Second Circuit rejects Supreme Court dicta in New Haven firefighters case

Competing impulses drive Title VII litigation: disparate treatment and disparate impact. Disparate treatment is when the employer discriminates against you on purpose. Disparate impact is when a facially neutral test has a disparate impact against a protected class. This all played out in Ricci v. DeStefano, 129 S.Ct. 2658 (2009), when the Supreme Court took this up for the first time. Ricci is now rippling into the Second Circuit, where it all started.

The case is Briscoe v. City of New Haven, decided on August 15. This is the companion case to Ricci, which began when the City of New Haven canceled the firefighters test because it had a disparate impact on minority candidates. After the Second Circuit ruled in favor of the City, the Supreme Court ruled in favor of the firefighters, ruling that in cases like this, the City may only get away with scrapping eligibility exams if it has a "strong basis in evidence" to believe that certifying the test results would result in a disparate impact case. The Court ruled in favor of the white firefighters who said that the City disparately treated them in refusing to certify the test.

Briscoe is also from New Haven. He wants to be a firefighters. He argues that the test in issue in Ricci had a disparate impact against minority candidates in violation of Title VII. Once again on the defensive, the City argues that the Supreme Court in Ricci already foreclosed this suit because it's dicta in that case says, "If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability." For you non-lawyers out there, dicta is language in a court decision that is not necessary to the holding and is only there as background.

So does this language mean that Briscoe has no case? No. The Second Circuit (Jacobs, Winter and Cabranes) says the above-quoted language from Ricci is only dicta, and that while it resembles the Ricci holding that the City may avoid disparate treatment claims if it has a strong basis in evidence to believe the test results would result in disparate impact liability, the converse -- as set forth in the above-quoted language -- cannot really be true. First, Title VII itself already tells us when a real disparate impact case exists: when the test is job related and consistent with business necessity. Judge Jacobs thus writes: "there is no need to stretch Ricci to muddle that which is already clear." In addition, the dicta in Ricci cannot guide us because "it is difficult to see how a 'strong basis in evidence' can be established for a disparate-treatment claim" as "it is hard to see how one can adduce a 'strong basis in evidence' that oneself will later act with 'discriminatory intent or motive.'"

This is all very complicated. If you have to read all of this twice, don't blame me, and don't blame the Second Circuit. Judge Jacobs suggests we blame the Supreme Court for needlessly adding this dicta to the Ricci decision when it was not even necessary. What this means for Briscoe is that his case is revived (the district court dismissed it) and it gets remanded for the trial court to take up the City's other defenses.

Circuit reinstates inmate's $500,000 sexual assault verdict

The Court of Appeals reinstates a $500,000 jury verdict in favor of a female jail inmate who was raped by a male corrections officer. The Court finds that the jury properly found Monell liability against the county on the basis that the sheriff was deliberately indifferent to the risk that Cash would be sexually assaulted by an unmonitored guard.

The case is Cash v. County of Erie, decided on August 18. The evidence showed that, at the start of each shift, male sheriff's deputies may walk around unannounced through the female housing units, when the women are undressing, showering or using the toilet. And no county policy prohibited a male deputy from being alone with female prisoners. There were also no monitoring devices to supervise one-on-one interactions. The evidence also showed that in 1999 (three years earlier), a male guard had prohibited sexual intercourse with an exhibitionist female inmate.

Any civil rights lawyer will tell you that it's tough to win a deliberate indifference claim against a county. So while the jury ruled in Cash's favor, the trial court threw out that verdict post-trial. The Second Circuit (Raggi, Jacobs [in dissent] and Rakoff [D.J.]) reinstates the verdict. The evidence suggested that defendants knew there was a risk that male guards might sexually exploit female inmates. The Court notes that, under New York law, "the moral certainty of guards confronting prisoners in sexually tempting circumstances" creates such a "frequent risk of harm to prisoners as to require a complete prohibition of any sexual activity." The 1999 sexual incident also alerted the sheriff that it was not enough to prohibit sexual contact between guards and inmates. The sheriff also knew about sexual assaults at other correctional facilities.

