You have a First Amendment right to videotape the outside of a police building

The Court of Appeals holds for the first time that you have a First Amendment right to film the exterior of the local police station. But the plaintiff, who was arrested after he resisted police authority when they approached him about the making the video, cannot sue the police on qualified immunity grounds.

The case is Massimino v. Benoit, issued on August 17. Plaintiff is a First Amendment activist who was detained and arrested while he recorded the exterior of the Waterbury Police Department building. While standing on a public sidewalk, plaintiff was not filming anything in particular, such as someone being arrested or police activity taking place outside the building. He told the police he was a journalist getting content for a story, and the recording lasted 6.5 minutes. According to the court ruling, plaintiff is a "First Amendment auditing hobbyist." The police wondered if plaintiff was planning an attack on the building.

This may surprise you, but the Second Circuit had not yet squarely held that the First Amendment protects the right to make such a video recording. Most of the other Courts of Appeal have held the First Amendment does protect such activity. The Second Circuit adopts their reasoning on three grounds: (1) the First Amendment protects the creation of speech, not just the speech itself, (2) speech on matters of public concern and governmental affairs "lies at the heartland of the First Amendment's protections," and (3) "the First Amendment protects the public's right to gather and access information about the government." As the majority (Perez and Merriam) holds, "The right to record law enforcement activity in public fits squarely within these three principles." The Court further holds these principles apply when you are filming the outside of a police station without gaining access to confidential areas, instead recording what is plainly visible to anyone else.

This holding -- while helpful for other First Amendment plaintiffs -- provides no relief to plaintiff, because this holding was not in place the day he was arrested. That means the law was not clearly-established at the time of his arrest in 2018. For the law to be clearly established, you need on-point rulings from the Supreme Court or the Second Circuit, or at least a robust consensus from other courts of appeal. We don't have that here. The Court of Appeals reasons: 

At the time of Massimino’s arrest, a robust consensus of our sister circuits had recognized a First Amendment right to record law enforcement activity in public, including one that considered the right to record the publicly visible areas of a police station. Despite our holding here that the First Amendment applies with equal force to that specific conduct, we do not think that conclusion would have been obvious to every reasonable officer in this circuit in 2018. Although Massimino recorded some areas where the public could not enter, what matters for purposes of the right at issue is that those areas were in public view. A reasonable officer in Benoit and Laone’s shoes may not have appreciated that distinction at the time of the incident, particularly in light of sensible safety concerns.

Qualified immunity is a theoretical concept: were the police on constructive notice that they were violating clearly-established rights? I doubt most police officers are tracking federal case law, but their supervisors might be, or their attoney-advisors may give periodic training on the state of the law. If the case law was not crystal-clear at the time of the arrest, then you can't sue the police for damages.

Judge Raggi agrees that qualified immunity applies in this case, but she disagrees with the majority's decision to first hold that the public has a clear First Amendment right to film the outside of a police station. Federal courts have the option to first clarify the constitutional right even if they go on to hold the law was not clearly-established at the time of the incident. They do not always exercise the first option, but the majority did so in this case. That means the next individual who does what the plaintiff did in this case -- so long as they engaged in that activity following release of this ruling -- cannot suffer an arrest.  

 

Church Autonomy doctrine bars priest from bringing defamation claim against former employer

The Second Circuit has applied the Church Autonomy doctrine for the first time in holding a jury cannot resolve whether plaintiff, a priest, has a legitimate defamation claim against his former employer. This is a significant decision because the Second Circuit holds the First Amendment protects not only the church's decision to select, supervise, and remove its ministers, but also the communications that are inseparable from those decisions.

The case is Belya v. Kapral, issued on August 18. Plaintiff was priest in the Russian Orthodox Church Outside of Russia (ROCOR). He says church leaders told him in 2018 that he had been elected a bishop. He also says he received letters from church officials confirming the election and seeking approval from the Moscow Patriarchate. But ROCOR says the election never happened. After the Moscow Patriarchate announced in August 2019 that it had approved Belya's election, ROCOR officials investigated. They concluded that Belya had gotten letters to Moscow that purported to come from church leaders. The officials accused Belya of forging them. A September 2019 letter to ROCOR's leadership said that the purported election "never took place" and questioned the authenticity of the documents. Belya was subsequently suspended and, in February 2020, defrocked.

