Sloth-like permit process for guns may violate Due Process Clause

Service at the gun counter was rotten. As rotten as asking a teenage worker at Stop And Shop to check in the back room to look for any more sale items. That's when teenage Johnnie goes on his lunch break, and you are standing in Aisle 7 waiting for assistance.

That's what it felt like for M. Peter Kuck, who went to the Connecticut Department of Public Safety to renew his gun permit. Kuck refused to provide documents to verify his citizenship, an insulting requirement in his view, so he appealed to Board of Firearms Permit Examiners. The problem for Kuck was that there was no sense of urgency at the Board, which takes forever to process the appeals. So long, in fact, that the Board may be violating the Due Process Clause.

The case is Kuck v. Danaher, decided on March 23. Kuck's permit appeal was not scheduled to be heard for 18 months. Under the Due Process Clause, "a delay amounts to a due process violation only where it renders the prescribed procedures meaningless in relation to the private interests at stake," the Court of Appeals tells us. While the courts will tolerate a relatively brief administrative delay that takes into account the bureaucratic workload, there are limits to the court's patience.

The courts resolve these disputes by weighing the citizen's property or liberty interest against the risk of erroneous deprivation of that interest as well as government's interest in maintaining these procedures. We call this the Matthews balancing test, named after a Supreme Court ruling from 1976. At this stage of the case (the district court dismissed Kuck's complaint without any pre-trial discovery), the Second Circuit (Parker, Straub and Livingston) says that the state may have violated Kuck's due process rights. While Kuck's right to gun ownership is not as pressing as the need for a vehicle to drive to work or any interference with his livelihood, Connecticut law does provide for the right to own a gun, "an interest that is highly valued by many of the state's citizens," Judge Parker writes. Kuck also convinces the Court of Appeals that DPS often denies these permits after non-trivial delays for bogus reasons, a factor that also tips the Matthews test in his favor. While the state has a compelling interest in making sure that guns don't wind up in the wrong hands, the state cannot dismiss this case simply by arguing "that public safety is important and appeals have gotten backed up." As the Court of Appeals concludes, "the State gives no account of how or why public safety requires unsuccessful applicants to wait a year-and-a-half for an appeal hearing."

Judge Straub calls out the Second Circuit in qualified immunity

Qualified immunity is no joke. If you bring a Section 1983 case, the individual defendants may be entitled to qualified immunity if their actions were objectionably reasonable even if, in hindsight, the defendant violated the Constitution. A few years ago, Judge Sotomayor suggested that the Second Circuit has been misinterpreting the Supreme Court's qualified immunity case law. Judge Sotomayor now sits on the Supreme Court, but Judge Straub on the Second Circuit is now carrying the torch.

The case is Taravella v. Town of Wolcott, decided on March 16. The Court of Appeals (Jacobs and Hall) holds that the plaintiff cannot proceed with his procedural due process case arising from his employment dispute with the Town. Not the most intriguing case in the world ... except that Judge Straub dissents on the merits and also suggests the Second Circuit's qualified immunity rules miss the bullseye.

The Second Circuit's current qualified immunity doctrine reads like this:

A government official sued in his individual capacity ... is entitled to qualified immunity in any of three circumstances: (1) if the conduct attributed to him is not prohibited by federal law ... ; or (2) where that conduct is so prohibited, if the plaintiff’s right not to be subjected to such conduct by the defendant was not clearly established at the time of the conduct ... ; or (3) if the defendant’s action was objectively legally reasonable ... in light of the legal rules that were clearly established at the time it was taken. X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir. 1999)

This means that even if the governing case law was clearly established (and in hindsight it looks like the defendant broke the law), that defendant can still avoid liability if his actions were objectively reasonable. Judge Straub has given this a lot of thought. Other Second Circuit cases only describe qualified immunity in two steps, i.e., whether the defendant's conduct was prohibited by law and whether the case law at the time was clearly established on that point. The objective reasonableness prong is sometimes omitted from the analysis in Second Circuit cases. It is the objective reasonablness angle which prompts judges to dismiss a lot of Section 1983 cases on the basis that the defendant acted reasonably at the time on the basis of facts known to him, i.e., he was confronted with a strange or urgent set of circumstances and used his reasonable judgment.