The Court of Appeals concludes, "even if [the sheriff] had no knowledge of prior sexual assaults, it was hardly speculative for a jury to conclude that, at least by 1999, he knew or should have known that guards at [Erie County] and other local correctional facilities were engaging in proscribed sexual contact with prisoners, and that continued reliance on penal proscriptions alone was insufficient to protect prisoners from the range of harms associated with such misconduct." So, while the jail issued a memo telling guards that sex with inmates was prohibited, that was not enough to protect the female inmates. The sheriff should have prevented male guards from hanging around the female housing units when the women are using the shower and otherwise potentially exposing themselves.

Judge Jacobs dissents, concluding that this ruling will effectively "impose strict liability on municipalities and policymakers for any incidents that arise in a prison." He criticizes the majority for casting the issue in general terms: "the 'risk of sexual exploitation posed by male deputies guarding female prisoners.'" It was not enough, Judge Jacobs says, that a female inmate filed a disputed (and potentially questionable) complaint about sexual contact with a male guard three years earlier. In contrast, the jail did take stringent measures to prohibit any future sexual contact. As for the jail's continued reliance on male officers patrolling female housing units, Judge Jacobs writes:

Among the absurdities here is that no guard can know when direct contact may become required; in prison, interventions are not always by appointment. And at the risk of being obvious, this policy would either impose enormous incremental costs or would halve the personnel available for supervision of the facility (and thereby increase the risk of prisoner-on-prisoner violence and abuse).

In any event, the risk associated with having men and women interact in a closed environment is bred in the bone; it means nothing to say that the prison authorities should anticipate it. Abating that risk is another matter. If the majority opinion is sound, the only effective solution would be to have no guards of the opposite sex in women’s or men’s prisons. The majority opinion does not take account of the considerable ramifications. Because male inmates greatly outnumber female inmates, the resulting curtailment of opportunity for female guards would likely trigger valid Title VII suits. People with known same-sex preferences may not be able to serve as guards in any prison. And in another sphere, since military officers are responsible for their subordinates, we could not have mixing of the sexes in the military, unless (I suppose) the officers are paired off.

No First Amendment retaliation claim for student's suicide essay

The rules governing the free speech of public students are clear: students can say what they want to long as the speech does not materially and substantially disrupt the work and discipline of the school. But the rules governing when district officials can be sued for retaliation are not clear at all. The Second Circuit has now clarified the test of when the district's response constitutes an "adverse action."

The case is Cox v. Warwick Valley Central School District, decided on August 17. Cox was a middle school student. His class assignment asked what he would do if he had only 24 hours to live. The district is really asking for it when it hands out assignments like this. What the district got was Cox's essay stating that he would use the time "getting drunk, smoking, doing drugs, and breaking the law. It ends with Raphael taking cyanide and shooting himself in the head in front of his friends at the end of the 24 hours."

Is this free speech? The Second Circuit (Jacobs, Livingston and Rakoff [D.J.]) does not say. It instead resolves the case on the issue of whether the district's response to Cox's essay was retaliatory. When district officials became aware of the essay, they sent the boy to "in-school suspension" for two hours while they decided whether he was a danger to himself or others. (He was not a danger so they let him go). District officials also referred Cox's parents to Child and Family Services out of concern that they were neglecting their son for refusing to send him to a psychiatric evaluation. As background, the Court of Appeals tells us that Cox had other disciplinary problems on his record.