Belya sued for defamation. The district court granted summary judgment to ROCOR. In affirming dismissal, the Second Circuit (Lynch, Lohier and Menashi) held the First Amendment protects a church's independence in matters of faith, doctrine, and closely related internal governance. While churches can still be sued when the court can resolve a dispute using ordinary, neutral principles of law, in this case, deciding whether ROCOR officials defamed Belya would require a jury to determine how ROCOR selects its bishops, what its internal procedures require, whether those procedures were followed, and whether the officials reasonably believed that Belya had never been elected.

The Church Autonomy doctrine is related to the Ministerial Exception, which bars courts from second-guessing hiring decisions by religious entities if the plaintiff was a "minister" as defined in Supreme Court case law; actual ministers are not the only ones prohibited from bringing these cases. Anyone who takes on some religious role in the workplace, like a teacher in a Catholic school, runs up against the Ministerial Exception. 

As defamation under New York law requires proof that the defendant acted at least negligently, the jury would have to decide whether ROCOR officials acted reasonably in concluding that the letters were not authentic. According to the Second Circuit, the jury would have to decide what a reasonable ROCOR clergyman would have believed, given ROCOR's rules and practices, about the events surrounding Belya's purported election. That would require a secular court to pass judgment on the church's internal governance.

The Second Circuit emphasized that this does not mean churches have immunity from defamation claims. A church can be sued when a dispute can be resolved by applying ordinary secular law without requiring the court to second-guess religious doctrine or internal governance. However, when a defamation claim arises out of a church's investigation and discipline of a minister, and determining whether the allegedly defamatory statements are true or reasonably made requires a jury to decide how the church governs itself, the First Amendment bars that inquiry.

Belya's status as a priest made the connection obvious because ROCOR was investigating his conduct, communicating with its own leadership about that investigation, and ultimately removing him from the clergy.

Court of Appeals strikes down SOX whistleblowing claim

The Court of Appeals has rejected a Sarbanes-Oxley whistleblower retaliation case, holding that the plaintiff did not bring his claim within the 180-day deadline under the statute. The Court also issues a separate holding that the statute of limitations begins to run when plaintiff has reason to know that management's continued refusal to rehire the terminated plaintiff following a layoff means he will never be rehired again.

The case is Mehrotra v. U.S. Department of Labor, issued on August 11, nearly two years after oral argument. This is a petition for review following an adverse ruling from the U.S. Department of Labor. Plaintiff, a project manager in GE’s Power division, filed two internal complaints raising compliance concerns in October 2018. Several months later, GE told him he would be laid off in June 2019 due to a reduction-in-force. Post-layoff, defendant allowed him to apply for other positions within the company, but he was rejected for dozens of them, more than 50 positions. He claimed these rejections were also retaliatory. Plaintiff filed his SOX complaint with OSHA on December 17, 2020, alleging that GE had blacklisted him, terminated him, denied him benefits, failed to rehire and promote him, all in retaliation for his internal complaints. 

Under the 180-deadline under SOX, plaintiff's claim is untimely. Defendant told plaintiff about the layoff on April 29, 2019. Plaintiff had until October 2019 to file his SOX complaint, but he did not do so until December 2020. The claim was untimely.

The real story here is plaintiff's argument that defendant's refusal to hire him post-layoff was also retaliatory. But the Court of Appeals (Sullivan, Park and Robinson [dissenting]) holds that claim is also untimely. Plaintiff argued that each time GE rejected one of his applications, a new retaliatory act occurred. Some of those applications were rejected after June 20, 2020, which would put them within 180 days of his December 17 OSHA filing. But the majority holds that the alleged “blacklisting” was the underlying retaliatory action. By March 16, 2020, Mehrotra had applied unsuccessfully for roughly 50 positions and had actually complained to GE that he was being blacklisted. At that point, the court said, he knew or should have known that GE was refusing to rehire him. This means the later unsuccessful applications could not revive the expired claims. 

