Second Circuit says border agents can search cellphones without suspicion

The Second Circuit has held that federal agents can search your cellphone when you enter the United States without a warrant or reasonable suspicion..

The case is United States v.Alisigwe, issued on September 17. Under this ruling, the government may conduct a manual search of a traveler’s cellphone at the international border without any individualized suspicion. That is what happened here.

Alisigwe was a lawful permanent resident whom authorities suspected of using fraudulent identification documents to open bank accounts. In 2019, when Alisigwe returned to the United States through Idlewild Airport, Homeland Security and Customs and Border Protection officers stopped him for an inspection. An officer scrolled through Alisigwe's phone, and photographed material in his photo gallery, which contained names, birth dates, Social Security numbers, bank-account information and addresses belonging to other people. Two years later, officers again stopped Alisigwe at the airport and searched his phone. This time they photographed a Whats App message concerning one of the people whose identity had allegedly been stolen. When Alisigwe moved to suppress the cellphone evidence, the district court rejected the motion, reasoning that cellphone searches at the border required reasonable suspicion but that the officers had reasonable suspicion in this case.

The Second Circuit (Menashi, Lee [concurring] and Gonzalez [D.J.]) agreed that the evidence could be used, but for a different reason. The majority invokes the border-search exception to the Fourth Amendment. Ordinarily, a warrantless search requires an exception to the warrant requirement. But as for border searches, the Supreme Court holds that the government's interest in determining who and what enters the country permits routine searches without probable cause, a warrant, or reasonable suspicion.

The Second Circuit had previously distinguished between routine and non-routine border searches. Searches of luggage and other belongings generally are routine; highly intrusive searches of the person, such as strip searches and body-cavity searches, can require reasonable suspicion. The majority holds that a cellphone falls on the “property” side of the equation. The court recognizes that cellphones contain much personal information. But it reasoned that the government's border interest is not limited to physical contraband. Digital information can constitute contraband, and information on a cellphone may help determine whether a person is entitled to enter the country.

Judge Lee concurred in the judgment. She agreed that the particular searches in this case did not require a warrant or probable cause. But she disagreed with the majority's broader holding that all international travelers' cellphones may be searched without any individualized suspicion. She notes that a cellphone is not a suitcase and can contain medical information, financial records, personal messages, internet searches, location information and other highly private material. Judge Lee questioned whether the traditional rationale for border searches should extend to this comprehensive modern device. She also noted that Alisigwe did not challenge the district court's finding that reasonable suspicion actually existed. As Judge Lee sees it, the court did not need to decide whether suspicionless cellphone searches are constitutional.

2d Circuit interprets the Ending Forced Arbitration Act (Newton v. LVMH Part III)

The Court of Appeals has issued an important ruling on the scope of the Ending Forced Arbitration Act (EFAA), holding that a high-profile sexual harassment plaintiff cannot avoid arbitration on her sexual harassment and retaliation claims even if some of the hostile conduct took place after the EFAA took effect in March 2022.

The case is Newton v. LVMH, issued on September 21. Plaintiff -- whose testimony before Congress helped lead to the EFAA's enactment -- asserts that she endured sexual harassment prior to March 2022, and that following enactment of the EFAA, the sex discrimination and retaliation continued through her termination in December 2022. Under the EFAA, plaintiff can avoid arbitration on all her claims, including those that accrued prior to March 2022, if they are part of a continuing violation, an equitable principle that allows you to sue over actions that would be otherwise time-barred. 

"However, to trigger the doctrine, the timely and untimely acts must be 'sufficiently related' such that they constitute part of the same 'unlawful employment practice.'” The Court of Appeals (Bianco, Menashi and Brindisi [D.J.]) cites McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75, 77 (2d Cir. 2010), for this proposition. Until now, McGullam was the leading case on this issue. The Court adds:

To determine whether the requisite relationship between timely and untimely acts has been shown, we consider a variety of factors, including “the commonality of the environment in which the incidents took place (and whether a change in environment is due to intervening action by the employer), the nature of the incidents, and the temporal discontinuity between the incidents.” 

The continuing violation doctrine does not apply here because the pre- and post-EFAA acts of retaliation "are not sufficiently related such that they are 'part of the same course of discriminatory conduct," as "the 'who' and the 'how' of the alleged harassment and retaliation differed between the two relevant time periods." 

