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A proprieter in upstate New York opened a dance club called Fun Quest which immediately became a big hit with local teenagers, who overcrowded the place. Such a hit, in fact, that the Town Board amended the special use permit to prohibit teenage dances. As local officials debated what to do about this problem, the Town Supervisor allegedly made racial comments about Fun Quest's black patrons. The constitutional dispute wound up in the Court of Appeals, which held that Fun Quest has a case.
The case is Cine SK8 v. Town of Henrietta, decided on November 8. After the district court granted dismissed the case on summary judgment, the Second Circuit reinstated the case, outlining how parties in zoning disputes can prevail in a constitutional challenge. Here's what the Court of Appeals (Feinberg, Calabresi and Wesley) did:
1. On the substantive due process claim, Fun Quest arguably had a property interest in the permit which Town officials subsequently amended to prohibit teen dances. It's not easy to show a property interest in zoning cases (which is why many of these cases are sent to State court), but here, Fun Quest's property right was "vested" since it did receive the permit and also invested $2.3 million in renovations in reliance on that permit.
2. The due process claim is also viable because the government had arguably revoked the permit for arbitrary reasons. While this is also a difficult standard to meet, Fun Quest gets a trial on this issue because of the alleged racial animus which motivated the Town Supervisor to oppose the teen dances. What makes this case unique is the Second Circuit's holding that the improper views of one member of a municipal board can make the Town liable even if the rest of the board did not share those views. Unlike other courts, the Second Circuit "has never adopted the rule that a plaintiff must demonstrate that a majority of a public body acted with racial animus or in an otherwise unconstitutional maner in order for that plaintiff to hold the municipality liable for constitutional violations." Instead, to prevail, the municipality must prove that a majority of the board acted for legitimate reasons. In other words, the illicit views of one member creates a presumption that the entire board acted improperly. Not only does the Second Circuit's standard take into account the secretive nature of racism, but it comports with employment discrimination cases holding that the impermissible bias of one decisionmaker can infect the entire process. In this case, at least three members of the board used racial code words, i.e., "city kids," in opposing teen dancing at Fun Quest. That's enought for a trial on this issue.
3. Another reason the plaintiffs get a trial here is the irregular process leading up to the permit amendment. A planning dispute tainted by procedural irregularity is enough to show arbitrary treatment in zoning/due process cases. Here, the Town Board had no lawful authority to amend the permit (it can only suspend or revoke them) and the Board failed to provide Fun Quest any procedural rights at the hearing (such as cross-examination of hostile audience members or the chance to respond to incendiary allegations at the hearing). This allows the substantive due process claim to go forward at trial.
Thursday, November 8, 2007
Wednesday, November 7, 2007
When is an EEOC charge a "charge"?
The U.S. Supreme Court is reviewing a Second Circuit ruling which broadly interprets the employment discrimination laws to allow plaintiffs to seek relief without technically complying with the requirements governing the filing of an administrative complaint. The case arises at a time when scholars are criticizing the Supreme Court for interpreting the civil rights laws in an overly technical manner.
The case is Federal Express v. Holowecki, 440 F.3d 558 (2d Cir. 2006). Last year, the Second Circuit reinstated an age discrimination lawsuit even though the plaintiff did not formally file the administrative complaint with the Equal Employment Opportunity Commission, which reviews and tries to settle discrimination cases before the plaintiff brings the lawsuit. Without first filing a complaint with the EEOC, the plaintiff cannot bring the lawsuit.
In Holowecki, the plaintiff instead filled out a lengthy questionaire with the EEOC outlining the nature of the case. The Second Circuit equated the questionaire with the formal charge that plaintiffs normally file with the EEOC. The issue may seem overly technical, but if the plaintiff neglects to file a formal charge within 300 days of the discrimination, he cannot bring the lawsuit in court. If the questionaire -- which elicits all the information the EEOC needs to process the case at the administrative level -- qualifies as a "charge," then doing so within 300 days preserves the plaintiff's right to bring the lawsuit later on.
