Coerced confession decision will return on Friday

The case of the missing opinion has been solved. Earlier today I wrote about an interesting constitutional ruling by the Court of Appeals which held that a coerced confession in connection with 9/11 could give rise to a constitutional claim. Shortly after the decision was posted, it was withdrawn without explanation. Other bloggers wrote about the mystery, and the father of legal blogging linked to a PDF of the ruling which someone must have emailed to him. Here is what Howard Bashman reported at the How Appealing blog:

Catherine O'Hagan Wolfe, the Clerk of Court of the U.S. Court of Appeals for the Second Circuit, has telephoned to advise that the opinion was withdrawn out of a concern that it might disclose information contained in a portion of the appendix on appeal that was submitted under seal. The Second Circuit plans to reissue the decision, as revised to omit any disclosure of information filed under seal, tomorrow morning. The purpose of Ms. Wolfe's telephone call was to ask me to take down this blog's posting of the decision to the internet.

Sept. 11 coerced confession violates the Constitution

In one of the most interesting cases decided by the Second Circuit in quite some time, the Court of Appeals ruled on October 18 that a man could sue a Federal agent for coercing a confession about his involvement in the September 11 attacks. Update: adding further intrigue to this case, the opinion in this case was withdrawn about two hours after the Court of Appeals posted it on its website. No explanation given. The link to the decision below is now dead.

The case is Higazy v. Millenium Hotel and Resorts. Higazy is an Egyptian citizen who was studying in New York City on the morning of September 11, 2001. The hotel he was staying in was evacuated right after the attacks, and a month later, hotel personnel found a suspicious airplane radio in Higazy's hotel room safe. The radio was an air-band transceiver capable of air-to-air and air-to-ground communication. This raised suspicions about Higazy and whether he was communicating with the hijackers and had something to do with the attacks. When FBI agents informally questioned Higazy, he had no idea what they were talking about and proclaimed his innocence. No matter. Higazy was held as a material witness and kept in custody.

When the FBI interrogated Higazy, defendant Templeton (an FBI agent) ridiculed him and called him a liar. According to the Court of Appeals,

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.”

Higazy later said, “I knew that I couldn’t prove my innocence, and I knew that my family was in danger.” He explained that “[t]he only thing that went through my ead was oh, my God, I am screwed and my family’s in danger. If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”

So Higazy "confessed" to owning the radio to save his family from the brutal Egyptian government which he compared to Saddam Hussein's torure regime in Iraq. He therefore concocted an inconsistent story about how he obtained the radio. Higazy was next charged with engaging in criminal activity.

What happened next was even more bizarre. An airline pilot next returned to the hotel to reclaim his property. "After inspecting his items, the pilot informed the hotel staff that his transceiver was missing." The radio which authorites thought belonged to Higazy actually belonged to the pilot, who had had no interaction with Higazy. After being charged with the crime of the century, Higazy was innocent! He was freed and next brought a lawsuit against the interrogator, claiming constitutional violations relating to the coerced confession.

The Court of Appeals agreed that Higazy has a claim under the Constitution for the coerced confession and that Templeton is not entitled to qualified immunity. Reviewing the law of coerced confessions, the Second Circuit untangled Supreme Court precedent in finding that the confession could predicate a civil lawsuit because it was obtained in connection with a criminal case, in particular, a bail hearing on January 11, 2002. While government defendants are entitled to qualified immunity (and can't be sued) if the law was unclear at the time of the incident, the Court of Appeals reasoned, "On January 11, 2002, it was clearly established that the FBI could not coerce a confession and later use that confession in a criminal case, including in a proceeding before a judge after criminal charges had been filed, to impose the penalty of continued detention. The government argues that there was conflicting Supreme Court law as to whether a Fifth Amendment right against self-incrimination was only a trial right, or extended more broadly. We disagree."

Wrapping up, the Second Circuit also rejected Templeton's other qualified immunity argument that it was objectively reasonable for him to act as he did under the circumstances. "When the facts are cast in the light most favorable to Higazy, an officer in Templeton’s shoes would have understood that the confession he allegedly coerced from Higazy would have been used in a criminal case against Higazy and that his actions therefore violated Higazy’s constitutional right to be free from compelled self-incrimination." While Judge Jacobs concurred in the result and took issue with the majority's analysis, he acknowledge the case raised "oddball facts."

Religious land-use act is constitutional

In 1990, the Supreme Court issued a ruling that made it easier for the government to burden the exercise of religion, holding that if a certain law applies to everyone, then its adverse effect on certain religious practices does not violate the Free Exercise Clause of the Constitution, which protects religious freedom. That case was Employment Division v. Smith, a much-criticized decision which arguably reversed decades of case law on the subject. Congress responded to this ruling by enacting the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits the government from imposing or implementing a land use regulation in a manner that imposes a substantial burden on the religious exercise of a religious institution. The government can prevail if it can show that compelling reasons necessitate this burden on that institution and there is no other way to achieve that compelling interest.