Prior to the EFAA's enactment, plaintiff primarily suffered discrimination from colleagues Doran (sexual harassment) and Firestone (who perpetrated the retaliation). The post EFAA retaliation was perpetrated by her supervisor, Pratt. Moreover, pre-EFAA, the Title VII violations involved pure sexual harassment. The post-EFAA violations involved retaliation that differed materially from the pre-EFAA retaliation. Pre-EFAA, plaintiff alleged, the company undertook a sham investigation into her sexual harassment complaint, giving her bad performance reviews, and other acts of workplace hostility. Post-EFAA, she alleges that LVMH engaged in a different pattern of retaliation, including requiring her to get pre-approval before she spoke publicly at panels or conferences, micromanaging her work matters, ignoring her and terminating her employment. There is not enough overlap between -pre- and post-EFAA allegations of retaliation to trigger the continuing violations rule. 

Plaintiff successfully pleads retaliation claim (Newton v. LVMH Part II)

The Court of Appeals has provided further guidance on how to determine if a Title VII retaliation plaintiff pleads a causal link between her protected activity and the adverse action, such as termination. We do not just look at the timing of the adverse action but its context.

The case is Newton v. LVMH, issued on September 21. I covered the protected activity holding at this link. The protected activity took place in August 2022, when plaintiff declined to meet with her supervisor to discuss settling her pending claims. Plaintiff was fired in December 2022. That four-month gap is enough to plead a prima facie case. The Second Circuit has issued numerous rulings stating that a certain time period is enough to assert causation. Here is how the Court (Bianco, Menashi and Brindisi [D.J.]) frames the inquiry in this case:

the time between the refusal and the termination is as much as four months. We have previously held that similar amounts of time are sufficient to suggest causation. See, e.g., Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (“[W]e have previously held that five months is not too long to find the causal relationship.”); Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014) (five months); Gorman-Bakos v. Cornell Co-Op Extension of Schenectady Cnty., 252 F.3d 545, 555 (2d Cir. 2001) (four months). 

Importantly, “[w]here temporal proximity is not the only evidence that bears on a causal connection, we have recognized that the lapse in time between the protected activity and adverse action can be longer.” Banks v. Gen. Motors, LLC, 81 F.4th 242, 277-29 78 (2d Cir. 2023). That additional evidence of causation can arise in the context of an ongoing discrimination lawsuit brought by the employee. . . . Moreover, in looking at “the facts as a whole,” we can also consider intervening patterns of “antagonism” or a “drumbeat of retaliatory animus” that do not themselves necessarily rise to a level of an adverse employment action.

Plaintiff does not merely rely on temporal proximity but the pattern of antagonism that followed the filing of her lawsuit, including her humiliating, public termination. Ultimately, "the combination of temporal proximity and these antagonistic actions lead us to conclude that Newton has plausibly alleged causation." 

Plaintiff engaged in protected activity in declining to meet with supervisor about settling her pending sexual harassment claims (Newton v. LVMH Part I)

The Court of Appeals has reinstated a Title VII lawsuit that alleged that management retaliated against a lawyer for a prominent international firm after she filed a sex discrimination lawsuit and later on declined to discuss settlement with her superior. The Court further holds that plaintiff has sufficiently plead that her protected activity in declining to discuss settlement led to a series of adverse actions, including her termination.

The case is Newton v. LVMH, issued on September 21. This blog post will cover whether plaintiff engaged in protected activity. 

Plaintiff sued LVMH in 2019 in state court and again in December 2023 in federal court, alleging that she was subjected to sexual harassment and retaliation in violation of state, federal, and city law. (The state court action was sent to arbitration and the Title VII action asserted claims that plaintiff accrued after the Ending Forced Arbitration Act (EFAA), which bars arbitration in sexual harassment cases, took effect.

In August 2022, following what plaintiff claimed was a series of retaliatory acts, including exclusion from a company retreat, disdainful looks at a company retreat, being berated over her job performance, and a time-consuming assignment given while she was on vacation, her boss, Pratt, asked if plaintiff would consider settling her claims. Plaintiff declined the invitation. Afterward, from August 2022 through December 2022, she suffered additional adverse actions, including a requirement that she get pre-approval before she agreed to speak at any panels or conferences (plaintiff was a high-profile public speaker about sexual harassment), exclusion from important communications, being ignored at weekly one-on-one meetings with Pratt, exclusion from an employee's farewell dinner, termination in a publicly humiliating manner, and denied her personal effects, a bonus, and a matching charitable contribution.