The best argument in favor of dismissing Holowecki's case was that since he did not file a formal charge of discrimination, Federal Express did not know that he had gone to the EEOC. One of the reasons for the EEOC process is to allow the employer to investigate the allegations and possibly settle the case before it becomes a full-blown lawsuit. But the Second Circuit said that the real question is whether Holowecki signaled his intent to proceed with a charge of discrimination in completing the questionaire.
Oral argument at the Supreme Court on this case was held yesterday. According to a web site that tracks the Supreme Court, "Although the dispute in this case was nominally between defendant Fed Ex and plaintiff Holowecki, it was evident at oral argument that the Court held the EEOC at fault for creating the dispute both by issuing unclear guidance regarding what constitutes a charge of age discrimination and by implementing inconsistent enforcement practices under its regulations." Indeed, press reports suggest that Holowecki will prevail at the Supreme Court.
The case is Federal Express v. Holowecki, 440 F.3d 558 (2d Cir. 2006). Last year, the Second Circuit reinstated an age discrimination lawsuit even though the plaintiff did not formally file the administrative complaint with the Equal Employment Opportunity Commission, which reviews and tries to settle discrimination cases before the plaintiff brings the lawsuit. Without first filing a complaint with the EEOC, the plaintiff cannot bring the lawsuit.
In Holowecki, the plaintiff instead filled out a lengthy questionaire with the EEOC outlining the nature of the case. The Second Circuit equated the questionaire with the formal charge that plaintiffs normally file with the EEOC. The issue may seem overly technical, but if the plaintiff neglects to file a formal charge within 300 days of the discrimination, he cannot bring the lawsuit in court. If the questionaire -- which elicits all the information the EEOC needs to process the case at the administrative level -- qualifies as a "charge," then doing so within 300 days preserves the plaintiff's right to bring the lawsuit later on.
The best argument in favor of dismissing Holowecki's case was that since he did not file a formal charge of discrimination, Federal Express did not know that he had gone to the EEOC. One of the reasons for the EEOC process is to allow the employer to investigate the allegations and possibly settle the case before it becomes a full-blown lawsuit. But the Second Circuit said that the real question is whether Holowecki signaled his intent to proceed with a charge of discrimination in completing the questionaire.
Oral argument at the Supreme Court on this case was held yesterday. According to a web site that tracks the Supreme Court, "Although the dispute in this case was nominally between defendant Fed Ex and plaintiff Holowecki, it was evident at oral argument that the Court held the EEOC at fault for creating the dispute both by issuing unclear guidance regarding what constitutes a charge of age discrimination and by implementing inconsistent enforcement practices under its regulations." Indeed, press reports suggest that Holowecki will prevail at the Supreme Court.
Thursday, November 1, 2007
"Monell, Monell, Monell"
I was in court once and an attorney was trying to convince the judge that he had a great case. The judge kept interrupting the lawyer, telling him, "Monell, Monell, Monell." Non-lawyers would not know what the judge meant, but any lawyer in the room would understand what the court was trying to convey: the lawyer was suing the wrong entity.
Monell is shorthand for a legal principle under the federal civil rights laws, particularly what we call Section 1983, which is the law that allows us to bring suit for a civil rights violation. Monell v. Department of Social Services, 436 U.S. 658 (1978), was the Supreme Court ruling that outlined when you can sue a municipality under that law. Generally, you can't sue a municipality, such as town, village, county or school district, for something that a government employee did. In other words, there is no respondeat superior in Section 1983 litigation. There are ways around this, but it's not easy. That was the lesson in Reynolds v. DeBuono, decided by the Court of Appeals on October 31, 2007.
In Reynolds, the plaintiff alleged that the State and City of New York were not properly enforcing the new welfare rules enacted in 1996. The district court agreed, finding that welfare recipients were being denied benefits improperly. The State and City were found liable for this, but only the State, and not the City, appealed. The question was whether the State was liable for the City's derelictions. In a lengthy opinion that provides a good primer on the scope of Monell liability, the Court of Appeals said no, primarily for two reasons.