Strangely, the Court of Appeals has never decided when a school district's response to student speech is an adverse action. It uses the general constitutional test for this: whether the response would deter a reasonable person from speaking out again. Under that test, this is not retaliation. The ISS placement was brief, and district officials are obligated by law to refer any parent to Child and Family Services if they reasonably believe the parents are neglectful, and they are immune from liability for these referrals. In reaching this holding, the Court of Appeals is highly deferential to the obligations of school district officials to maintain order and generally run the school. The Court writes:

In their various roles, school administrators must distinguish empty boasts from serious threats, rough-housing from bullying, and an active imagination from a dangerous impulse. Making such distinctions often requires an investigation, and the investigation may result in discipline, but the investigation itself is not disciplinary--it is precautionary and protective. This is so even when a student is separated, interviewed, or temporarily sequestered to defuse a potentially volatile or dangerous situation. As in this case, a school administrator must be able to react to ambiguous student speech by temporarily removing the student from potential danger (to himself and others) until it can be determined whether the speech represents a real threat to school safety and student learning. Such acts deserve “unusual deference” from the judiciary.

Point-blank shooting is not depraved indifference murder

There is a difference between depraved indifference murder and intentional murder. That may sound logical, but this distinction has thrown a monkey wrench into many state-court criminal convictions. It prompts the Court of Appeals to grant a habeas petition on behalf of a guy who shot his estranged wife point-blank.

The case is Rivera v. Cuomo, decided on August 9. Rivera was charged with both depraved indifference murder and intentional murder. He argued at trial that his estranged wife had actually committed suicide and that he was not responsible for her death. The prosecutor tried the case as an intentional murder case, that Rivera simply pointed the gun at her head and pulled the trigger. In 1997, the jury convicted Rivera of depraved indifference murder.

Here's how the depraved indifference murder and intentional murder dichotomy plays out. In 2003, the New York Court of Appeals decided that intentional murder cases cannot lead to a conviction for depraved indifference murder. As the Second Circuit notes, "certain murders are so 'quintessentially intentional' that they cannot properly be categorized as depraved indifference murder." Depraved indifference usually involves a conduct such as firing a gun into a crowd or throwing a cinder block off a building during lunch hour in New York City. Intentional murder is ... intentional murder: laying in wait and pointing the gun at the victim with intent to kill.

When Rivera was convicted in 1997, the New York Court of Appeals had not yet said that depraved indifference murders cannot support an intentional murder conviction. So while Rivera's conviction back then may have been solid under New York law, it became quite shaky in 2003, when the New York Court of Appeals reinterpreted the Penal Law. In 2004, when Rivera had exhausted (and lost) all his state court appeals, the New York Court of Appeals said that "defendant's act of shooting his victim at close range could not be depraved indifference murder." Instead, it's intentional murder. The Second Circuit adds, "under any reasonable view of the evidence adduced at trial, Rivera's point-blank shooting ... -- which was either undoubtedly intentional or accidental in the course of a struggle -- could not support a depraved indifference murder conviction."

As the Second Circuit says that we must apply the law as it stood in 2004 and not in 1997, this means that the Second Circuit grants Rivera's habeas corpus petition. The depraved indifference conviction is vacated. The Second Circuit (McLaughlin, Parker and Pooler) says, "the New York Court of Appeals has made sufficiently clear by the time Rivera's conviction became final in July 2004 could not support a conviction for depraved indifference murder." Maybe Rivera is a bad guy, but what he did is not depraved indifference murder under New York Penal Law. Since the jury did not find him guilty of depraved indifference, only intentional murder, he is not criminally responsible for the victim's death. Rivera is one lucky guy.

The Second Circuit giveth and taketh away

In 2009, the Second Circuit held that a criminal suspect's custodial admissions had to be suppressed because he properly invoked his right to remain silent and could not be questioned about his alleged child pornography without an attorney present. The Court of Appeals in 2011 reverses itself in that same case because the Supreme Court changed the ground rules governing the right to remain silent and the right to counsel. Them's the breaks in a world of closely-divided Supreme Court rulings.