The Court of Appeals (Bianco, Menashi and Brindisi (D.J.]) holds that plaintiff engaged in protected activity in refusing to meet with her boss to discuss settlement. This is a new holding for the Second Circuit, which reasons:

If initiating a claim constitutes an assertion that the plaintiff was wronged, refusing to end a pursuit of that same claim with a settlement can—depending on the context—constitute a continuation of the same assertion. The relevant question is whether the employer understood or could reasonably have understood that the plaintiff’s refusal was an assertion of her continued opposition to the employer’s unlawful employment practices in violation of Title VII. If so, the refusal is a protected activity.

To trigger the "opposition clause" under Title VII, "such opposition can potentially include not only the filing of a discrimination lawsuit itself, but also other statements made, activities pursued, or positions taken by a plaintiff during the course of that discrimination lawsuit—such as a deposition, settlement discussions, a trial, or an appeal." 

By August 2022, when plaintiff refused to meet with Pratt, she had been vigorously pursuing her legal claims against the company and spoke out before Congress in support of the EFAA. In this context,  "Newton has plausibly alleged that when she refused to meet with Pratt to discuss settlement, he could have reasonably understood that refusal as communicating her continued belief that she had been wronged by [alleged sexual harasser] Doran and LVMH’s discriminatory conduct, and that she wanted acknowledgement and legal redress for those wrongs. That constitutes opposition and, thus, protected activity." The Court states in a footnote that not every refusal to settle constitutes protected activity. "What an employer can reasonably understand such a refusal to communicate depends on the full context of the refusal."

Importantly, the Court further holds it was not fatal that plaintiff did not affirmatively tell Pratt that her refusal to discuss settlement was a means to continue protesting her discrimination. Plaintiff asserts that objection was implicit. The Court reasons:

the Supreme Court has recognized that conduct or communications that reveal opposition, even implicitly, can constitute protected activity. See Crawford v. Metro. Gov't of Nashville, 555 U.S. 271, 277 (2009) (“Countless people were known to ‘oppose’ slavery before Emancipation, or are said to ‘oppose’ capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it ‘opposition’ if an employee took a stand against an employer’s discriminatory practices not by ‘instigating’ action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.”); accord Albunio v. City of New York, 16 N.Y.3d 472, 479 (2011) (concluding that opposition under the NYCHRL does not require an explicit statement that the plaintiff is a victim of discrimination).  

 

   

For appellate junkies only

This is a case for appellate junkies. The Court of Appeals decides whether it even has jurisdiction -- or authority -- to resolve the appeal. Actually, this is not just for appellate junkies. If you handle cases in the district court only, you have to know what to do to preserve your client's appellate rights. 

The case is Peralto v. New York City Dept. of Education, a summary order issued on September 16. This case involves the Individuals with Disabilities in Education Act (IDEA), which grants certain rights to disabled students, including an Individual Education Plan (IEP). Plaintiff sought a preliminary injunction in the district court. On June 26, 2025, the SDNY said it did not resolve that motion and a decision will issue in due course. But plaintiff filed a notice of appeal on July 10, 2025, even before the court issued a ruling on the injunction. On July 15, the court formally denied the injunction. Two weeks later, plaintiff filed a motion in the Second Circuit to expedite appellate review, noting that plaintiff was challenging the district court's injunction ruling and explaining why that ruling was incorrect. Plaintiff never filed a formal notice of appeal.

Normally, we take up an appeal by filing a notice of appeal. That confers appellate jurisdiction upon the Court of Appeals. Without a formal notice of appeal, does the Second Circuit have the power to decide the appeal? Yes, says the Second Circuit (Calabresi, Carney and Perez). This is because courts will liberally construe the requirements under Federal Rules of Appellate Procedure 3(c), which governs the filing of notices of appeal. The Court notes that "a document not styled as a notice of appeal may therefore serve as one if it is timely and gives the notice required by Rule 3."

The motion to expedite the appeal qualifies as a notice of appeal under FRAP 3 because it was timely and it identifies the denial of the preliminary injunction as the ruling plaintiff sought to challenge. It does not matter that the motion to expedite was filed in the Second Circuit and not the district court. While we are supposed to file the notice of appeal in the district court, filing that document in the Court of Appeals is not fatal under FRAP 4(d).