First, and this is a highly technical issue, the Court joined other Circuits in holding that Monell's prohibition against respondeat superior liability applies not only when the plaintiffs seek money damages but also injunctive relief. The Court noted that this view is not unanimous around the Circuits, so the Supreme Court may someday resolve this issue. Since the Second Circuit resolved that issue in this case, that ends the debate in these parts.
Second, while Monell recognizes municipal liability where decisionmakers fail to supervise their subordinates, that's always been a difficult way to get around Monell. The plaintiff has to show that the high-ranking supervisors knew to a moral certainty that their failure to supervise would result in a rights violation. But here, according to the Court of Appeals, it was not enough for the plaintiffs to argue that the State had a "non-delegable duty" to ensure that the City was in compliance with the welfare laws. That's no different from asserting respondeat superior liability, the Court held, because it would make the State automatically responsible for the City's failures. Since plaintiffs could not otherwise show that the City's welfare policies were patently inadequate, requiring the State to intervene to ensure that the welfare policies were fairly administered, their inadequate supervision argument -- theoretically another way to get around Monell -- failed.
The moral of the story is that, once again, efforts to get around Monell's general prohibition against suing superior officers or municipalities are not easy, even when the subordinate officers have utterly failed in respecting civil rights. Relief in these cases is against the subordinate officers in their personal capacities, not the municipalities.
Monell is shorthand for a legal principle under the federal civil rights laws, particularly what we call Section 1983, which is the law that allows us to bring suit for a civil rights violation. Monell v. Department of Social Services, 436 U.S. 658 (1978), was the Supreme Court ruling that outlined when you can sue a municipality under that law. Generally, you can't sue a municipality, such as town, village, county or school district, for something that a government employee did. In other words, there is no respondeat superior in Section 1983 litigation. There are ways around this, but it's not easy. That was the lesson in Reynolds v. DeBuono, decided by the Court of Appeals on October 31, 2007.
In Reynolds, the plaintiff alleged that the State and City of New York were not properly enforcing the new welfare rules enacted in 1996. The district court agreed, finding that welfare recipients were being denied benefits improperly. The State and City were found liable for this, but only the State, and not the City, appealed. The question was whether the State was liable for the City's derelictions. In a lengthy opinion that provides a good primer on the scope of Monell liability, the Court of Appeals said no, primarily for two reasons.
First, and this is a highly technical issue, the Court joined other Circuits in holding that Monell's prohibition against respondeat superior liability applies not only when the plaintiffs seek money damages but also injunctive relief. The Court noted that this view is not unanimous around the Circuits, so the Supreme Court may someday resolve this issue. Since the Second Circuit resolved that issue in this case, that ends the debate in these parts.
Second, while Monell recognizes municipal liability where decisionmakers fail to supervise their subordinates, that's always been a difficult way to get around Monell. The plaintiff has to show that the high-ranking supervisors knew to a moral certainty that their failure to supervise would result in a rights violation. But here, according to the Court of Appeals, it was not enough for the plaintiffs to argue that the State had a "non-delegable duty" to ensure that the City was in compliance with the welfare laws. That's no different from asserting respondeat superior liability, the Court held, because it would make the State automatically responsible for the City's failures. Since plaintiffs could not otherwise show that the City's welfare policies were patently inadequate, requiring the State to intervene to ensure that the welfare policies were fairly administered, their inadequate supervision argument -- theoretically another way to get around Monell -- failed.
The moral of the story is that, once again, efforts to get around Monell's general prohibition against suing superior officers or municipalities are not easy, even when the subordinate officers have utterly failed in respecting civil rights. Relief in these cases is against the subordinate officers in their personal capacities, not the municipalities.