The case is United States v. Plugh, decided on August 8. When the police took Plugh into custody, he refused to sign the waiver form that says he would waive the Miranda rights to remain silent and insist on a lawyer. But he told the police, "I am not sure if I should be talking to you" and "I don't know if I need a lawyer." En route to the FBI office, he asked the agents "for advice on what to do." In 2009, the Second Circuit said that these facts compelled the trial court to grant Plugh's suppression motion, which would prevent the jury from hearing Plugh's incriminating statements. The Court of Appeals reasoned that while Plugh's statements were ambiguous about whether to waive his rights under Miranda, his refusal to sign the waiver form was unequivocal. The police should not have continued questioning him after he made it clear that he did not want to talk. This was good news for Plugh!

Then Plugh got some bad news. In 2010, the Supreme Court took up a nearly identical case, ruling in Berghuis v. Thomkins, 130 S.Ct. 2250 (2010), that criminal suspects must make an unequivocal statement to the effect that they do not want to talk and wish to invoke their rights under Miranda. This interpretation of Miranda was intended to allow for clear-cut rules to guide police behavior.

What this means for Plugh is that the Court of Appeals now reverses itself in this case, vacating its 2009 decision. First, "Plugh did not expressly state that wanted to remain silent or that he wanted to consult with an attorney." Moreover, his only statements on issue were ambiguous. He did not insist on the right to an attorney. He instead said he was not sure he needed a lawyer. While Plugh said that he unequivocally refused to sign the Miranda waiver form, that is not enough to suppress his incriminating statements made afterward. The Court of Appeals (Livingston, Jacobs and Rakoff [D.J.]) says that "a refusal to waive rights, however unequivocal, is not necessarily equivalent to an unambiguous decision to invoke them. Indeed, the Supreme Court has made clear that 'invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together." In a hair-splitting analysis that I am sure Plugh will be reading over and over in the wake of this decision, the Court of Appeals writes:

While his refusal to sign the form presented to him upon arrest may have unequivocally established that he did not wish to waive his rights at that time, his concurrent statements made equally clear he was also not seeking to invoke his rights and thus cut off all further questioning at this point. Those statements ... bespoke indecision -- i.e., 'I am not sure if I should be talking to you' -- and contemplation, i.e., 'I don't know if I need a lawyer.' Plugh then continued to express uncertainty about how he wished to proceed by repeatedly asking the agents, during the drive to the FBI field office, for advice on what to do. Critically, at no point did Plugh unambiguously inform the custodial officers that he wished to invoke his right to remain silent or his right to speak with an attorney, nor was his course of conduct such that the officers should reasonably have been put on notice that ... no further questioning should occur.

The right to be vulgar

A case arising from Nassau County reminds us that the First Amendment prohibits the government from arresting people who use mindless vulgarities, so long as the foul language does not rise to the level of "fighting words" or create imminent danger of violence.

The case is People v. Louis, decided by the District Court of Nassau County on July 25. The defendant called the district attorney's office and directed his obscene tirade toward a lawyer there. The accusatory instrument prepared by the assistant district attorney states:

On or about and between February 22, 2010 and April 11, 2010, while employed at the Nassau County District Attorney's Office ... as an Assistant District Attorney, I received a series of telephone voice mail recordings from defendant, Nicolas Pierre–Louis․ In the voice mails, Nicolas Pierre–Louis yells, screams and uses profanity, stating in part, “I'm coming at you with fury,” and, “piece of shit faggot fucking cock sucking cock,” and “bitch, you will lose your fucking job,” and “I got all the juice enough to make sure that you're holding a can in the fucking street,” and “and I will keep calling until you arrest Jessy Pierre–Louis, so do your fucking job” and “when you lose your job bitch, don't say I didn't warn you,” and “I will rain hell on your office and make sure heads roll,” you racist bitch” and “you assholes” and “you motherfuckers.” Nicolas Pierre–Louis says many other profane and offensive comments left recorded on my office voice mail that are alarming and annoying. The repeated calls left by Nicolas Pierre–Louis caused me to fear for my safety and the safety of [another] Assistant District Attorney ... because of the screaming outbursts of rage and anger directed toward [the other ADA] ... and I [sic] and the content of what he was saying during his many calls.