On the merits, plaintiff loses. The Court of Appeals finds the district court did not improperly deny the injunction request over the student's private school placement.  

Second Circuit clarifies prior ruling on reasonable accommodations in religious discrimination cases

The Court of Appeals has clarified a prior ruling interpreting Title VII's requirement that the plaintiff prove she was denied a reasonable accommodation because of her religion. The clarification does not alter the ultimate ruling in this case, but it offers a more plaintiff-friendly rule for other cases.

The case is Bergin v. New York State Unified Court System, issued on September 15. My summary of the original ruling, issued on July 15, is here. In that post, I wrote:

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.

. . . 

“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.”

In other words, the plaintiff has to show that management was motivated to deny the accommodation due to her religion. In the clarification issued on September 15, the Court adds a footnote stating that "Plaintiff must show the accommodation was denied because of religion, but she does not have to prove traditional discriminatory animus or hostility toward religion." Here is the footnote in full:

In stating that Abercrombie abrogated the absence of a “motive” requirement in our prior test, we do not suggest that a new, heightened discriminatory motive requirement exists in failure-to-accommodate cases. That is to say, an employee asserting a failure-to-accommodate claim need not show that an employer’s denial of an accommodation was motivated by discriminatory animus against religion. But, consistent with Abercrombie, the employee does have to show that the denial was “because” of the employee’s religion as opposed to, say, the employee’s failure to timely provide sufficient information.

Another change to the original opinion is a footnote that references the Supreme Court's ruling in Muldrow, which made it easier for plaintiffs to prove an adverse action in discrimination cases. Muldrow dispenses with the requirement that plaintiffs show the personnel action was a "material" change in his employment. Instead, the plaintiff must show "some harm." In the new footnote, the Court of Appeals declines to find whether or not the denial of a reasonable accommodation would constitute an adverse action under Muldrow. 

 

 

 

Plaintiff gets new trial on wrongful conviction fabrication-of-evidence claim

Here is another fabrication-of-evidence claim that involves law enforcement allegedly cutting corners to ensure a criminal conviction. The case will eventually be decided by a jury. 

The case is Batista-Reyes v. Paul, issued on August 17, 2.5 years after oral argument. The Court holds that plaintiff is entitled to a trial on his claims for malicious prosecution and fabrication of evidence under § 1983. The Court also holds that the defendant, former Troy Police Sergeant Robert Paul, was not entitled to qualified immunity at the summary judgment stage.

In December 1993, a man staying at a Super 8 Motel in Troy, New York, was assaulted and robbed. He told police that his attacker was a dark-skinned Black man with a short afro, about 5'8" to 5'10", wearing a long black jacket. Paul became the lead investigator and soon focused on Batista-Reyes. But plaintiff did not fit the victim's description. He is a light-skinned Hispanic man, did not have an afro, and was wearing a white-and-blue Giants jacket rather than a long black jacket. Yet, two women, Laura Ashley Pullen and Shannon Houser, gave police statements implicating plaintiff. Pullen became the prosecution's principal witness. She testified before the grand jury and at trial, and Batista-Reyes was convicted of all seven counts, receiving a sentence of 25 years to life.

Pullen then changed her mind in 2002, writing a series of letters while she was incarcerated, stating that plaintiff did not actually commit the crime and she was pressured into implicating him. Pullen said the District Attorney had threatened her and “gave me a script.” She also wrote that she was “TOLD to say everything” and was even made to rehearse her responses. This led to an investigation, and a special prosecutor concluded there were serious doubts about Pullen's original testimony. The state court granted set aside the conviction and Plaintiff was released after spending nearly 25 years in jail. 

We have a series of issues. First, hearsay. Pullen's letters were unsworn, and Pullen was unavailable as a witness. Paul argued that the letters were hearsay and could not be used to defeat summary judgment. The Second Circuit (Carney, Lee and Walker in dissent) disagreed, holding the letters could be admissible under the residual hearsay exception, Rule 807. We rarely see rulings interpreting the residual exception, much less rulings that favor the party trying to prove their case through this kind of hearsay. Plaintiff wins this argument. The letters are reliable because Pullen wrote multiple letters over several months, apparently without external prompting, she repeatedly made the same allegations, her letters were not written in response to police questioning, and the circumstances suggested that she was motivated by guilt rather than an effort to curry favor with law enforcement. The letters were also probative because Pullen had repeatedly avoided being deposed or appearing in court. Thus, at summary judgment, the letters were the best evidence Batista-Reyes could reasonably obtain concerning what happened in 1993.