Monday, October 29, 2007
Doctor with staff privileges at hospital may sue under Title VII
The employment discrimination laws make it illegal to treat an employee unfairly because of race, gender, religion and other characteristics. Except that you have to be an employee in order to bring a case under Title VII, which is the statute which protects you from discriminatory treatment. If you are an independent contractor, you have no case.
That issue arose in Salamon v. Our Lady of Victory Hospital, decided on October 29. Salamon is a doctor who claimed sexual harassment and retaliation in the workplace. The trial court dismissed the case because Dr. Salamon was not an employee but an independent contractor. The Court of Appeals reversed, sending the case back for trial.
UPDATE: as of the morning of October 30, this opinion has been withdrawn without explanation. An amended opinion will follow.
The general rule is that someone is an "employee" if the employer exercises sufficient control over her workday. As the Court of Appeals puts it: "To be sure, staff physicians like Salamon have been classified as independent contractors largely because of the extent to which they control their own practices even while affiliated with a hospital. But relationships between staff physicians and the hospitals in which they work may differ. A physician's professional independence -- his or her degree of control over the manner and means of the work -- may vary. In effect, the amount of control a putative employer exerts relative to the employee necessarily falls somewhere along a continuum, an independent contractor at one end, an employee at the other."
So which is it? Was Dr. Salamon an employee or an independent contractor? She had staff privileges at the hospital and relied on its instrumentalities for her day-to-day functions and underwent hospital supervision, particularly from the quality control department. Sounds like she was an employee because the hospital controlled her employment. Except that she had some measure of control over her workday as, for example, "she was free to set her own hours and maintained her own patient load and schedule, subject to the availability of the endoscopy equipment, which the Hospital controlled. She determined which patients to see and treat, and whether or not to admit them to OLV (or another hospital). She was allowed to maintain staff privileges at other hospitals, and did, though most of her practice was at OLV. Salamon was not paid a salary, wages, benefits, or any other monetary compensation by OLV."
The Supreme Court has outlined the 13 factors in determining whether someone is an employee or independent contractor:
These factors (often applied in these cases), however, may not satisfy Title VII's proviso that the employment discrimination laws be interpreted liberally. The Court of Appeals noted that while the 13 factors are useful in resolving these cases, they are not always consistent with Title VII. The Court reasoned: "The most important factor in determining the existence of an employment relationship is that control or right of control by the employer which characterizes the relation of employer and employee and differentiates the employee or servant from the independent contractor."
Under that model, the question could go either way for someone like Dr. Salamon. As the hospital did assert control over her employment through its quality control department which monitored how she was treating patients, and she faced the possibility of negative peer reviews if she did not satisfy hospital standards, she might be an employee. Since a jury has to resolve whether the hospital exercised enough control over her employment, Dr. Salamon is entitled to a trial, and summary judgment is reversed.
That issue arose in Salamon v. Our Lady of Victory Hospital, decided on October 29. Salamon is a doctor who claimed sexual harassment and retaliation in the workplace. The trial court dismissed the case because Dr. Salamon was not an employee but an independent contractor. The Court of Appeals reversed, sending the case back for trial.
UPDATE: as of the morning of October 30, this opinion has been withdrawn without explanation. An amended opinion will follow.
The general rule is that someone is an "employee" if the employer exercises sufficient control over her workday. As the Court of Appeals puts it: "To be sure, staff physicians like Salamon have been classified as independent contractors largely because of the extent to which they control their own practices even while affiliated with a hospital. But relationships between staff physicians and the hospitals in which they work may differ. A physician's professional independence -- his or her degree of control over the manner and means of the work -- may vary. In effect, the amount of control a putative employer exerts relative to the employee necessarily falls somewhere along a continuum, an independent contractor at one end, an employee at the other."