In Westchester Day School v. Village of Mamaroneck, decided on October 17, the Court of Appeals (Cardamone, Raggi and Berman) agreed with the district court that the Village of Mamaroneck violated RLUIPA in denying the permit for a Hebrew school to expand its building for religious purposes. Importantly, the Court of Appeals held that RLUIPA is constitutional.

In fleshing out the elements of a case like this, the Court held that the permit denial violated the statute because it substantially burdened the school. Courts have narrowly interperted the "substantial burden" test; the religious institution will likely lose the case if the zoning decision leaves open the possibility that the institution can achieve its zoning goals in other ways, i.e., a resubmission of the zoning request with modifications.

In addition, the Court held, if the denial of the institution's application will have a minimal effect on its religious exercise, that denial is not a "substantial burden." The Court reasoned, "There must exist a close nexus between the coerced or impeded conduct and the institution's religious exercise for such conduct to be a substantial burden on that religious exercise." Accordingly, the Second Circuit observed, "courts confronting free exercise challenges to zoning restrictions rarely find the substantial burden test satisfied when the resulting effect is to completely prohibit a religious congregation from building a church on its own land."

So how did the Westchester Day School win the case? It won because the trial court ruled that the zoning application denial was arbitrary and capricious and the denial bore no relationship with public health, safety or welfare. The zoning denial was also unsupported by the evidence. Since there was no other way for the school to achieve its objectives once the municipality denied its application for arbitrary reasons, the Town violated RLUIPA.

Then the Court of Appeals addressed a broader question. Is RLUIPA constitutional as applied to this case? This argument comes up from time to time as defendants suggest that this law violates the constitutional separation of church and state and other constitutional provisions. The Court of Appeals found that RLUIPA does not violate the Commerce Clause because the $9 million construction job sought by the school had at least a minimal effect on interstate commerce. The Court of Appeals also rejected the Town's Tenth Amendment claim. That amendment is known as the "state's rights" amendment because it affords States the right to do what the Constitution does not allocate to Congress. Since RLUIPA does not direct States to require or perform any particular acts, and instead leaves it to the States to determine how to enact and enforce land use regulations consistent with religious freedom, there is no Tenth Amendment problem.

Finally, the Town argued that the Establishment Clause prohibits laws like RLUIPA because the law breaches the separation of church and state. But the Court of Appeals held that the law neither advances nor inhibits religion; it only permits religious practicioners the free exercise of religion without undue government interference. The law also does not create excessive government entanglement with religion. It is not enough for the Town to argue that a law which requires municipalities to treat religious institutions fairly creates undue entanglement.

Second Circuit rejects premature disability discrimination appeal

Not every court ruling can be appealed in the Federal system. You need a final judgment which resolves all the claims before taking the case to the Court of Appeals. One of the ways around this is by having the trial court certify the case for an early appeal under Rule 54 of the Federal Rules of Civil Procedure. We call that interlocutory appeals. But sometimes, even if the trial judge certifies the case for immediate appeal, the Court of Appeals rejects that certification. That happened on October 16, 2007, in Transport Workers Union of America v. New York City Transit Authority.

The union sued the City claiming that certain sick leave procedures violated the Americans With Disabilities Act because workers have to tell management the nature of their illness or disability. Employees who need more than two days' off have to also provide certain medical records. Employees found to have abused sick leave in the past also have to provide certain medical records. The union argued that these procedures represent a prohibited inquiry under the ADA which only permits the release of medical information when it's "job-related and consistent with business necessity." According to the union, this information might reveal certain ADA-covered disabilities like AIDS, cancer and depression.

The district court held a trial on the legality of this policy only as it affected two subclasses of the union: bus drivers and station cleaners. After trial, the court ruled that these sick leave procedures were legal only for the sick leave abusers and for bus drivers and other safety-sensitive employees. The policy was otherwise illegal to the extent it sought to prevent sick leave abuse. The union wanted to appeal, but the problem was that the district court had yet to rule on the policies as they affected other transit employees. Since the case was not final and therefore not ready for the Court of Appeals, the district court certified the case for immediate appeal.

The Court of Appeals does not have to entertain an appeal that the district court certifies for immediate appeal. In this case, the Second Circuit said the case was not yet ready for appeal. While the lower court did rule on the legality of the sick leave policy as it affected bus drivers, that did not mean that issues concerning the bus drivers would not again surface in a later appeal, particularly since the City is prepared to make other arguments in favor of the sick leave policy as it affects the bus drivers. Since the purpose of the certification policy for immediate appeals is to allow the Court of Appeals to resolve a distinct class of legal issues, the fact that other issues concerning the bus drivers might return to the Second Circuit on another day means that the district court was wrong to certify the case for immediate appeal. Bottom line: appeal dismissed for lack of appellate jurisdiction.

EEOC filing not required in some disability discrimination cases

Employment lawyers know that plaintiffs have to file a timely administrative charge of discrimination with the Equal Employment Opportunity Commission. This includes charges of racial or gender discrimination. It also applies to claims under Title II of the Americans With Disabilities Act, which prohibits discrimination in the workplace against disabled people. But what about discrimination in the area of public accommodations? Those claims are covered by Title III of the Americans With Disabilities Act, which does not require the plaintiff to bring an administrative claim with the EEOC. This distinction seems simple enough, but the Court of Appeals issued a ruling on October 15 reminding us that "public accommodation" claims are distinct from employment claims.