Over Judge Robinson's dissent, the majority writes, "where the alleged adverse action is a blacklisting or companywide refusal to rehire, an employee is unlikely to receive definitive and unequivocal notice of the adverse action taken against him. In such cases, the claim accrues when it 'was apparent or should have been apparent that a complainant’s former employer was refusing to rehire [him].'” In other words, it should have been clear to the plaintiff that GE was not going to rehire him, that plaintiff's realization triggered the statute of limitations. The Court adds, "Based on the record before them, the [Administrative Law Judge] and [Administrative Review Board] properly concluded that Mehrotra knew or should have known of GE’s refusal to rehire him by March 16, 2020 – the date on which he filed an internal complaint with GE after unsuccessfully applying to fifty open positions." 

In dissent, Judge Robinson writes, "A cause of action for retaliation requires an adverse action and accrues when the employee learns of it, and successive refusals to rehire are discrete events." In other words, "An unexpressed intent not to hire is not an adverse action." Judge Robinson adds,

A retaliatory, uncommunicated, and unexercised intent not to rehire someone is a proverbial tree falling in the woods: nobody hears it. Evidence of such an intent may establish the retaliatory motive for a refusal to hire, but where that intent has not been communicated to the employee, some action, such as passing over the employee in response to an actual application for a position, is an essential element of a cause of action for retaliation under SOX. Until the uncommunicated and unexercised intent leads to an actual adverse action, no cause of action arises under SOX, and no limitations clock starts ticking.

Plaintiff argued that the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan (2006) saves his claim. In Morgan, the Court held that each discrete discriminatory act starts its own limitations clock. Morgan holds that refusal to hire is a discrete act. This is a decent argument. But the majority instead relies on another Supreme Court case, Delaware State College v. Ricks (1981), reasoning that a later consequence of an earlier discriminatory decision doesn't restart the limitations period. The later applications were merely consequences of the earlier blacklisting. As for the continuing violation argument under Morgan, that doctrine generally does not apply to a series of discrete employment actions. Otherwise, the court reasoned, an employee could keep a stale claim alive simply by repeatedly applying for jobs and getting rejected.

Plaintiff may challenge her termination under Due Process Clause

This appeal raises a complex issue relating to res judicata. Lawyers know about res judicata; the general public not so much. But this doctrine -- which prevents you from bringing the same lawsuit in different courts -- is important when it happens to your case. 

The case is Rosenthal v. Roosevelt Island Operation Corp., issued on August 10. This dispute has been going on for six years. Plaintiff was the President and CEO of the Roosevelt Island Operating Corporation, which governs Roosevelt Island. When she was fired, defendants claimed she had made racially and sexually offensive remarks, an allegation that plaintiff denied, prompting her to file an Article 78 petition. In those expedited proceedings, the parties are usually denied discovery and the state court normally resolves the case on the papers, including affidavits and exhibits, determining whether the challenged governmental action was arbitrary and irrational. The judge dismissed the Article 78 petition, holding that the "determination to terminate petitioner clearly was not irrational" given the comments that were cited as justification for her termination. The state court said the proper forum to challenge the factual basis for plaintiff's termination is a plenary action in state court, where you can take depositions and pursue other discovery.

Plaintiff thus filed suit in state court, which also ruled against her on the motion to dismiss relating to her discrimination claims, finding the Article 78 dismissal was a final judgment on the merits. But State Supreme Court only dismissed plaintiff's Section 1983 claims without prejudice, stating the claims should have been filed in the Court of Claims, which hears cases against the State of New York. Or, Supreme Court said, plaintiff could refile these claims against the defendants in their individual capacities, which is what she did in proceeding to federal court on a liberty interest claim arising from the Due Process Clause of the Fourteenth Amendment. 

But the federal court dismissed the Section 1983 claim on res judicata grounds. Under res judicata, you cannot relitigate the same unsuccessful claim in a different court, even if that claim was not asserted in the first lawsuit, so long as it relates to the claims that were actually dismissed. The reason the Court of Appeals reinstates this case is that the state court only dismissed plaintiff's Section 1983 claim without prejudice, which means you can file the same claim again in a different court. Dismissals without prejudice are not "a final determination on the merits." 