So which is it? Was Dr. Salamon an employee or an independent contractor? She had staff privileges at the hospital and relied on its instrumentalities for her day-to-day functions and underwent hospital supervision, particularly from the quality control department. Sounds like she was an employee because the hospital controlled her employment. Except that she had some measure of control over her workday as, for example, "she was free to set her own hours and maintained her own patient load and schedule, subject to the availability of the endoscopy equipment, which the Hospital controlled. She determined which patients to see and treat, and whether or not to admit them to OLV (or another hospital). She was allowed to maintain staff privileges at other hospitals, and did, though most of her practice was at OLV. Salamon was not paid a salary, wages, benefits, or any other monetary compensation by OLV."
The Supreme Court has outlined the 13 factors in determining whether someone is an employee or independent contractor:
[1] the hiring party's right to control the manner and means by which the product is accomplished; [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party;[11] whether the hiring party is in business; [12] the provision of employee benefits; [13] and the tax treatment of the hired party.
These factors (often applied in these cases), however, may not satisfy Title VII's proviso that the employment discrimination laws be interpreted liberally. The Court of Appeals noted that while the 13 factors are useful in resolving these cases, they are not always consistent with Title VII. The Court reasoned: "The most important factor in determining the existence of an employment relationship is that control or right of control by the employer which characterizes the relation of employer and employee and differentiates the employee or servant from the independent contractor."
Under that model, the question could go either way for someone like Dr. Salamon. As the hospital did assert control over her employment through its quality control department which monitored how she was treating patients, and she faced the possibility of negative peer reviews if she did not satisfy hospital standards, she might be an employee. Since a jury has to resolve whether the hospital exercised enough control over her employment, Dr. Salamon is entitled to a trial, and summary judgment is reversed.
Wednesday, October 24, 2007
Soliciting sex from underage law enforcement decoys is against the law
It is against Federal law to attempt to solicit sex from minors. In a ruling handed down on October 22, the Court of Appeals (Walker, Calabresi and Sack) ruled that this law is violated even when a law enforcement decoy is posing as a 13 year-old girl.
The case is U.S. v. Gagliardi. The statement of facts reprises the usual sting operation in which older men solicit sex over the Internet, only to find that the girl is no girl at all but a decoy:
But "Lorie" told Gagliardi that she was afraid to meet him alone and that he should contact her friend "Julie," another law enforcement decoy whom Gagliardi also propositioned. When Gagliardi showed up to meet "Lorie" and "Julie," he encountered law enforcement who arrested him and found two condoms and Viagra in his car.
Joining six other Federal circuit courts on the issue, the Second Circuit ruled that the law does not require that Gagliardi actually communicate with minors. It is enough for him to believe that he was propositioning minors even though he was actually communicating with law enforcement. Gagliardi cannot raise the defense of "factual impossibility" to an attempt charge, and his creative use of the legislative history behind the statute he violated -- always a Hail Mary in these cases -- was rejected as well. Moral of the story: don't try to have sex with minors.
The case is U.S. v. Gagliardi. The statement of facts reprises the usual sting operation in which older men solicit sex over the Internet, only to find that the girl is no girl at all but a decoy:
On July 7, 2005, Gagliardi, then sixty-two years old, entered an Internet chat room called “I Love Older Men” and initiated an instant-message conversation with “Lorie,” an adult government informant posing as a thirteen-year-old girl under the screen name “Teen2HoT4u.” The informant was a private citizen who had previously assisted the Federal Bureau of Investigation (“FBI”) in identifying child predators on the Internet. During this initial conversation, Gagliardi tried to verify that Lorie was in fact thirteen years old and broached the topic of sex. Gagliardi contacted Lorie again on August 29, 2005 and had the first of many online conversations in which he expressed his desire to have sex with her and used sexually explicit language to describe the acts he wished to perform with her. Gagliardi even offered to pay Lorie $200 to have sex with him, before telling her, “I want to meet you . . . make love to me anytime . . . no strings attached.” In the following weeks, Gagliardi repeatedly tried to convince Lorie to meet him in person,
asking her to “tell me where is good for you, I come to pick you up,” or offering to meet her in a public place.
