Batson challenge fails where lawyer did not feel "comfortable" with black juror

As the parties picked a jury in a civil rights trial, counsel for defendant excused the only black juror. Plaintiff's counsel made a Batson challenge, arguing that defendant was doing this because of the juror's race. Counsel for defendant told the court that he excused the black juror because he "felt uncomfortable with her." The trial court denied plaintiff's Batson challenge, and he ended up losing the trial. The Court of Appeals affirms.

The case is Filozof v. Monroe Community College, a summary order decided on February 25. Batson is shorthand for the Supreme Court decision that says you cannot reject jurors during voir dire because of race. If the plaintiff makes a Batson challenge to the defendant's choice, the latter has to give a race-neutral reason. Is it race-neutral for counsel to say that he did not feel comfortable with the potential black juror?

In denying plaintiff's motion for a new trial, the trial court noted that "there were no comments of counsel during voir dire ... and that "in this case because counsel made no comments at all during voir dire and did not participate, there was no comments of that ilk,and there was really very little motivation to strike this particular juror." In the end, however, the trial court decided that, having viewed the demeanor of defense counsel, he concluded that "I'm not convinced that the use of the word or phrase that 'I'm uncomfortable with the juror' is, in the context of this case, another way of saying that I struck the juror because she happened to be African-American."

Our instincts may say that this discomfort level with the only black juror was inherently racial. But trial courts have discretion to make these rulings one way or the other. The Second Circuit (Pooler, Cabranes and Raggi) does not second-guess the trial court. The Court of Appeals explains it this way: first, feeling uncomfortable with the juror "may not have been illuminating, [but] it can hardly be taken as an admission that his peremptory strike was motivated by racial considerations. Second, the Supreme Court has held that even if the lawyer offers a "frivolous or utterly nonsensical justification for the strike," the party making the Batson challenge still has to show that it was racial. The Second Circuit finds that it was not "clearly erroneous" for the trial court to reject the Batson challenge. No new trial for plaintiff.

Freed from jail on appeal, but no false arrest case

Many false arrest cases fail. It's just a fact, even if the plaintiff was wrongly convicted and released from jail. That's what happened in this case.

The case is Hargroves v. City of New York, a summary order decided on February 22. It all started when a group of black males beat up and robbed a Chinese food delivery man, who told the police that he would could identify the attackers and that one of them wore an orange jacket. The police then found a group of black males walking along the street, and after detaining them, they had the delivery guy identify them from the police car, no easy task since his face was beaten up, his eyes were bloody and swollen and his glasses were broken. A jury convicted them of gang assault. A state appellate court reversed the convictions because that the police had no reasonable suspicion to detain them on the street, in part because the black "gang" was walking toward the scene of assault, they did not run away when the police approached them, and one of the defendants had a red and blue (and not orange) jacket. After these guys were released from prison, they sued the police for false arrest.

The Eastern District of New York denied summary judgment on the false arrest and malicious prosecution claim, but the case is immediately appealed on qualified immunity grounds. And that is where many false arrest cases die. The police get the benefit of the doubt in tough cases, even if in hindsight they did the plaintiffs wrong. If a reasonable police officer would have detained these guys, they get actual immunity from suit. This happens all the time, but you rarely see qualified immunity applied where the plaintiffs actually went to jail for a crime they did not commit.

How do the police get off in this case? The Second Circuit (Cabranes, Chin and Keenan [D.J.]), says the delivery guy assured the police he could identify his attackers. The Court reasons, "We cannot say that the physical infirmities alleged by plaintiffs -- the swollen face, a burst blood vessel in one eye, and damaged glasses -- necessarily precluded a reasonable officer from accepting Wu's assurances that he had reliably identified his attackers. Importantly, there is no evidence in the record that Wu's conduct prior to and during the show-up suggested any traces of blurred vision, or that his facial injuries required urgent medical care."

The other claims fall for similar reasons. Plaintiffs argue that the initial detention was simply racial profiling and that no one wore an orange jacket, but the Second Circuit says that a reasonable officer at night might have mistaken the red and blue jacket for an orange one since it contained reflective, light red inner lining. As "it was not unreasonable for the officers to think that plaintiffs matched the description provided by Wu" and "one member of the group was wearing a bright jacket of some kind that could reasonably -- if, albeit mistakenly -- be perceived as being a shade of orange," the police reasonably detained this large group of males near the crime scene.