On the probable cause issue, the district court noted that the grand jury indictment creates a presumption of probable cause. But, the Second Circuit notes, the presumption disappears when there is evidence that the indictment was procured through fraud, perjury, suppression of evidence, or other bad-faith police conduct. Pullen's letters created a factual dispute about whether her grand jury testimony had been coerced or fabricated. The Court also found evidence connecting Paul to the alleged misconduct. He was the lead investigator. He interviewed Pullen and obtained her written statement. A reasonable jury could find that Paul was one of the people Pullen meant when she repeatedly referred to “they” giving her a script and telling her what to say.

What also helps plaintiff's case is he did not match the victim's description, and there was evidence that Paul failed to investigate another possible suspect who apparently fit that description better. A jury could therefore find that Paul failed to conduct an investigation that a reasonable officer would have pursued.

On the fabrication of evidence claim, the Second Circuit noted that a police officer violates due process when he creates false information likely to influence a jury and forwards that information to prosecutors. And knowingly eliciting false testimony from a witness can constitute fabrication of evidence.

In 1993, Houser gave police a detailed account of the assault. Her description closely tracked the victim's account, including details about the victim sleeping against the headboard, the television and light, the knife, the threats, and the Nintendo games. But in a 2020 deposition, Houser said she was never in the room and did not see the assault. She explained that she had been using drugs and had told police what they wanted to hear, whether it was true or not. While the trial court said plaintiff's theory about Paul feeding Houser the information was speculative, the Court of Appeals holds instead that the evidence was sufficient to allow a jury to determine how Houser knew the details in her original statement and whether Paul participated in creating that statement. The same was true of Pullen. Her 2002 letters, combined with Paul's role as lead investigator and his involvement in obtaining her statement, created a genuine factual dispute over whether he coerced or fabricated her evidence.

Lyft not liable under ADA for not providing accessible vehicles to disabled riders

The Court of Appeals holds that a Lyft passenger cannot win her disability discrimination claim despite claiming that Lyft did not provide her wheelchair-accessible vehicles, also known as WAVs. 

The case is Lowell v. Lyft, Inc., issued on August 27. Plaintiff uses a motorized scooter and lives in White Plains. Lyft offers wheelchair-accessible “Access” rides in nine cities, including New York City. But it does not offer Access service in Westchester or most other areas.

The plaintiffs, including an advocacy group, proposed ways that Lyft could solve the problem. They wanted Lyft to remove its “blocker” preventing WAVs from being used in areas without Access service. They wanted Lyft to ask its drivers whether they had access to WAVs. They also proposed allowing WAV drivers to accept other types of rides, prioritizing WAV requests, and offering bonuses and incentives to attract WAV drivers. After a bench trial, the district court rejected those proposals. On appeal, plaintiffs argued that the district court improperly placed the burden on them to prove their proposed modifications were effective.

While the ADA requires transportation services to make reasonable modifications to their policies and practices, a plaintiff seeking a modification must prove the modification will be effective. As the Second Circuit (Kearse, Nardini and Lee) explained, an ineffective modification cannot be reasonable because it does not accommodate the plaintiff's disability. The plaintiff must also identify a plausible modification whose costs, on their face, do not clearly outweigh the benefits. Once that showing is made, to win the case, the defendant must prove the proposed modification is unreasonable.

Plaintiffs lose on the plausibility element. The problem for plaintiffs is there was not enough evidence that their proposal would create a functioning WAV service in Westchester. WAVs are rare and are generally not manufactured by automobile companies as wheelchair-accessible vehicles. Instead, standard vehicles are converted afterward, and those conversions can cost tens of thousands of dollars. In addition, there are not enough WAV drivers out there. When Lyft had tried to recruit WAV drivers in the Philadelphia and Delaware areas, it contacted more than 26,000 drivers, fewer than 130 responded, 30 referrals were received, and only one WAV driver joined Lyft's platform. That experience made it difficult for plaintiffs to prove that simply asking Westchester drivers whether they had WAVs would solve the problem.