But "Lorie" told Gagliardi that she was afraid to meet him alone and that he should contact her friend "Julie," another law enforcement decoy whom Gagliardi also propositioned. When Gagliardi showed up to meet "Lorie" and "Julie," he encountered law enforcement who arrested him and found two condoms and Viagra in his car.
Joining six other Federal circuit courts on the issue, the Second Circuit ruled that the law does not require that Gagliardi actually communicate with minors. It is enough for him to believe that he was propositioning minors even though he was actually communicating with law enforcement. Gagliardi cannot raise the defense of "factual impossibility" to an attempt charge, and his creative use of the legislative history behind the statute he violated -- always a Hail Mary in these cases -- was rejected as well. Moral of the story: don't try to have sex with minors.
Monday, October 22, 2007
Qualified immunity means never having to say you're sorry
Any civil rights lawyer knows about qualified immunity. It can surface on a motion to dismiss and turn a great case into a dead case when you least expect it. Qualified immunity means that public officials can win the case even if they broke the law. If the state of the law was uncertain when the defendant violated your constitutional rights, he wins the case, even if 20-20 hindsight makes it clear that he violated a constitutional provision. Then the courts put qualified immunity back into the attic, and it resurfaces when we least expect it.
This time around, the Court of Appeals ruled that two police officers violated the Fourth Amendment in searching a residence without a warrant. But they were immune from suit because the law was unclear at the time of the violation that their actions were unconstitutional.
The case is Moore v. Andreno. The Court of Appeals (Walker, Sack and Daniels) opened the opinion as follows:
It all started when girlfriend went to boyfriend's house to retrieve her belongings when the relationship went sour. Girlfriend was worried that violent boyfriend was on his way home and that he would resort to violence. So girlfriend called the police in a panic, and they entered the house intending to defuse the pending firestorm. As the Second Circuit noted,
Thanks to girlfriend's drug tip, boyfriend was arrested for drug possession. But the criminal court granted his motion to suppress the illegally-seized evidence. He filed a lawsuit against the police for the unlawful search. The district court held that boyfriend had a case. The Court of Appeals reversed on qualified immunity grounds. While the Court of Appeals noted that warrantless searches are presumed unconstitutional, the law gets murky when third parties give consent to search without a warrant.
The Circuit noted that, in Georgia v. Randolph, 547 U.S. 103 (2006), the Supreme Court held that "a search conducted on the basis of one co-tenant’s consent is unreasonable as to a physically present and objecting co-tenant. In doing so, however, Randolph emphasized that the reasonableness of a consent search is informed by “widely shared social expectations.” For example, “[a] person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant.”
While, according to the Court of Appeals, the police in this case violated the Fourth Amendment in allowing girlfriend to "consent" to the warrantless search (as she did not actually have control over the premises and it was not her residence), at the time of the search, it was not clearly established through case law that a search like this was illegal. On one hand, girlfriend broke the locks to gain access to the study, where boyfriend's drugs were found. On the other hand, the police may have thought that she was in the study to rightfully get back her belongings, which could validate her consent. When the case law is murky and the police could reasonably disagree about the legality of the search, they get the benefit of the doubt. The law on third party consent for a warrantless search was too unclear to hold the police legally responsible, even if their actions in hindsight were illegal. Boyfriend may want an apology for the unlawful search (not to mention money damages), but qualified immunity means never having to say you're sorry.
This time around, the Court of Appeals ruled that two police officers violated the Fourth Amendment in searching a residence without a warrant. But they were immune from suit because the law was unclear at the time of the violation that their actions were unconstitutional.