As Judge Sotomayor noted in her concurrence in Walczyk v. Rio, 496 F.3d 139, 166 (2d Cir. 2007), the "objective reasonablness" prong finds no support in Supreme Court case law and the Second Circuit is therefore erecting an additional hurdle for plaintiffs in civil rights cases. Judge Straub now adopts Judge Sotomayor's take on this issue, highlighting an inconsistency between Second Circuit and Supreme Court decisions and even an inconsistency in the Second Circuit, depending on the panel hearing the case. The case law in this area remains muddled, Judge Straub notes. This lack of clarity cries out for full Second Circuit review, Judge Straub suggests, summarizing his views as follows:

I attempt to call our Court’s attention to the apparent long-standing inconsistency in our case law regarding the proper standard for analyzing qualified immunity claims. We should — and it is my hope that we soon will — resolve this inconsistency by holding that qualified immunity is decided in accordance with a two-step analysis: (1) a court must determine whether the facts, taken in the light most favorable to the party asserting the injury, show that the state official’s conduct violated a constitutional right; and (2) even if a constitutional violation can be made out on a favorable view of the submissions, the official is entitled to immunity if the right was not clearly established.

It's not easy to open a neighborhood sex shop

The First Amendment prevents towns and villages from outlawing sex shops, but the courts give them a fair amount of leeway to regulate their location. A recent Second Circuit case gives you a good primer on the rules of the road.

The case is TJS of New York v. Town of Smithtown, decided on March 10. I would guess that the average person does not want this "filth" in his neighborhood. On the other hand, someone is obviously frequenting these adult entertainment places, or they would not be in business. Unless the mayor is a customer, there is no easy way to reconcile these competing issues.

First things first. The Court of Appeals (Calabresi, Winter and Sack) outlines the Supreme Court's framework for evaluating the legality of restrictions on these businesses. Municipalities can regulate these places so long as they leave open "reasonable avenues of communication for adult-only businesses." Normally, you can find them on the edge of town somewhere. These alternative locations have to provide a "reasonable opportunity to locate and operate such a business."

The first question is one that the Second Circuit has never resolved: what is the time frame in determining whether the town is providing a reasonable alternative for these businesses. Do we look to whether there were any such locations when the law was passed, or is that question answered when the lawsuit is filed? The operative time frame is when the lawsuit is filed. This means that the regulation could be constitutional when the town passed it in 1974, but subsequent development and construction may render the regulation unconstitutional in 2010 if there are no good places left for the adults-only nightclub. Although the Town argues that this new rule will over time permit repeated lawsuits against the same law, Judge Calabresi provides the benefits of this new rule:

Although the rule we endorse today might in some circumstances open ordinances up to more than one attack, it would only do so if there were significant changes in the surrounding community. And the burden of pleading and proving such charges with particularity could well be put on the plaintiff. Furthermore, the implications of the reverse rule would be constitutionally troubling. If the only relevant question were whether an ordinance provided adequate alternatives on the day of its passage, any law that did so would thereafter be immune from First Amendment challenge. And speech that the Supreme Court has held to be protected by that Amendment would be silenced. Conversely, a strict time-of-passage rule might arguably make it impossible for a city to save a constitutionally deficient ordinance: post-enactment remedial measures taken by a city to make alternative sites more available (such as opening new land to development) would, in theory, seem to be just as constitutionally irrelevant as developments limiting the availability of such alternatives. Our holding avoids these perverse results.

So TJS of New York makes it easier for other adult-only businesses to operate in your hometown. But TJS is unable to win this case as to its own business ambitions. Although the Town has to make space available for these businesses, it does not have to provide them the best possible locations. "Where the physical features of a site or the manner in which it has been developed are 'totally incompatible with any average commercial business,' or the site lacks the basic infrastructure that is a precondition to private development, it should not be considered part of the relevant real estate market for purposes of determining availability." On the other hand, "whether or not sites fit the specific needs of adult businesses ... is constitutionally irrelevant."

While TJS says that the Town has to make available land that would be compatible with other businesses sharing similar physical characteristics (such as Blockbuster Video, CVS Pharmacy or Wendy's), that is not the law. If the available land is too large or too small for the adult-only business, that's just too bad. "Obstacles such as the possibility of 'making due with less space than one desired,' or 'having to purchase a larger lot than one needs,' do not render property unavailable for the purpose of constitutional analysis. Alternative sites need only be available, not attractive."

Another case falls into the Garcetti graveyard

Things changed when the Supreme Court in 2006 tightened up the legal standards governing the rights of public employees who speak out on the job. The old formulation was that you can't suffer retaliation for speaking out on matters of public concern. The new test, in Garcetti v. Ceballos, 547 U.S. 410 (2006), is that speech arising from your "official duties" is not protected speech, no matter how important the subject matter.

The Garcetti cases are now starting to trickle in from the Second Circuit. A few months ago, the Court of Appeals rejected a First Amendment retaliation case where a public school teacher filed a grievance complaining about how the school disciplined an unruly student. (Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010)). This time around, the Court of Appeals rejects a case where a public employee advocated on behalf of a subordinate who complained about profiteering on public property.

