Some tragedies have no federal remedy

The Harrington family certainly went through hell and back. Their son was killed in a head-on car accident in Brookhaven, Long Island. They sued the Suffolk County Police Department, alleging that law enforcement's investigation into the accident was so deficient as to violate the due process clause.

The case is Harrington v. County of Suffolk, decided on June 4. As the Court of Appeals (Cabranes, Katzmann and Chin) tells us, the lawsuit claims that "the investigation that followed was inadequate in a number of respects. First, because of heavy rain, the responding officers allegedly conducted their investigation from a nearby diner rather than thoroughly combing the scene of the accident for evidence. Plaintiffs also allege that defendants, among other things, (1) failed to ascertain whether Guillaume had been under the influence of drugs or alcohol at the time of the accident, (2) failed to obtain a toxicology report, (3) failed to indicate in the police report that Guillaume was uninsured, and (4) improperly attributed the accident to weather conditions."

So is this a federal case? In order to have a claim under the due process clause, you need to show that the government denied a property or liberty interest without due process. The family says the property interest here is "receiving adequate police services" and a "proper and adequate investigation of the accident."

This is not a federal case. While property interests derive from a legitimate entitlement to state-created understandings or rules, that entitlement must be concrete and unique to the plaintiff/victim. It is not enough to show that the police department requires its officers to protect the community and enforce all laws and ordinances. Some discretion is inherent in all police work, and that discretion takes cases like this out of the due process universe. And the Supreme Court held in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) that “the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its ‘substantive’ manifestations.”

Get this man an attorney!

I've seen my share of resourceful jailhouse lawyers, but there's no substitute for a lawyer who knows what he's doing. That's why the Second Circuit maintains a pro bono program, where lawyers volunteer their time to work on interesting cases. Not every pro se case warrants assignment from the pro bono panel, but this prisoners' rights case does.

The case is Johnston v. Genessee County Sheriff, decided on May 21. Johnson's in the slammer, and I mean the slammer, i.e., solitary confinement. He claims that his detention violated the Constitution because he was subjected to excessive force and the jail did not provide him a hearing prior to his confinement to fairly determine if he violated any jailhouse rules (we call this a "pre-deprivation hearing").

Johnson does not have a case unless he was a pre-trial detainee at the time of his confinement. Pre-trial detainees are not yet guilty of anything; they are in jail maybe because they cannot make bail and are otherwise waiting for trial on the charges that got them arrested. Since they are not yet guilty, pre-trial detainees have more rights than convicts. Pre-trial detainees also have greater rights not to be beaten up in jail.

This is one of the rare cases that outlines the factors relevant to the appointment of pro bono counsel. The case has to be legally sophisticated enough to justify assigning the plaintiff a lawyer. On one hand, the Court knows that a lawyer's time is precious. On the other hand, the Court notes, "counsel will be in a far better position to assist the litigant and the court than will the judge who chooses to struggle with an unlearned and sometimes barely literate prisoner."

The Court of Appeals (Pooler, Parker and Jacobs) is not sure if Johnson was a pre-trial detainee. Since this threshold issue makes all the difference, the Court of Appeals decides he is entitled to pro bono counsel for the purposes of determining if Johnson had any rights under the Constitution. If he did, then pro bono counsel will develop the sophisticated legal arguments concerning whether the confinement was serious enough to warrant a hearing before Johnson was placed into solitary. If Johnson was not a pre-trial detainee, then pro bono counsel's appointment is discontinued.

Hearsay exceptions allow plaintiff to argue that obesity is a protected disability

Hearsay is a tricky thing. That's why evidence class in law school spends so much time on it. Here's a real-life example of how hearsay works, and the Court of Appeals provides that analysis in an interesting disability discrimination claim alleging that obesity is a protected disability under the New York City Human Rights Law.

The case is Speigel v. Schulmann, decided on May 6. (The case is also notable for holding that the Americans With Disabilities Act does not provide for individual liability in retaliation claims).

Speigel argues that he was fired from a karate school because of his weight. Defendant says that Speigel was fired because of job performance. This is the classic dispute in employment discrimination cases. You can get around management's defense with direct evidence of discriminatory intent. Speigel has it, but the district court threw out the case under the hearsay rules.

The first hearsay issue looks like an easy one. Spiegel testified that Schulmann told him that he was fired because of his weight. In dismissing this case on summary judgment, the district court somehow overlooked this evidence. Since Schulmann has an ownership interest in the business and he's a party to the lawsuit, it's a party-opponent admission under Rule 801(d)(2)(A) of the Federal Rules of Evidence.