The case is Moore v. Andreno. The Court of Appeals (Walker, Sack and Daniels) opened the opinion as follows:
Courts have long acknowledged that a person has the right to establish a private sanctum in a shared home, a place to which he alone may admit or refuse to admit visitors. Yet, with the recurrence of domestic violence in our society, we are loath to assume that a man may readily threaten his girlfriend, take her belongings, lock her out of part of his house, and then invoke the Fourth Amendment to shield his actions. Deputies Joseph A. Andreno and Kurt R. Palmer, responding to an emergency call, were faced with reconciling these two competing interests. While
they misapplied the relevant constitutional calculus, they are police officers, not lawyers or mathematicians. And thus, because the law governing the authority of a third party to consent to the search of an area under the predominant control of another is unsettled, and because Deputies Andreno and Palmer made a reasonable mistake in applying that law to the situation with which they were confronted, the district court erred in denying them summary judgment on qualified immunity grounds.
It all started when girlfriend went to boyfriend's house to retrieve her belongings when the relationship went sour. Girlfriend was worried that violent boyfriend was on his way home and that he would resort to violence. So girlfriend called the police in a panic, and they entered the house intending to defuse the pending firestorm. As the Second Circuit noted,
Upon their arrival, a “hysterical” [girlfriend] requested the Deputies’ assistance in retrieving her belongings from Moore’s study. She explained that she feared that Moore might return at any moment. She also informed the Deputies that she “wasn’t allowed in th[e] [study] unless [Moore] was there” and that she had cut the locks off the door. She may also have informed them that the Deputies were likely to find marijuana in the study.
Thanks to girlfriend's drug tip, boyfriend was arrested for drug possession. But the criminal court granted his motion to suppress the illegally-seized evidence. He filed a lawsuit against the police for the unlawful search. The district court held that boyfriend had a case. The Court of Appeals reversed on qualified immunity grounds. While the Court of Appeals noted that warrantless searches are presumed unconstitutional, the law gets murky when third parties give consent to search without a warrant.
The Circuit noted that, in Georgia v. Randolph, 547 U.S. 103 (2006), the Supreme Court held that "a search conducted on the basis of one co-tenant’s consent is unreasonable as to a physically present and objecting co-tenant. In doing so, however, Randolph emphasized that the reasonableness of a consent search is informed by “widely shared social expectations.” For example, “[a] person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant.”
While, according to the Court of Appeals, the police in this case violated the Fourth Amendment in allowing girlfriend to "consent" to the warrantless search (as she did not actually have control over the premises and it was not her residence), at the time of the search, it was not clearly established through case law that a search like this was illegal. On one hand, girlfriend broke the locks to gain access to the study, where boyfriend's drugs were found. On the other hand, the police may have thought that she was in the study to rightfully get back her belongings, which could validate her consent. When the case law is murky and the police could reasonably disagree about the legality of the search, they get the benefit of the doubt. The law on third party consent for a warrantless search was too unclear to hold the police legally responsible, even if their actions in hindsight were illegal. Boyfriend may want an apology for the unlawful search (not to mention money damages), but qualified immunity means never having to say you're sorry.
Friday, October 19, 2007
Court reinstates 9/11 coerced confession decison
On Thursday the Court of Appeals did something very unusual. Withing several hours, it posted and then withdrew a lengthy opinion. We all wondered what happened. Then it was reported on the How Appealing blog that the Court withdrew the opinion because it contained sensitive information under seal in connection with the 9/11 terror attacks. My discussion of that decision is here.
The revised opinion in Higazy v. Templeton, posted on Friday morning, is here. On page 7 of the decision, the Court writes:
The revised opinion in Higazy v. Templeton, posted on Friday morning, is here. On page 7 of the decision, the Court writes:
Higazy alleges that during the polygraph, Templeton told him that he should ooperate
. . .
This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy's statements were coerced.
So what the court did was to omit facts about the coerced confession having to do with how the FBI defendant got the plaintiff to confess to the crime that he didn't commit. I have never seen an explicit redaction in a court decision before. But if, as they say, 9/11 changed everything, then it creates this new procedure of explicitly advising the reader that parts of the decision cannot be read by anyone.
Interesting side-note. Although the Court of Appeals asked the How Appealing blog to withdraw its link to the original decision which contained the sensitive information, How Appealing did not comply with that request. So the decision remains on line through the How Appealing blog for anyone to read.
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