The case is Huth v. Haslin, decided on March 11. Huth was the supervisor. Archer was the subordinate who told Huth that Thruway employees were selling bootleg DVD's on Thruway Authority premises. Archer also told Huth that a supervisor was engaging in reverse discrimination in the workplace. Huth conveyed this information to her supervisor, Bloomer. The Thruway Authority then accused Huth of unrelated misconduct, prompting her to bring a lawsuit. Afterwards, the Thruway Authority demoted Huth, which led to an amended complaint alleging that she was demoted in retaliation for the lawsuit.

Huth's case fails for two reasons. First, the Court of Appeals (Cabranes, Hall and Stein [D.J.], tells us, "Huth passed along Archer’s concerns about the actions of certain Thruway Authority employees to the head of Huth’s division and that she did so at daily meetings when they discussed the employees in their division. We have no difficulty concluding that such speech was made not as a 'citizen' but, rather, pursuant to Huth’s official duties as a Thruway Authority employee and supervisor."

But what about the lawsuit? Doesn't it violate the First Amendment to suffer demotion in retaliation for challenging an (allegedly) false charge of misconduct leveled against her in retaliation for reporting a subordinate's complaint about illegal behavior at work? In other words, does the initial lawsuit alleging retaliation for reporting illegal conduct qualify as First Amendment activity? This may surprise you, but the answer is no. The lawsuit was not protected activity under the First Amendment. The Second Circuit summarizes its reasoning:

The record also makes plain that Huth’s present lawsuit, asserting claims for monetary and punitive damages, does not qualify as speech "on a matter of public concern." Huth’s original complaint, which she contends was protected speech and the basis for defendants’ further retaliation, alleged only that defendants retaliated against her for specific statements she made to her supervisor and for the union activities of Archer. Much like other public employee speech that we have held not to be protected from retaliation by the First Amendment, Huth’s lawsuit was "personal in nature and generally related to her own situation.”

Why is this so? Because Huth's lawsuit did not reflect that she "wanted to debate issues of ... discrimination, that her suit sought relief against pervasive or systemic misconduct by a public agency or public officials, or that her suit was part of an overall effort ... to correct allegedly unlawful practices or bring them to public attention.” Since the original complaint was personal in nature and was not part of a broader effort to grieve systemic problems in the workplace, it does not qualify as First Amendment activity.

Sex offender does not have due process claim

I would guess that due process claims are among the hardest to win in the federal courts. Many claims die because the plaintiff does not have a property or liberty interest, the deprivation of which is necessary for the government to provide you fair process. Other cases die because the availability of an Article 78 under New York law (an expedited lawsuit in the state courts) is by itself due process. Sometimes, due process claims arising from reputational damage are allowed to proceed, but the legal requirements for those claims are so difficult that these "stigma plus" claims routinely die an orderly death, probably because the court think these cases are nothing more than routine defamation cases cloaked in constitutional language.

The case is Vega v. Lantz, decided on March 2. No, due process claims are not for everyone, and they sure as hell are not for Vega, an inmate who was sentenced to a very long jail term after a jury convicted him of some of the worst sex-related crimes imaginable. I would imagine that the Court of Appeals (Sack, Parker and Goldberg [D.J.], initially reacted that way when they reviewed the record in this case. Then they realized they are trained professionals and must resolve the case properly.

Stigma-plus cases are a due process offshoot. You can challenge the fairness of government classifications or statements that ruin your reputation. Vega was classified as a sex offender, which "exposed him to harassment from prison officials and other inmates, as well as a denial of access to various programs such as one that permitted him to tutor other inmates." His argument was that he was not actually acquitted of any sexual offense but, instead, assault in the first degree and kidnapping. The district court ruled in his favor, but the Court of Appeals reverses.

As the Second Circuit notes, "while it may be the case that, in certain circumstances, misclassification as a sex offender results in stigma plus, this possibility is of no particular assistance to Vega because he has not established a threshold requirement – the existence of a reputation-tarnishing statement that is false. ... Vega has not alleged that the conduct underlying his conviction for assault – the removal of a teenage girl’s nipple and the forcing her to swallow it – did not occur. Nor has Vega alleged that Department officials were unreasonable in classifying this conviction a 'sexual offense' that involved 'physical conduct.'"

The 30-day deadline to appeal is sacrosanct

Weekends are sacrosanct. So are deadlines. In particular, deadlines for filing the notice of appeal. There is nothing easier than typing up the notice of appeal. You probably have an old notice of appeal in your computer anyway. Just change the caption. Then attach the judgment and a check for $455 and send it to the district court.