The other hearsay problem is that Spiegel testified that Vincent Gravina, the leader of the Center at the time of plaintiff's termination, told him that the termination was based on his weight. The district court said this was inadmissible hearsay, but it isn't, the Court of Appeals (Hall and Livingston) says. Gravina and Schulmann were co-owners of the corporation that owned the school. According to plaintiff, Gravina said he was told to fire him because of his weight. That's enough for the Court of Appeals to find that plaintiff can win the case:

The relationship between Gravina and Schulmann, as well as Schulmann's direction to another center's owner to fire Spiegel, creates the inference that Gravina was acting as Schulmann's agent or servant when he told Spiegel that the termination was based on Spiegel's weight. If this inference is drawn in the Plaintiff's favor, Spiegel's description of Gravina's statement is admissible against Schulmann as the statement of his agent or servant, made during the existence of the relationship between Gravina and Schulmann.

The final tricky issue here is whether obesity is a protected disability under the New York City Human Rights Law. The Americans With Disabilities Act and New York State Human Rights Law does not protect plaintiff. But courts are beginning to recognize that the New York City Human Rights Law provides broader protections to employees than the Federal and State counterpart. This issue is sent back to the district court to think it over light of the broad definition of "disability" under that law and the New York City Council's intent that "analysis [of NYCHRL provisions] must be targeted to understanding and fulfilling what the statute characterizes as the City HRL’s ‘uniquely broad and remedial’ purposes, which go beyond those of counterpart State or federal civil rights laws.”

Garcetti snags another whistleblower claim

To put it mildly, things changed after the Supreme Court issued Garcetti v. Ceballos, 547 U.S. 410 (2006), holding that the First Amendment does not protect public employee speech or whistleblowing if the speech is made pursuant to the plaintiff's "official duties." The lower courts are now grappling with the meaning of "official duties speech," and cases that would have gone to trial only a few years ago are now being dismissed.

The case is Drolett v. DeMarco, a summary order decided on June 16. Drolett was a police officer in Town of East Windsor, Connecticut. Management had in place a "chain of command" dictating how the officers were to raise their concerns about the department. Drolett did not follow that chain of command when he sent an anonymous letter to the local police commission criticizing the department's personnel and other practices. An example of Drolett's criticisms is the following statement: "Many shifts are without supervisors or even experienced officers because some people are not required to work their scheduled shifts. They are even handed the opportunity to get off them." Management eventually figured out that Drolett had written the letter and it disciplined him for this speech, triggering this First Amendment lawsuit.

Pre-Garcetti, Drolett's letter raised matters of public concern. The district court certainly thought so, denying the summary judgment motion on that ground. The district court also held that Garcetti did not compel dismissal of this case because it was not clear whether Drolett's speech was pursuant to his official duties. The district court reasoned, "there is no evidence that Drolett's official duties included complaining about all kinds of workplace mismanagement, whatever the context in which those complaints were made." In particular, the in-house speech rules did not compel Drolett to make complaints; he was only permitted to do so. For plaintiffs' lawyers in the Second Circuit, this was not a bad ruling from the district court in that it provided language that would allow them to get around Garcetti's holding. The district court's ruling on this issue is now a nullity.

Unhappy with this ruling, the Town filed an interlocutory appeal on qualified immunity grounds. You can take up an early appeal if the law was not clearly-established and defendant therefore did not know for sure that it was violating plaintiff's constitutional liberties.

In a summary order, the Court of Appeals rejects the district court's analysis and dismisses the complaint, at least as to the individual defendants who asserted qualified immunity. The Court (Cabranes, Hall and Raggi) reasons as follows:

[T]hough Drolett had a duty to raise his concerns about the management of the police department within the chain of command, he did not do so. Instead, he raised his concerns outside the chain of command. Had Drolett raised his concerns within the chain of command, that speech likely would have been made 'pursuant to his official duties,' and therefore not protected by the First Amendment. The courts have yet to consider whether speech that would not enjoy First Amendment protection if made pursuant to an official duty can claim such protection when made in violation of that duty. We therefore conclude that even if the actions of defendants did violate Drolett's First Amendment rights, those rights were not clearly established at the time of the discipline. Accordingly, we conclude that defendants are entitled to qualified immunity.

The ruling by the Court of Appeals is short and does not tell us the underlying facts. For that you have to read the district court opinion, which places this case in context. The takeaway is that the First Amendment may not protect you from discipline if you speak out of turn at work on important public matters. Based on language in the Garcetti decision, there was a view among Garcetti litigators that speech outside the workplace that related to official duties may get around Garcetti. That argument seems to be impliedly rejected by the Second Circuit. The Circuit further rejects the district court's view that factual disputes exist as to whether Drolett blew the whistle pursuant to his official duties. In reaching this finding, the Court of Appeals impliedly rejects another court ruling (cited in the district court's analysis) that plaintiff's lawyers cite from time to time, Kodrea v. City of Kokomo, 458 F. Supp. 2d 857 (S.D. Ind. 2007). The Second Circuit also treats as a unique issue (sufficient to confer immunity among defendants) whether speaking outside the chain-of-command constitutes a clearly defined act of free speech.