The plaintiffs also claimed the district court had improperly required them to prove that their other proposed modifications were reasonable. The Second Circuit disagrees. The district court properly required plaintiffs to prove effectiveness while applying the lighter burden concerning reasonableness. Lyft then presented evidence showing that the proposals were ineffective and, in some respects, costly or otherwise unreasonable. Because the plaintiffs could not prove that their modifications would actually provide WAV service, the Court did not even have to reach Lyft's argument that the proposals would fundamentally alter its business.

Possible Batson violation may yield a new trial for plaintiff

A personal injury plaintiff may have a new opportunity to prove his unsuccessful claim on the basis that jury selection in this federal case may have been tainted by a Batson violation.

The case is Salters v. New York City Transit Authority, issued on August 7. The case arose from a car accident. Plaintiff was seriously injured when his car collided with a New York City Transit Authority bus driven by Jean Andre. Salters sued the Transit Authority and Andre for negligence. The case went to trial in the Eastern District of New York, where a jury returned a verdict for the defendants. On appeal, plaintiff argues that a Batson violation occurred during jury selection. 

Batson v. Kentucky is a Supreme Court ruling from 1986. Batson challenges arise when one party objects that her opponent is striking jurors due to their race; if so, that's an equal protection violation. When that happens, the opposing lawyer must give the judge a race-neutral justification for striking the Black juror. If that reason is a pretext -- such as when it lacks credibility or does not make sense -- the trial judge can return the rejected juror to the jury pool. Batson challenges are unpleasant because opposing counsel, who may have gotten along with their adversary during the case, is now accusing opposing counsel of using racial tactics to gain an advantage during trial. Many Batson challenges fail, as the lawyer can usually articulate a race-neutral reason for excluding the Black juror. But there is a procedure that the court must follow when someone makes a Batson challenge, and that procedure was not accomplished here. 

During jury selection, defense counsel used all three of his peremptory challenges against three Black prospective jurors—Jurors 8, 16, and 17. Salters's lawyer objected under Batson, arguing that the strikes were racially motivated. The magistrate judge required defense counsel to provide race-neutral explanations. But the explanations weresubjective. Counsel said Juror 8 appeared “very simply educated” and might have difficulty understanding expert testimony. Juror 16 was a home health aide, which counsel thought might make her sympathetic toward disabled or elderly people. Juror 17 “seemed a little out of it” and might not understand the evidence.

The judge rejected the Batson challenge, holding she did not think counsel struck Juror 17 because he was Black and that counsel had articulated race-neutral reasons. She also noted that two Black jurors remained on the jury. The judge's statement that defense counsel did not strike the juror because he was Black referred specifically to Juror 17. The judge's reference to “race neutral reasons” did not establish she had determined that the explanations for all three strikes were genuine rather than pretextual. The Second Circuit cites the Supreme Court's 2026 decision in Pitchford v. Cain, which reiterated that Batson's third step requires the trial court to determine whether the asserted reasons for the strikes were the actual reasons or instead were pretextual.

The Court of Appeals (Lohier, Lynch and Menashi in dissent) rejected the idea that the presence of two Black jurors on the final jury solved the problem. The fact that other Black jurors remain on a jury does not, by itself, defeat a Batson claim. Since defense counsel had already exhausted his peremptory challenges, the judge could not know whether counsel would have struck the remaining Black jurors had additional challenges been available.

Plaintiff does not automatically get a new trial. Instead, the case returns to the trial court for a Batson reconstruction hearing. The district court must determine whether the challenged strikes were discriminatory. If the passage of time or other circumstances make that determination impossible or unreliable, then plaintiff gets a new trial.

Second Circuit revives wrongful conviction claims against NYPD Detective and City of New York

 

The Second Circuit has reinstated a wrongful conviction lawsuit, holding the plaintiff – arrested in connection with a June 1989 murder at a movie theater – plausibly alleges that a NYC detective fabricated evidence against him and that the district court should reconsider its holding that plaintiff has not plausibly asserted a Monell claim against the City.

The case is Jiminez v. City of NewYork, issued on September 4. Plaintiff was convicted in 2007 of murdering Sean Worrell outside a Bronx movie theater. In 2022, a Southern District judge granted plaintiff’s  habeas petition and vacated the conviction upon finding that prosecutors suppressed important impeachment evidence concerning a key government witness. The criminal charges were eventually dismissed in 2023. Hence this lawsuit against the detectives and the Bronx District Attorney. While the district court dismissed plaintiff's claims, the Court of Appeals brings some of them back.