So there you have it, folks. These guys actually go to jail and win their criminal appeals, and there are some factual disagreements about what happened on the night they were arrested, but they have no false arrest case because the police had arguable probable cause. This is how the courts resolve many false arrest cases, and for the Second Circuit this is not a remarkable ruling, which is why they issued it as a non-precedential summary order.

No First Amendment right to preach at high volume

A guy was preaching on the street at the top of his lungs, running afoul of the local noise ordinance. The police officer told him that he was allowed to preach, but that he had to lower his voice. The preacher insisted he had to preach the gospel with a loud voice, so the officer issued him a written warning. The preacher sues under the First Amendment.

The case is Costello v. City of Burlington, decided on February 14. The preacher, Costello, loses the case. The ordinance itself was deemed constitutional by the Court of Appeals some years ago. His only argument is that the officer's directive to lower his voice violated the Constitution.

So long as the government is not restricting speech to stifle content, it can usually get away with that restriction. We call this "time, place and manner," which means the content-neutral restriction is legal unless it burdens substantially more speech than necessary to keep the peace or the speaker has no reasonable alternative to get his message out. Costello cannot overcome the lenient time, place and manner test. The order to "keep it down" was not overbroad because Costello's voice could be heard more than 350 feet away on a quiet but busy street where people are trying to get on with their lives without someone screaming out the gospel. Moreover, he had other ways to preach the gospel. As Chief Judge Jacobs writes, "Costello protests that he is denied the opportunity to preach at the top of his lungs, to 'cry aloud' and 'lift up his voice like a trumpet.' It is obvious that this cannot be done in the time and place it was done and in a manner that respects the interests and rights of his fellow residents."

This is not a remarkable decision. Costello argued it pro se. I am not sure a lawyer would feel comfortable telling the Court of Appeals that someone has the right to scream and yell the gospel on a public street. What makes the decision interesting is the concurring opinions. Judge Calabresi wants no part of Judge Jacobs' response to Judge Pooler's concurrence, in which she suggests that the case is not open-and-shut, in part, because (unlike here) cases permitting noise restrictions usually involve mechanical amplification. Although she is sympathetic to street preaching, "which has a long history in this country," Judge Pooler would rule against Costello on qualified immunity grounds because any reasonable officer would believe it was not illegal to tell Costello to put a lid on it.

Judge Jacobs thinks that Judge Pooler is misreading a Supreme Court opinion from 1949, Kovacs v. Cooper, 336 U.S. 77, on the amplified/unamplified distinction. A concurrence in Kovacs ought to set Judge Pooler straight, Judge Jacobs writes, adding:

The plurality in Kovacs should be a corrective to a common fallacy of judicial thinking of which Judge Pooler’s concurrence is an apt illustration. Judges tend to overvalue the rights and interests of persons who bring constitutional litigation, while discounting to zero the rights of non-litigious persons whose interests are likewise affected and at stake--here, people who want to enjoy one another’s company at lunch, at home, or walking down the street; people who communicate by exchanging civil words; people who want to collect their thoughts while doing business and shopping; people who want to take in their choice of music, or worry, or think thoughts. This is a form of myopia.

No chill, no case for Westchester Guardian

The Westchester County District Attorney called the editor of a raucous weekly newspaper to protest the Westchester Guardian's coverage of local politics. Here's the crux of the dispute: "Plaintiffs allege that Janet A. DiFiore ... called Zherka from her private cell phone to complain about an article published in his newspaper and that this complaint chilled the newspaper's publication of subsequent articles involving DiFiore or her husband personally and inflicted emotional distress on Zherka."

The case is Zherka v. DiFiore, a summary order decided on February 8. There's a few problems with this First Amendment action, which is why the case is dismissed. First, there is no evidence that DiFiore made that phone call in her capacity as District Attorney, which means that she was not a state actor when she allegedly pressured the newspaper to stop running its negative articles, which means that Zherka cannot sue her under the First Amendment. The Court of Appeals (Livingston, Katzmann and Winter) writes: "crediting Zherka's version of the conversation between him and Ms. DiFiori, in which he claims she first identified herself as the district attorney, we agree with the district court's conclusion that 'there is no indication that [DiFiore] intended to, or did, exercise any 'power possessed by virtue of state law.'"