This is pretty obscene, and you can understand why the Assistant District Attorney got worried. Probably more government employees than you think live in fear that someone from the public will follow through on threats like this. The question here is whether this phone message violates the Aggravated Harassment law in New York, which prohibits any telephonic or other electronic communication that is "likely to cause annoyance or alarm." This is tricky language. The Supreme Court has held that, under the First Amendment, vulgar or offensive speech cannot be restricted unless it presents "a clear and present danger" of imminent harm. The New York Court of Appeals has similarly held that

Speech is often “abusive”—even vulgar, derisive, and provocative—and yet it is still protected under the State and Federal constitutional guarantees of free expression unless it is much more than that. Casual conversation may well be “abusive” and intended to “annoy”; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized.

More broadly, citing Supreme Court authority, the Nassau County court says, "A criminal prohibition on communicating in an alloying or alarming way is facially unconstitutional." Under these legal standards, Louis's telephone message is free speech, not aggravated harassment. They are not "fighting words" or a "true threat" of violence. The Court says, "In spite of the fact that the defendant uses a number of derisive terms in reference to the ADA, his statements seem confined to threats to have the ADA fired. Even the worst of the alleged statements, 'I'm coming at you with fury,' is too vague to be considered a true threat, but is more properly understood in context with the defendant's other statements." As applied to this case, the Aggravated Harassment law is unconstitutional.

Let the New York Court of Appeals worry about it

A res judicata curveball finds its way to the Court of Appeals in this employment discrimination case, where the pro se plaintiff brought suit in federal court after a state court dismissed as untimely her appeal from an adverse State Division of Human Rights finding. The Court of Appeals decides that this is a job for the state Court of Appeals, and the case is now at the doorstep of the state's highest court.

The case is Joseph v. HDMJ Restaurant, decided on August 5. Joseph says her colleagues subjected her to some horrible sexual harassment. She went to the State Division of Human Rights, which rejected her claim following a hearing. She then appealed to State Supreme Court, which rejected her claim because she filed the Article 78 appeal too late. She next filed a lawsuit in federal court.

If you are not well-versed in Title VII law, your instinct will say that the federal claim should be dismissed because Joseph lost her claim in State Supreme Court on statute of limitations grounds. But it's not so easy. In University of Tennessee v. Elliott, 478 U.S. 788 (1986), the Supreme Court said that plaintiffs may proceed in federal court on employment discrimination cases so long as they did not appeal the adverse administrative findings in state court. But Joseph did take up that adverse administrative appeal in State Supreme Court, and lost on timeliness grounds.

Two Second Circuit rulings address this problem. In Bray v. New York Life Insurance, 851 F.2d 60 (2d Cir. 1988), the Court said that res judicata attaches when the federal court Title VII plaintiff previously lost her untimely appeal in state court from an adverse administrative determination. Bray is identical to the Joseph case. But in Cloverleaf Realty v. Town of Wawayanda, 572 F.3d 93 (2d Cir. 2009), a municipal due process case that had nothing to do with employment discrimination, the Court of Appeals said that the plaintiff could bring a federal civil rights action after losing on timeliness grounds an Article 78 in state court. The Cloverleaf court said that Bray was no longer good law because the New York Court of Appeals held in Tanges v. Heidelberg North America, 710 N.E.2d 250 (1999), that "the expiration of the time period enumerated in a statute of limitations would not bar an otherwise available federal remedy."

So which is it? Joseph can win the appeal under Cloverleaf, but she loses under Bray. Cloverleaf is the more recent decision, and it is therefore more useful. But Bray is closer to Joseph in its facts. The mid-level appeals courts in New York have not provided enough guidance on this problem, either. The Second Circuit (Katzmann, Hall and Jones [D.J.]) judges looked at each other and said, "what are we going to do?" Here is what they do. Since res judicata is a creature of state law, the Court of Appeals certifies the case to the New York Court of Appeals, which has authority to resolve state-law puzzles like this. So for now, the case sits in limbo until the state's highest court picks up the pieces.