The case is McInerney v. Rensselaer Polytechnic Institute. The plaintiff alleged that RPI did not reasonably accommodate his disability when he sought a doctorate as his advisor asked "ill posed and unreasonable questions" and another RPI administrator told the plaintiff to "stop using his disability as an excuse." While he filed his lawsuit in court (Northern District of New York), the plaintiff did not first file a charge of discrimination with the EEOC. The district court dismissed the case for that reason. On appeal, the Second Circuit (McLaughlin, Raggi and Rakoff) said that since this is not an employment discrimination case but instead an action alleging discrimination in the public accommodation of a university, no EEOC complaint was necessary.

The Court of Appeals reasoned:

There is good reason to conclude that Congress intentionally omitted the exhaustion requirement for public-accommodations claims, as it would make little sense to require a plaintiff challenging discrimination in public accommodations to file a charge with the EEOC, an agency with responsibility for and expertise in matters of employment discrimination. Accordingly, we hold that there is no administrative-exhaustion requirement for ADA Title III claims or Title V claims predicated on asserting one’s rights under Title III.

International corporations may be sued for apartheid-era violations in South Africa

The apartheid form of government in South Africa may be dead, but litigation arising from the racially-based social structure that fell nearly 20 years ago rages on. On October 12, in
Khulumani v. Barclay National Bank, the Court of Appeals (Katzmann, Hall and Korman) revived a lawsuit against various corporations alleged to have collaborated with the government of South Africa in maintaining its authoritarian system of government.

The opinion opens with the following intriguing statement:

The plaintiffs in this action bring claims under the Alien Tort Claims Act, 28 U.S.C. § 1350, against approximately fifty corporate defendants and hundreds of “corporate Does.” The plaintiffs argue that these defendants actively and willingly collaborated with the government of South Africa in maintaining a repressive, racially based system known as “apartheid,” which restricted the majority black African population in all areas of life while providing benefits for the minority white population.

The Alien Tort Claims Act allows the district court to exercise "jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In 2004, the Supreme Court ruled that the law allows "for a relatively modest set of actions alleging violations of the law of nations."

In the apartheid case, The Second Circuit ruled that "in this Circuit, a plaintiff may plead a theory of aiding and abetting liability under the ATCA." In other words, corporations and other non-governmental actors that were accomplices to the violation of human rights and international law may be sued under the Alien Tort Claims Act.

Judge Korman dissented, summarizing the majority's holding as well as his objections to how the Court of Appeals interpreted the Act:

Today, the majority allows three class actions on behalf of all persons who lived in South Africa between 1948 and the present and who suffered damages as a result of apartheid to go forward in a United States court against American, Canadian, and European corporations that sold goods and materials or made loans to the Union of South Africa during the apartheid era. It does so over the vigorous objections of the United States, its allies, and, most notably, the Republic of South Africa, which is justifiably proud of the ability of its legal system to adjudicate legitimate human rights claims. In doing so, the majority also ignores a direct signal from the Supreme Court of the United States regarding the non-viability of these claims.

Family Court cannot order a bad mother not to have any more children

A state appeals court in Rochester, N.Y., has resolved an interesting question of law: can a Family Court order a bad mother not to get pregnant until she cleans up her act? The appellate court said "no."


The case is In the Matter of Bobbijean P. After the baby was born addicted to cocaine, the Monroe County Department of Human and Health Services placed her with a relative. When the mother failed to show up in Family Court, the court ruled that her parents (who were homeless) were guilty of neglect. The court also ordered that the mother "shall not get pregnant again until and unless she has actually obtained custody and care of Bobbijean P. and every other child of hers who is in foster care and has not been adopted or institutionalized."

The Appellate Division reversed. First, it excused the mother for not showing up in Family Court since she was unaware that the court would take the unprecedented step of ordering her not to get pregnant again. The appellate court reasoned: "Regardless of whether respondent willfully defaulted with respect to the hearing, an order prohibiting respondent from conceiving a child is, insofar as our research discloses, unprecedented in this state, and such consequences could not have been anticipated by respondent."

More broadly, the appellate court said, the Family Court had no authority under the rules to prohibit the mother from getting pregnant again. Apparently, another court in New York held that the rules governing Family Court contained implied authority for the courts to impose this condition. That case is Matter of V.R., 6 Misc 3d 1003[A], which broadly interpreted the rules allowing the courts to order certain medical treatment. But, the Appellate Division said, "In our view, the compelled use of birth control measures is not encompassed within the term 'medical treatment' . . . nor does a prohibition against reproduction address the goals of remedying the acts found to have caused the neglect or of safeguarding the well-being of the child within the meaning of " the Family Court rules.

This case obviously raised important constitutional issues, which is probably why the New York Civil Liberties Union got involved. A line of U.S. Supreme Court cases holds that the Constitution guarantees the right to procreate. But the Appellate Division side-stepped those issues because there was an easier way to overrule the Family Court. The question of whether a court may order a woman to avoid getting pregnant will have to be decided some other time.