But even if the District Attorney did intend to wield her official authority when she called Zherka, he cannot sue her because he has no standing to do so; there is no evidence that the phone call chilled Zherka's speech. Without a chilling effect, there is no First Amendment violation. Zherka said that the newspaper published "muted" articles in the wake of the phone call, in fact, the paper began attacking DiFiore within a month of the phone call. That's not a chilling effect.

So what starts out as an interesting lawsuit occasioned by the District Attorney's angry phone call to the publisher fizzles out because she called as a private citizen and, in any event, the newspaper did not hold off on its critical coverage.

Times are tough for First Amendment plaintiffs these days

Norman Morey was the head custodian at a public high school when he discovered an asbestos problem in the gym. He repeatedly told the school district official responsible for asbestos abatement that the district was not doing enough to handle the problem. The district brought up Morey on disciplinary charges, and he was fired. If the charges are retaliatory, is the district violating Morey's First Amendment rights?

The case is Morey v. Somers Central School District, a summary order decided on February 9. I represented the plaintiff on appeal. Morey would have a case if his speech about the need for asbestos abatement was protected speech under the First Amendment. It isn't. Asbestos abatement certainly is important, but since Morey was head custodian, the speech was pursuant to his official job duties. As far as the law is concerned, Morey was just doing his job. He was not speaking as a concerned citizen.

In 2006, the Supreme Court in the Garcetti case ruled that speech made pursuant to the plaintiff's official duties is not speech on a matter of public concern, a necessary requirement for protected speech under the First Amendment. The Garcetti ruling changed things. Prior to Garcetti, at least in the Second Circuit, any speech touching on an important public matter was protected under the Constitution, even if that speech related to the plaintiff's job duties. Post-Garcetti, the Second Circuit scaled back its generous protections under the First Amendment in Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), a case in which Judge Calabresi dissented on the basis that his colleagues had too-broadly interpreted Garcetti to mean that a teacher's grievance was work-related and not speech on a matter of public concern.

Judge Calabresi was on the panel in Morey, along with Judges Lynch and Wesley. It was clear that Judge Calabresi doesn't like the direction things are taking post-Garcetti, but his dissent in Weintraub was ... a dissent, and not the majority. Morey loses the appeal.

Supreme Court sustains the Cat's Paw

Making it a bit easier for plaintiffs to prevail in their discrimination claims, the Supreme Court holds that the employer may be liable even if the decisionaker did not harbor any discriminatory bias toward the plaintiff. This ruling sustains the so-called Cat's Paw theory of discrimination.

The case is Staub v. Proctor Hospital, decided on March 1. In this case, the plaintiff sued under USERRA, the law that prohibits discrimination against employees with military obligations. Two supervisors made it clear they did not like Staub's military commitments, and they prepared reports that criticized his violation of company policy. Staub argued at trial that these reports were false. The decisionmaker terminated Staub's employment, in part, because of these negative reports. Although the jury found in Staub's favor, the Seventh Circuit threw out the verdict, holding that the nondecisionmaker supervisors did not exercise "singular influence" over the termination decision.

The Supreme Court rejects the Seventh Circuit's narrow standard and sets forth the following rule: "if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is the proximate cause of the ultimate employment action, then the employer is liable under USERRA." This holding will certainly apply under Title VII and the Age Discrimination in Employment Act, among other employment laws.

First, what does Cat's Paw mean? It derives from one of Aesop's fables, where "a monkey induces the cat by flatter to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing." The Cat's Paw theory recognizes that many workplaces have multiple decisionmakers and that supervisors with discriminatory animus may influence an otherwise neutral final decisionmaker. That nefarious influence allows the plaintiff to win.

But, read closely, this decision requires the plaintiff to show that the biased supervisors intended that the plaintiff suffer an adverse employment action. The Court writes: "The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did cause, an adverse employment action." This rule compliments the Court's observation that "when a decision to fire is made with no unlawful animus on the part of the firing agent, but partly on the basis of a report prompted (unbeknownst to that agent) by discrimination, discrimination might perhaps be called a 'factor' or a 'causal factor' in the decision; but it seems to us a considerable stretch to call it a 'motivating factor.'" To win under the Cat's Paw, the plaintiff has to show the biased supervisors used their influence on an unsuspecting decisionmaker to get the plaintiff fired (or demoted).