The case is Napoli v. Town of New Windsor, decided on March 29. This case alleges that the Town violated a public employee's First Amendment rights. After the district court denied qualified immunity for the named defendant, his lawyer asked the judge in writing to clarify the decision, i.e., whether the Town Supervisor was a policymaker under Monell v. Department of Social Services, 436 U.S. 658 (1978). The district court ruled in plaintiff's favor on these post-motion inquiries.

Qualified immunity denials entitle you to an immediate appeal, even before trial. But you only have 30 days to file a notice of appeal. Those 30 days can fly past you like a summer's day. It's a jurisdictional deadline, so the ease with which you can prepare the notice of appeal is nothing compared to the devastation of missing the deadline by even one day. There are few grounds for an extension, and you should not really count on the district court granting you one.

What happened here was that the defendant did not file the notice of appeal within 30 days of the qualified immunity decision. He did so after the district court resolved the post-motion inquiries. This was too late. The rule is that "when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered ... the period within which an appeal must be taken ... begins to run anew." This exception does not apply here. The district court's post-summary judgment ruling did not mention or seek to clarify the qualified immunity decision but, instead, raised unrelated issues, i.e., Monell liability. "The district court's clarification of issues completely unrelated to qualified immunity did not start the time in which defendants can seek an interlocutory appeal."

This issue may seem clear, but the Second Circuit (Pooler, Raggi and Livingston) relies on cases from around the Circuits for the proposition that an unrelated clarification does not start the time for a notice of appeal. If the law was not clear in the Second Circuit prior to this case, it is now.

Workplace retaliation case survives summary judgment

Retaliation cases can go to trial on the basis of circumstantial evidence, but nothing helps a retaliation case like direct evidence. That's why the City of Amsterdam is going to trial in Angelita Kercado-Clymer's case.

The case is Kercado-Clymer v. City of Amsterdam, a summary order decided on March 25. Plaintiff's hostile work environment did not survive appeal, but her retaliation claim does.

Here is the well-known legal standard for retaliation: To establish a prima facie case of Title VII retaliation, a plaintiff must show (1) “participation in a protected activity known to the defendant,” (2) “an employment action disadvantaging the plaintiff,” and (3) “a causal connection between the protected activity and the adverse employment action.” Supervisor Brownell knew that plaintiff filed a discrimination complaint with the local human rights agency. Shortly after plaintiff exercised her rights, Brownell began taking it out on her. The Court of Appeals summarizes the evidence:

[A] month after she filed the complaint, Brownell caused Kercado-Clymer to receive a counseling memorandum and then several months later he initiated disciplinary charges against her for driving the wrong way down a one-way street leading to her loss of accrued vacation time. He also banned her from desk duty during the week. A reasonable trier of fact could find that the counseling memorandum, disciplinary charges, loss of accrued vacation, and ban from desk duty could all dissuade a reasonable worker from making or supporting a charge of discrimination.

The above snippet is the circumstantial evidence. But there is also direct evidence in the form of Brownell's hostile statements to the press. He said that Kercado-Clymer is “a chronic complainer,” “professional victim,” and “one of [his] worst employees” who “blatantly lied,” “was never qualified to be hired,” “has always demanded special treatment,” “and can’t be trusted,” following her filing of this suit, and the testimony of a male officer that Brownell has a reputation for being vindictive.

Although the Court of Appeals issued this decision as a summary order (and not a precedential published opinion), this case is a little more interesting than you might think. First, as noted above, the Court of Appeals deems it relevant that a co-worker testified about Brownell's vindictive reputation. That evidence is certainly music to the ears of plaintiffs' attorneys, but I'm sure the City will file a motion in limine to exclude this evidence at trial on the basis that reputational evidence violates Fed.R.Evid. 404, which prohibits propensity evidence. Then again, if the Second Circuit treats this as relevant evidence, the district court may very well deny the City's motion.

Another quirk is that this retaliation case was filed under 42 U.S.C. sec. 1983, which enforces the Equal Protection Clause. But courts have held that non-First Amendment retaliation cases (i.e., cases like this one which mirror retaliation cases filed under Title VII) cannot support an Equal Protection claim. It's not clear to me how this claim made it this far. As the Second Circuit held in 1993, "it has been assumed in this Circuit that a § 1983 claim is not precluded by a concurrent Title VII claim, when the former is based on substantive rights distinct from Title VII. A plaintiff cannot use Section 1983 to gain perceived advantages not available to a Title VII claimant, but a plaintiff can assert a claim under Section 1983 if some law other than Title VII is the source of the right alleged to have been denied." Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d Cir. 1993).