Without physical evidence tying plaintiff to the murder, the prosecution relied on three witnesses: eyewitness Esco Blaylock, cooperating witness Andrew O'Brien, and jailhouse informant Kevin Morrissey. Blaylock originally identified the shooter as someone he knew as “Leon.” But that is not Jimenez’s first name, and the complaint alleges that plaintiff did not look like the shooter. The complaint also alleges that police showed Blaylock multiple photo arrays in which Jimenez's photograph repeatedly appeared. The Second Circuit said such a procedure creates an increased danger of misidentification.

Another witness, O'Brien, was a prisoner seeking a reduced sentence. While the prosecutor obtained records showing his history of cooperation, his efforts to obtain leniency, and communications concerning his potential cooperation in Jimenez's case, those materials were never disclosed to Jimenez's lawyer. After Jimenez was convicted, the prosecutor wrote to the federal prosecutor praising O'Brien's cooperation and asking that he receive favorable consideration. O'Brien subsequently received another five-year reduction in his sentence. The habeas court found the suppressed impeachment evidence was prejudicial and vacated Jimenez's conviction. The court emphasized the weakness of the prosecution's case, including the questionable eyewitness identifications and the jailhouse informant. Morrissey was also a jailhouse informant, but the Court of Appeals holds he was unreliable and delusional, and the prosecution withheld impeachment evidence relating to this witness.

While the Second Circuit (Calabresi, Lee and Nathan) holds that plaintiff’s malicious prosecution fails because a grand jury had indicted him, creating a presumption of probable cause, it revives the fabrication of evidence claim, which is not defeated by probable cause. Plaintiff asserts such a claim against Detective Stradford.

The complaint incorporated an FBI memorandum suggesting that Stradford had already decided that O'Brien would identify Jimenez as the killer before Stradford's initial meeting with O'Brien. Combined with O'Brien's efforts to obtain a sentence reduction, the nondisclosure of those circumstances, and the allegation that Jimenez did not resemble the shooter, the Court found enough to plausibly infer that Stradford intentionally induced O'Brien to give false testimony.

The allegations concerning Blaylock are also revived because, the Second Circuit holds,  repeatedly showing a witness photo arrays containing the same suspect could support an inference that the witness was improperly induced to identify that suspect. At the pleading stage, Jimenez did not have to prove precisely what Stradford said to Blaylock behind closed doors.

As for the Monell claim, which allows you to sue the City and not just the individual officers, remember how difficult it is to prove the municipality had a policy and practice that led to the plaintiff’s civil rights violations. Many police misconduct claims are not amenable to a Monell claim because these cases stem from an individual police officer or detective’s misconduct. In this case, plaintiff alleged the City maintained a policy or custom of failing to discipline Bronx prosecutors for ethical violations. While the district court rejected the Monell claim, reasoning that Jimenez could not establish the necessary constitutional violation without showing that the prosecutor's Brady violation was intentional, the Court of Appeals sees it differently, noting that its prior decisions had not decided whether a civil Brady claim necessarily requires intentional nondisclosure. And Monell liability focuses on whether the municipality's policy or custom caused the constitutional violation, including whether the municipality acted with deliberate indifference.

Here, the complaint also plausibly alleged intentional conduct by the prosecutor. Plaintiff alleges she knew about O'Brien's efforts to obtain leniency, received documents from the federal prosecutor, but failed to disclose them to the defense. The Court of Appeals remands the case to the district court to consider whether Jimenez adequately alleged a municipal policy or custom and whether that policy caused his constitutional injury.

Employees barred from wearing certain pins during Starbucks union drive

The Court of Appeals holds that Starbucks may regulate how workers may display their support for a union drive in the workplace, including pins. The t-shirt policy is still an open question.

The case is Siren Retail Corporation v. National Labor Relations Board, issued on September 2. Starbucks employees were trying to organize a union shop. They wore black t-shirts bearing the name and logo of Starbucks Workers union atop their Starbucks-approved aprons. When Starbucks told the workers that the t-shirts violated company policy, they filed a charge with the NLRB, which then filed a complaint against Starbucks challenging its one-pin policy identifying a particular labor organization, and the issue-pin policy, that bars workers from wearing pins depicting political, religious or personal issues. The NLRB also challenged the logo-shirt policy barring workers from displaying colors, designs or writings that Starbucks did not approve.