Confirming that the lower-level supervisor's discriminatory actions may be imputed to the company only when the supervisor intended that the plaintiff suffer an adverse action, analyzing the Cat's Paw rule to the evidence, the Supreme Court finds that the Seventh Circuit should not have vacated the verdict because there was evidence that the two supervisors who disliked Staub's military obligations and wrote up negative reports about his employment "had the specific intent to cause Staub to be terminated" based on testimony that they wanted to "get rid of" Staub. The Court concludes that "a reasonable jury could infer that [the supervisor] intended that Staub be fired."

In the Second Circuit, relevant language in this area reads like this: "We recognize that the impermissible bias of a single individual at any stage of the promoting process may taint the ultimate employment decision in violation of Title VII. This is true even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the promotion process." Bickerstaff v. Vassar College, 196 F.3d 435, 450 (2d Cir. 1999). This language may run afoul of the new rule set forth in Staub, which requires more than just a discriminatory link in the chain leading to the plaintiff's termination.

Free-speech do-over dismissed on Pickering balancing

If you follow Second Circuit decisions, you take note of the important ones that affect your area of practice, and you move on with your life, often unaware of what happened after the case was remanded to the district court. Some of these cases become famous in the Second Circuit, but they land with a thud back in the district court, which sometimes gets a second bite at the apple in dismissing it again.

The case is Sousa v. Roque, a summary order decided on February 22. Lawyers who handle public employee First Amendment retaliation cases might know the Sousa case, one of the few First Amendment decisions over the last few years to actually rule in the plaintiff's favor. A few years ago, the Second Circuit said a jury could find that Sousa (who claimed retaliation) spoke on a matter of public concern even if “he was motivated by employment grievances.” This language was good for plaintiffs' lawyers, who often have to deal with that precise argument by municipal defendants on a motion for summary judgment.

But the case did not end, of course. The Second Circuit sent it back to the District of Connecticut with a suggestion: "on remand, the District Court may wish to assume arguendo that Sousa’s statements did touch on ‘a matter of public concern,’ and proceed straight to ‘Pickering balancing.’” In other words, the defendants can still win if the plaintiff spoke on matters of public importance if his speech sufficiently disrupted the workplace to justify the retaliation. That's what the district court did. It re-analyzed the case under Pickering balancing and ruled that the value of Sousa's speech did not outweigh the government's interest in managing an efficient workplace.

Sousa's speech concerned workplace bullying against him. This speech is important, but not Earth-shattering, and despite Sousa's arguments to the contrary, they barely touched on financial mismanagement and public safety. On the other hand, his speech threw the workplace into disarray. The district court reasoned (712 F. Supp. 2d 34 (D. Conn. 2010)):

it is clear that Sousa was highly disruptive to internal operations at DEP towards the end of his tenure there. First, beginning in roughly January 2004, supervising Sousa became a "became a full-time job" for Smith, Sousa's immediate supervisor. Smith testified that, due to the amount of time she was forced to spend responding to correspondence sent by Sousa, she "was not able to do [her] other real job," which involved supervising three other individuals and working on a project of her own. Second, Sousa interfered with the Office of the DEP Commissioner by continuing to send correspondence to that Office despite being informed by a supervisor "not to send draft work product to the Commissioner, or anyone else, until the work was vetted and reviewed by the unit." Third, Sousa made accusations of "mobbing" against members of the Ombudsman's office, and threatened to sue Kaliszewski. Smith filed a written, hostile-work-environment claim at one point, informing Evans that she felt unsafe around Sousa. Fourth, Sousa was extremely uncooperative in scheduling an independent medical evaluation, which the DEP sought in order to determine whether Sousa was medically fit to return to work full time. Sousa failed to attend, or showed up late to, multiple appointments with the doctor who was appointed by the DEP to conduct the medical evaluation.

In balancing the value of Sousa's speech with the government's need for workplace efficiency, the district court on remand ruled that the government satisfied its burden under Pickering, dismissing the case. In cursory analysis, the Court of Appeals agrees, and the case is over.