This is a new issue for the Court of Appeals (Sack, Perez and Preska [D.J.]), which believes the state's highest court would endorse this reasoning on what is traditionally a state law issue. The Second Circuit states:

We recognize that our own precedent has not squarely addressed such a scenario. In our view, however, the New York Court of Appeals has resolved precisely this conundrum by adopting the relevant Restatement exception permitting a plaintiff to refile specific claims—notwithstanding a final judgment on the merits as to other claims arising from the same transaction—where “[t]he court in the first action has expressly reserved the plaintiff’s right to maintain the second action.”  

. . .  

In other words, while a final judgment on the merits normally extinguishes all other claims arising from the same transaction, a concurrent dismissal without prejudice for some claims preserves a plaintiff’s ability to refile those specific claims in a second action. That is precisely what the Plenary Judgment did by dismissing Rosenthal’s § 1983 claim without prejudice and inviting Rosenthal to refile that specific claim in a different court. 

Nor does the unsuccessful Article 78 case present a res judicata problem. That dismissal only said that plaintiff could not prove her termination was arbitrary and capricious. But the Article 78 court did say the right proceeding for plaintiff was a plenary action with discovery in a different court. The Second Circuit states, "Even if the Article 78 proceeding were considered to have impliedly adjudicated Rosenthal’s discrimination claims, as the New York State Supreme Court later concluded and the Appellate Division since agreed, it is settled law that a 'judgment in a ‘pure’ Article 78 proceeding,' such as this one, 'does not preclude, under the doctrine of res judicata, a later section 1983 damages claim based on the same set of facts.'”

Bottom line: the plaintiff's Section 1983 due process claim may proceed in federal court even though her related claims were twice dismissed in state court. 

Bivens claim survives appellate review

The greatest loophole in constitutional law is that there is no statute that allows you to sue federal officials for a constitutional violation. If you want to sue state and local officials, you can invoke 42 U.S.C. 1983, but there is no Section 1983 claim against federal officials, and the Supreme Court has recognized such claims against federal defendants on three occasions and has repeatedly said it will not recognize new claims. But this plaintiff does have a claim against federal prison defendants because her case is close enough to one of the cases recognized by the Supreme Court as legitimate.

The case is Cicchiello v. Warden, Danbury Correctional Facility, a summary order issued on August 11. Plaintiff is an inmate a federal correctional institution. In her Eighth Amendment claim, she asserts that, as a 73 year-old inmate with a known heart condition, the 100 degree heat inside the jail poses a risk to her health. The case was dismissed because it does not fall within the three kinds of cases that the Supreme Court recognizes as legitimate against federal defendants.

In 1971, the Supreme Court ruled in the Bivens case that, even without a federal counterpart to Section 1983, the Constitutional implies a constitutional claim for civil rights victims suing federal defendants if there are no other remedies available to the plaintiff, such as an in-house administrative remedy, even if the administrative remedy will not get you the damages that a federal lawsuit would, and even if the administrative remedy does not allow for discovery and other procedural protections afforded to federal litigants. One of these days -- and I have been predicting this for years -- the Supreme Court is going to do away with Bivens claims altogether and leave it to Congress to enact a Section 1983 statute for claims against federal defendants. But until that happens, some Bivens claims will survive dismissal. This is one of them.

The Second Circuit (Menashi, Merriam and Cronan [D.J.]) says that plaintiff's case resembles Carlson v. Green, 446 U.S. 14 (1980, where the federal inmate asserted a constitutional claim that the jail was deliberately indifferent to serious medical needs. If plaintiff is able to amend her lawsuit on remand to assert that the jail knew she had a serious medical condition, then this lawsuit will be among the rare Bivens cases that will survive dismissal.  

To give you a sense how hard it is to bring a Bivens claim these days, plaintiff also claims that defendants subjected her to an unlawful strip search. There is no such claim in the Supreme Court arsenal that resembles this one. While one of the three positive Bivens claims in the Supreme Court said a plaintiff could sue federal defendants for a home search in violation of the Fourth Amendment, that case is not this one, as this one took place inside a federal prison, and everyone knows that jail cases are different than all other civil rights cases because courts defer to the expertise of prison officials. The strip search claim is dismissed for good. 