The NLRB ruled against Starbucks, which challenged that result in the Second Circuit (Walker, Carney and Nardini), which holds as follows:

1 The one-pin policy is not an unfair labor practice. The Second Circuit has already held that a close analogue to that policy was legal. "Starbucks is 'entitled to avoid the distraction from its messages that
a number of union buttons would risk' and ... Starbucks 'adequately maintain[ed] the opportunity to display pro-union sentiment by permitting one, but only one, union button on workplace clothing.'”

2. The issue-pin and logo-shirt policies are a closer question and the case is remanded to the NLRB to reconsider its ruling against Starbucks. The Second Circuit applies a balancing test for the NLRB to apply in this case. 

When balancing employer and employee interests on remand, the Board should seriously entertain the following factors, as part of its analysis: (1) the extent of intrusion on employee Section 7 rights (i.e., whether the employer enforced a full or partial ban on union insignia during working time); (2) whether the employer’s policy is facially neutral, nondiscriminatory, and consistently enforced; (3) the context or circumstances underlying the intrusion. In considering these factors, the Board’s factual findings must be supported by substantial evidence. By doing so, the Board will be better able to assess whether an employer’s policy “truly diminished the ability of the labor organizations involved to carry their message to [] employees.”

This balancing rejects an NLRB rule -- called the Tesla standard -- that the Second Circuit holds "does little more than pay lip service to balancing."  

 

 

No free speech claim after school directed teacher to remove gay pride flag from classroom

The Court of Appeals has ruled that a school teacher in Suffolk County did not have the First Amendment right to post pride flags and stickers in her classroom, and that the district did not violate the Constitution when it ordered her to remove these expressive decorations. 

The case is Dolce v. Connetquot Central School District, issued on August 31. Plaintiff, a math teacher, had a large pride flag in her classroom for years, along with a traditional pride flag covering the white board. But a few years ago, after some students said they were uncomfortable with the flags, the school told her to replace the flags with a sign that said, "This is a safe place to be who you are." Plaintiff did not remove the pride flags and two other LGBTQ+ teachers (who are also plaintiffs here) advocated on the math teacher's behalf in an effort to keep the pride flags on the wall. Ultimately, the district said that school policy only permitted the U.S. flag and the New York State flag in classrooms, and that employees could not engage in "political practices" on campus. Shortly thereafter, the district said that pride stickers in the classroom were also disallowed.  

This case involves speech -- placement of the pride flags and stickers -- but that does not make it a viable frees speech case. The First Amendment has its share of balancing tests and frameworks depending on the circumstances. For public employees, the plaintiffs have to show they spoke as a citizen (protected speech) and not as an employee (unprotected speech). Under the Supreme Court's Garcetti ruling in 2006, speech is unprotected if it "owes its existence to a public employee's professional responsibilities." If that is the case, then the government can control the speech. Under more recent Supreme Court authority, Kennedy v. Bremerton School District, 597 U.S. 507 (2022) (the football coach prayer case), courts consider whether, given the "timing and circumstances" of the speech, the expression is what "the employee is expected to deliver in the course of carrying out his job." The Second Circuit's reliance on Kennedy is significant: it is the first time the Second Circuit has cited Kennedy for that proposition in a public employee speech case.

Since public school teachers are expected to teach a particular curriculum and to create classroom learning environments and materials to support that curriculum, the wall decorations in this case owe their existence to their core professional responsibilities, and the district may therefore ask them to remove the decorations without violating the First Amendment. And, while Garcetti has a carve-out for college professors, who have leeway to present their views and speak freely, that exception does not apply in the grade-school context, where work-related speech rules are more restricted and teachers have to follow a curriculum. The Second Circuit (Nathan, Park and Kahn) holds for the first time that Garcetti governs a public school teacher's curricular speech. 

Plaintiffs also assert a Title VII claim on the basis of sex discrimination. But that claim fails because they cannot prove an adverse action, even under the more lenient test in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), which dispenses with the "materiality" or "significant" test and instead asks whether the plaintiff can prove "some harm respecting an identifiable term or condition of employment." The Court of Appeals holds there is no adverse action here because there was no discipline, termination, or loss of pay but instead a directive that they remove the pride flags and stickers from the classroom walls. That directive does not implicate Muldrow because it does not impact "an identifiable term or condition of their employment." Nor does it reflect "some injury respecting one."

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.