Trial tip: preserve your objections

Cases are won or lost at trial. Appeals are much harder to win after you've lost at trial. If you want to win the appeal, you had better preserve your objection. Otherwise, spend the $455 appellate filing fee on something else.

The case is Tirreno v, Mott, a summary order decided on April 30. This case took forever to reach the Second Circuit, for some reason. The jury verdict was in December 2007. More than two years later, the Second Circuit gets the case. Plaintiffs claimed that the municipal defendants effected an unreasonable search and seizure in violation of the Fourth Amendment. The argument on appeal is that the trial court did not instruct the jury that the defendant has the burden of showing that plaintiffs consented to the search.

There is no dispute that the plaintiffs did not object to the disputed jury instruction. This means they have to prove "plain error" on appeal, a much harder standard of review, amost impossible. It's not possible here. It can't be plain error because the law is not even clear that one party or the other has to prove at trial that the plaintiff did not consent to the search. In Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991), the Second Circuit rejected the argument that the defendant bears that burden. But the Court of Appeals may have reached a contrary holding in Anobile v. Pelligrino, 303 F.3d 107 (2d Cir. 2002).

The tension between these two cases will have to be untangled on some other day. For now, it's enough for the Court of Appeals (Raggi and Hall) to say that it cannot be "plain error" for the trial court to reject plaintiff's instruction on this issue without an objection at trial, particularly since the trial court engaged the parties in a thoughtful discussion about the jury charge during trial, and this issue did not even come up.

This is a good time to say that trials are not just about the facts. They are about the law. Some lawyers go into trial focused on the facts, and they take a cursory view on the law. But the jury instructions are important, and some juries go over the instructions with a fine-tooth comb, particularly if the judge gives the jury a copy of the instructions. When the judge holds the charge conference to talk about the jury instructions with counsel, grab your research folder and ask the court to conform the charge to your liking. The court may reject your argument, but that will give you a fighting chance on appeal if you lose the case.

Police misconduct case is reinstated for trial

Many, many false arrest cases are dismissed because the police have probable cause to take the plaintiff into custody. If it's a close call, the officer gets qualified immunity because the arrest was objectively reasonable at the time, even if in hindsight the arrest was a bad idea. Some of these cases, actually survive a motion to dismiss, though.

The case is Williams v. Wood, a summary order decided on April 29. Williams was driving around in a car with someone else when the car stopped in front of a group of people by a house where drugs and a gun was recently found. Williams got out of the car and briefly spoke to these loiterers and then got back into the car. Does this sequence give the police arguable probable cause to arrest Williams?

As the record now stands, the answer is no, and the district court should not have dismissed the case on summary judgment. The arresting officer did not know that Williams actually spoke to the people hanging around the house; he only saw Williams "get into a vehicle in the vicinity of a house where drugs and a shotgun had been found thirteen days earlier." In fact, a case from 2005 has even "worse" factual allegations than this case and that case was not worthy of dismissal, either. That case, U.S. v. Swindle, 407 F.3d 562 (2d Cir. 2005), involved a man who drove up to a known drug house, entered the house, left a short time later and drove away. That sequence of events did not give rise to probable cause. If the Swindle case was not enough, then it's not enough here.

The Court of Appeals (Leval, Katzmann and Parker) also reinstates Williams' excessive force claim. The arresting officer says that Williams mouthed off to him and would not make his right hand visible, justifying the use of force. Williams denies it all. In addition, even if the use of force did not injure Williams, he can still proceed with that claim.

Officer's threat to kill inmate may give him a day in court

I've represented prisoners who really loved the law library. They become experts in constitutional law, challenging their convictions and the conditions of their confinement. But there are procedural roadblocks to these cases. Inmates have to satisfy certain procedural requirements before going into court, particularly when they want to sue over prison conditions.

The case is Benjamin v. Commissioner of Correctional Department, a summary order decided on April 29. This case is notable because a pro se inmate defeats the State Attorney General's office. Benjamin certainly knows his way around the prison law library.

If you want to sue over prison conditions, under the Prison Litigation Reform Act, you have to first file a grievance. After the grievance is undoubtedly rejected by prison officials, you can then sue in court. There are exceptions to this rule, i.e., if the prison makes it impossible for you to file a grievance, or you have good reason to fear retaliation for filing the grievance. That's the rule in Hemphill v. Goord, 380 F.3d 680 (2d Cir. 2004).

Benjamin claims that an officer threatened to kill him if he complained about him. That's right, officer O'Conner threatened Benjamin with death. Plaintiff testified that the officer said, "I will kill you if you complain about me." Let me ask you: is this alleged threat enough to deter an inmate from filing a grievance?

The Court of Appeals (Leval, Katzmann and Parker) says the threat might constitute sufficient justification for Benjamin's failure to file a grievance. In dismissing the case for Benjamin's failure to exhaust administrative remedies, the district court seems to have overlooked this allegation. The Court of Appeals is remanding the case so the district court can give it another look.