State and local law makes it illegal to videotape inside police station houses

The Second Circuit last year asked the New York Court of Appeals to weigh in on whether you have a right to record video inside the publicly accessible lobbies of police station houses. The New York Court of Appeals answered that question in the negative, and that ruling now allows the Second Circuit to reject a claim brought by public interest organizations.

The case is Reyes v. City of New York, issued on August 6. Videotaping and recording police activity is one way that civil rights organizations try to keep tabs on law enforcement. But, while everyone has video recording equipment in their pocket these days, that does not mean the law is there for them. It is not.

As I summarized this case back when it first reached the Second Circuit, "The plaintiff in this case sued the City of New York, challenging its policy against video-recording in police facilities, including station house lobbies. He posts his interactions with the police on YouTube, but these videos have gotten him arrested. He claims these arrests violate the First Amendment." Hence plaintiff's challenge to the rules prohibiting such videotaping.

The district court granted plaintiffs a preliminary injunction under state and local law, determining plaintiffs were likely to win their challenge to a NYPD policy prohibiting such video recording. Since the case raised an esoteric issue under state law, the Second Circuit asked the New York Court of Appeals to issue a ruling. The adverse ruling from New York's highest court requires the Second Circuit (Raggi, Kearse and Kahn) to vacate the preliminary injunction. 

Door Dash wins free speech case against New York City

New York City enacted a law requiring that third-party delivery platforms, like Door Dash, share customer information with the restaurants whose food they are delivering. Door Dash challenged this requirement as a First Amendment violation, under the coerced speech principle. Door Dash wins the case.

The case is Door Dash, Inc. v. City of New York, issued on August 5. Door Dash gets all the customer information when someone requests a food delivery. The restaurant only gets the customer's first name, last initial, and the order contents, i.e., what food the customer ordered. New York City passed a law in 2021 requiring that Door Dash share the customer information with the restaurants because customer data is "one of the most important tools restaurants can use to develop marketing strategies and customer relations." While Door Dash got all the customer details, the restaurants were unable to communicate directly with those customers as part of their business strategy. At least that was the logic behind the law, which amounted to a gift to the restaurant industry.

The First Amendment does not just protect street protesters and artists. It also protects companies and bars coerced speech. This case involves coerced speech, because the NYC law forced Door Dash to share certain business information with the restaurants. 

Under the case law, a state "may compel a commercial speaker to disclose (1) purely factual and uncontroversial information (2) about the terms under which his services will be available, so long as the disclosure is (3) reasonably related to the State's interest and (4) not unjustified or unduly burdensome." Not the clearest guidelines, but in sum, it means the government can defend such coerced speech in a commercial context only if the speech is "about the goods or services the speaker may offer." In practice, it means that laws requiring restaurants to disclose calorie counts and employers to issue anti-discrimination notices are legal. The Court of Appeals (Wesley, Carney and Park) further reasons:

The disclosure here—customers’ personal information—is not information “about” Marketplace. Information about Marketplace might, for instance, describe the commissions restaurants pay, how the Platforms rank and display restaurants, or the grounds on which they may deactivate a restaurant’s account. See, e.g., Uber Techs., Inc. v. City of Seattle, 168 F.4th 1202, 1216–17 (9th Cir. 2026) (holding, in the alternative, that an ordinance requiring third-party platforms to inform their couriers of the grounds for account deactivation satisfied Zauderer because the notice “concerns only the service provided”). The Customer Data Law, by contrast, compels the disclosure of each customer’s name, number, email address, delivery address, and order contents. § 20-563.7. Those are facts about third parties who use Marketplace, not about Marketplace itself.

