals (Menashi, Robinson and Perez) holds that plaintiff cannot proceed with this case because the GEICO lawsuits "did not seek to impose liability on Clarke for the provision of medical care -- of any kind -- and therefore the lawsuits did not 'result' from the provision of medical care." This case involves GEICO's lawsuit against plaintiff over alleged false billing for payment rather than his provision for medical care. The Court reasons, "The provision of medical care was not even a but-for cause of the litigation: Clarke could have submitted false bills before he provided the related medical care—and he could have submitted false bills without providing any medical care at all. The actual cause of the litigation was his purported false billing practices rather than his provision of medical care."

Discrimination claim highlights distinction between federal law and NYC Human Rights Law

You don't see too many cases where lawyers are suing their former employers for discrimination. In this case, a lawyer sues Con Edison, claiming she was fired based on age and gender. She loses the case under federal law, but the case is reinstated under the New York City Human Rights Law so that the district court can take another look at her claim under the proper legal framework. This case highlights the differences between federal law and the New York City Human Rights Law.

The case is Goldzweig v. Con Edison, a summary order issued on January 5. The analysis on the federal claim resembles what we often see in these cases: plaintiff argues that management lied about her alleged poor job performance as justification for her termination. But the court will not second-guess negative performance reviews without some affirmative evidence of discrimination. The Court (Park, Perez and Nathan) writes, "The consistency of the viewpoint expressed about Goldzweig's performance supports Con Edison's proffered nondiscriminatory reason for terminating her." We might have a different result if the positive performance reviews turned sour for no objective reason, but that does not seem to be the case here. While plaintiff challenges the credibility of defendant's witnesses, that does not force a trial; the Court holds that "Broad, conclusory attacks on the credibility of a witness will not, by themselves, present questions of material fact." Nor does the Court find contradictions or implausibilities in defendant's justification for firing plaintiff.

On the retaliation claim, same result. Plaintiff did complain about discrimination, and she was terminated afterwards, but that sequence will get you a trial on the retaliation claim without evidence that the justification for plaintiff's termination was knowingly false. The Court says that Con Edison's "sustained, documented criticism of Goldzweig's performance is sufficient to meet its burden ... and Goldzweig has failed to demonstrate that Con Edison's proffered explanation is pretextual. "Although Goldzweig complained about how [supervisor] D'Angelo treated her, documentation of her performance deficiencies long predates these complaints." 

The City law claim is different, as the NYC Human Rights Law carries a more lenient standard for plaintiffs; the City Council did not want the stringent tests under federal law to guide City law claims. On the retaliation claim, the Court notes that the City law "takes a broader approach than Title VII and the ADEA as to what constitutes a protected activity for the purpose of a retaliation claim." While the district court said that one of plaintiff's four complaints qualified as protected activity under federal law, it did not consider whether these complaints qualified under the City law. And, while federal law applies a strict "but for" causation test in retaliation cases, that is not the case under the City law, which recognizes the more lenient "motivating factor" test. Moreover, under the City law, "a plaintiff need not prove that the reason proffered by the employer for the challenged action was actually false or entirely irrelevant to the decision to take adverse action." The authority for this is Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 127 (1st Dept. 2012). The Court adds, 

it is unclear whether the district court independently analyzed the weight accorded to different forms of evidence under New York law.  See, e.g., La Marca-Pagano v. Dr. Steven Phillips, P.C., 129 A.D.3d 918, 921 (2d Dep’t 2015) (concluding that “close temporal proximity between the plaintiff’s protected activity and the adverse employment action is sufficient to demonstrate the necessary causal nexus” for a retaliation claim); Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18, 25 (1st Dep’t 2014) (same); Calhoun v. Cnty. of Herkimer, 114 A.D.3d 1304, 1307 (4th Dep’t 2014) (same).