Good news, bad news for police misconduct plaintiff

The Second Circuit has ordered a new trial in a malicious prosecution case upon finding the district court improperly excluded recordings that could have undermined the credibility of the plaintiff and his key witness. The court also rejected the police officers’ argument that they were entitled to judgment as a matter of law on the plaintiff’s unlawful-search claim

The case is McClarin v. City of New York, issued on July 13, more than a year following oral argument, demonstrating the complexity of this case. The case arose from a 2015 police investigation in Brooklyn, where officers received information that plaintiff was holding Samantha Miranda captive and abusing her. The officers entered plaintiff's apartment without a warrant, believing they were responding to an emergency. But Plaintiff and Miranda claimed the officers forced their way into the apartment and  pressured Miranda into implicating plaintiff. The charges against plaintiff were dismissed, and this lawsuit followed. Following trial, the jury awarded plaintiff $115,000 in compensatory damages and $775,000 in punitive damages.

The officers seek judgment as a matter of law, citing Rule 50, arguing the jury had no factual basis to rule for plaintiff because they responded to an exigent circumstances that dispensed with the need for a warrant. But the Court of Appeals (Kearse, Raggi and Kahn) affirms the verdict and says the jury had a basis to find for plaintiff because it could have found the officers did not treat the situation as an emergency. The officers spent considerable time dealing with unrelated suspects before going to plaintiff's apartment, and some officers acknowledged that they did not regard the situation as an "emergency" or "urgent." That's the good news for plaintiff. 

The bad news for plaintiff is the verdict is gone and there will be a new trial over an evidentiary ruling that the Second Circuit holds was an abuse of discretion. There were recordings of conversations between plaintiff and Miranda; the officers said these records could have impeached the testimony of plaintiff and Miranda because they included statements about Miranda's expected testimony and the possibility that she would receive money in exchange for her testimony. While the trial court excluded these recordings because they were not disclosed prior to trial, Rule 26 does not require pretrial disclosure of evidence that will be used solely for impeachment. What also helps the police on appeal is that the recordings gave defense counsel ammunition for attacking plaintiff's credibility, as plaintiff denied making certain statements to Miranda, who in turn gave testimony that placed an innocent gloss on their conversations. Had the jury heard the recordings, they might have resolved credibility issues against plaintiff, resulting in a verdict for defendants. 

We have an important ruling on malicious prosecution claims. The officers said plaintiff cannot win this claim because they had probable cause on other charges against him. That argument works in false arrest claims, but not malicious prosecution claims, the Court of Appeals holds. Probable cause for one offense does not necessarily defeat a malicious-prosecution claim involving another offense. In Posr v. Doherty, 944 F.2d 91 (2d Cir. 1991), the Court of Appeals held that "the existence of probable cause to support one charge does not necessarily preclude a claim of malicious prosecution on another charge." In Janetka v. Dabe, 892 F.2d 187 (2d Cir. 1989), the Court held that where the defendant was convicted of disorderly conduct but acquitted of resisting arrest, the unfavorable termination on the disorderly-conduct charge did not preclude a finding of liability for malicious prosecution of the resisting-arrest charge.

Excessive force claim returns to the district court for further review

In this case, the plaintiff found himself back in jail after violating parole. While in jail, he claims, CO's beat him up, Hence this lawsuit asserting excessive force. The trial court denied defendants' motion for summary judgment, but the officers appealed to the Second Circuit, which teaches us again what happens when your civil rights lawsuit raises an esoteric issue that the courts have not definitively resolved in prior cases.

The case is Farrington v. Poole, issued on August 6. Excessive force claims come in two forms. If you are convicted of a crime and incarcerated at state prison, then it's an Eighth Amendment case, where you have to show the officer inflicted unnecessary and wanton pain that would amount to cruel and unusual punishment. To win such a claim, the plaintiff must show the officer subjectively and objectively intended to inflict such harm. But if you are a pretrial detainee, not yet convicted of anything, your excessive force claim is governed by the Fourteenth Amendment, which carries a more lenient standard for the plaintiff, who only has to show the force was purposely or knowingly employed in an objectively unreasonable manner. 

Here's the problem: plaintiff was once convicted of a crime, but he was eventually released from jail on parole. But he violated parole, pleading guilty to that violation at the parole hearing. So he returned to jail, but not state prison. He instead went to the Albany County Jail, where he claims the officers subjected him to excessive force. Parole violators who bring these claims are in a constitutional gray area. Some courts say their claims are governed under the more lenient Fourteenth Amendment. Other courts say these are really Eighth Amendment cases because they have already been convicted of a crime in the past. 

The Second Circuit (Cabranes, Livingston and Menashi) holds that, since plaintiff pled guilty to a parole violation, this is an Eighth Amendment case, not a Fourteenth Amendment case. In resolving the summary judgment motion in plaintiff's favor, the trial court said this was really a Fourteenth Amendment case, as it was not brought to the trial court's attention that plaintiff actually pled guilty to the parole violation. Since plaintiff's case must be resolved under the Eighth Amendment, the case returns to the district court to review the motion for summary judgment again under the more defendant-friendly legal standard. 

The Court of Appeals does not definitively decide whether inmates accused of violating parole who also claim excessive force are Eighth or Fourteenth Amendment plaintiffs. That issue will be decided in some future case. The Court does not have to resolve that issue here because plaintiff's case is clearly an Eighth Amendment case, as he pled guilty to parole violation. In concurrence, Judge Menashi surveys the district court rulings in this area and says that even those accused of violating parole, even if they are not yet convicted of violating parole, are Eighth Amendment plaintiffs, as they have already been convicted of some crime in the past, which is why they ultimately got parole to start with. 

2d Circuit upholds 70% reduction in attorneys' fees in successful civil rights case

A second round of litigation follows any jury verdict in a civil rights case. The plaintiff will file a motion to recover attorneys' fees from the losing party. This motion practice is not supposed to become a second major litigation, but sometimes it does, as the parties fight over the prevailing attorney's hourly rate and whether they spent too much time on the case. That happened in this case. 

The case is McDevitt v. County of Suffolk, a summary order issued on August 5. This police misconduct case yielded a jury verdict in the amount of $750,000, later reduced to $233,000. Plaintiff's counsel next sought nearly $800,000 in attorneys' fees, but the trial court only awarded $187,270, a steep reduction. Hence this appeal, relating solely to the attorneys' fees issue.

The reduction in attorneys' fees may seem excessive -- the trial reduced the amount by 70% -- but the Court of Appeals (Chin, Sullivan and Vacca [D.J.]) affirms. What you need to know is that the Court of Appeals rarely alters the district court's attorneys' fees rulings, which are reviewed under an abuse of discretion test. That test is deferential to the lower court, but the Supreme Court has said that appellate courts must be especially deferential to lower court attorneys' fees rulings on the basis that the trial court -- which presided over discovery and trial and motion practice -- is in a much better position to determine if the requested fees are too high, if trial court's claimed hourly rate is excessive, and whether any equitable considerations warrant a reduction in the fee award. The Court of Appeals does not have that intimate perspective on how the case proceeded below. That's why these appeals usually fail.

Here, plaintiff argued that the trial court unfairly reduced his hourly rate. Counsel requested $367.00 per hour but the district court assessed him at $300.00 per hour. Plaintiff's counsel arrived at the $367.00 amount by blending different hourly rates based on the tasks he was performing: $750 per hour for partner-level work, $450 for associate-level work, and $250 for paralegal work. But the Court of Appeals has never authorized such a calculation in setting an attorney's hourly rate, the Second Circuit holds. The better approach is to set your requested hourly rate at the attorney level and then seek a lower rate for tasks that a paralegal would normally do. In any event, hourly rates in the EDNY range from $300 to $450 for partner-level work. One judge in the EDNY last year raised the cap to $650 for partners, owing to inflation. The rate set by the district court in this case -- $300 per hour -- falls within the reasonable range, though at the lower end. That calculation is not an abuse of discretion.

What about the 70% reduction in hours? That was not an abuse of discretion, either, the Court of Appeals says. The reason is that plaintiff only prevailed on a few claims: excessive force and malicious prosecution against individual police officers and municipal liability against the County of Suffolk, though the latter claim yielded no damages. All of plaintiff's other claims failed. Under the Supreme Court's standards, courts may consider the overall degree of success in determining whether to modify the overall reduction. Altering the percentage reduction is not easy, even if the successful claim resulted in a large damages award. As plaintiff prevailed on only one of five federal claims in this case, against 12 police officers and two municipal entities, winning damages on only one claim, the Court of Appeals will not modify the reduction. On top of that, the trial court identified excessive and/or unnecessary billing entries, as well as vague time entries, which also warranted a reduction in attorneys' fees.

The Court of Appeals reassures us that a 70% reduction is not unheard of in the Second Circuit:

As for the 70% figure the district court settled on – which is an admittedly steep reduction – we note that such deductions are by no means unusual in this Circuit. For example, we affirmed a 50% across-the-board deduction in Matusick v. Erie County, 757 F.3d 31, 64 (2d Cir. 2014), due to a “lack of detail in the billing records” alone; a series of 50% deductions in In re Agent Orange Product Liability Litigation, 818 F.2d 226, 238 (2d Cir. 1987), due to “voluminous” billings on quasi-administrative items and travel time; and an 80% across-the-board deduction in Guardians Ass’n of Police Department of New York City v. City of New York, due to “facially excessive” hours and “vague[]” time records, 133 F. App’x 785, 786 (2d Cir. 2005). At the district level, courts in the Circuit also routinely apply deductions of 70% or more for suits with similar records of success and comparable billing defects.  

2d Circuit holds Supreme Court has changed the rules for reasonable accommodation cases

The Second Circuit holds that its prima facie test for failure-to-accommodate claims is no longer good law following the Supreme Court’s 2015 ruling in EEOC v. Abercrombie & Fitch Stores. The Circuit thus vacated summary judgment entered in favor of a court officer who was fired after refusing to comply with the Unified Court System's COVID-19 vaccine mandate.

The case is Bergin v. New York State Unified Court System, issued on July 15. Plaintiff wanted a religious exemption from her employer’s vaccination requirement. She asserted religious objections relating to fetal cell lines used to create the vaccine and her own bodily integrity. We saw these kinds of objections on a regular basis during the COVID era. While the state gave plaintiff a questionnaire that would evaluate the sincerity of her religious beliefs, she declined to answer most of the questions on privacy grounds. The court system denied the exemption request and fired plaintiff because she would not accept the vaccine. After the vaccine mandate was rescinded in 2023, plaintiff was reinstated. She then sued under Title VII, claiming the state failed to accommodate her religion. The district court granted summary judgment for plaintiff, a rare occurrence in employment discrimination cases, finding that plaintiff made out a prima facie case as a matter of law and the court system did not prove any undue hardship.

Under the Second Circuit’s old rules, plaintiffs had to show they (1) held a bona fide religious belief conflicting with a work requirement, (2) informed the employer of that belief, and (3) suffered discipline for failing to comply with the requirement. But Abercrombie changes that framework. Now, the plaintiff must show (1) she actually required a religious accommodation, (2) the employer's desire to avoid providing that accommodation was a motivating factor, and (3) she suffered an adverse employment action. Under the new framework, an employer's knowledge of the need for an accommodation is no longer an independent element of the prima facie case. Knowledge may support an inference of discriminatory motive, but motive and not notice is key after Abercrombie.

Here is the reasoning (citing from Abercrombie), explaining that the Court of Appeals (Raggi, Nathan and Furman [D.J.[]) has to comply with Supreme Court authority even if Second Circuit precedent held otherwise for decades:

“An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive,” just as “an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

The Supreme Court thus rejected one requirement of our old rule (that a plaintiff inform an employer of the need for an accommodation) and clarified that what a plaintiff must plead and, ultimately, prove (that the employer was motivated in part by the desire to avoid offering a religious accommodation). The Supreme Court explained that a “request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive,” but it “is not a necessary condition of liability.”

The Court further rejected plaintiff's argument that Abercrombie applies only to hiring decisions. Title VII's disparate-treatment provision governs both hiring and firing, and the Supreme Court's reasoning extends equally to termination cases.

The case returns to the Eastern District for reconsideration under the new legal standard. The trial court must determine whether the evidence would permit a reasonable jury to conclude the state denied Bergin's exemption because it sought to avoid providing a religious accommodation—not merely because it believed her application was incomplete or failed to establish sincerity.