This lawsuit could've been a lot of fun ...

 ... but it won't be. Blame qualified immunity. In this case, the Supreme Court unanimously holds that an anti-war plaintiff cannot sue Secret Service agents for retaliatory arrest under the First Amendment. While the Supreme Court has never said whether you can -- or cannot -- bring a lawsuit like this, the Court says the state of the law was too murky at the time of his arrest to allow the plaintiff to sue the agents for damages.

The case is Reichle v. Howards, decided on June 4. Howards saw Vice President Dick Cheney at a public event in 2006. Of course, Secret Service were standing by. One of them heard Howards tell someone else that he was going to ask Cheney how many children he killed today, a reference to the Iraq war. The agents then monitored Howards closely. The Court writes, "when Howards approached the Vice President, he told him that his 'policies in Iraq are disgusting." Howards then touched Cheney and walked away. When the Secret Service asked Howards if he touched (or "assaulted") Cheney, Howards falsely denied doing so. Howards was arrested for harassment, but the charge was later dropped.

So can Howards sue the Secret Service under the First Amendment for retaliatory arrest? There was probable cause under the Fourth Amendment to arrest him for harassment. But free speech retaliation under the First Amendment is another animal, right? Maybe not. This is where qualified immunity comes in. Under qualified immunity, public officials cannot be sued for damages if the law was not clearly established at the time. This is because police officers cannot be expected to be legal scholars, able to predict how the courts are going to interpret certain behavior under the Constitution. What muddied the waters in this area was the Supreme Court's decision in Hartman v. Moore, 547 U.S. 250 (2006), which said that retaliatory prosecution cannot proceed under the First Amendment if the charges are supported by probable cause. While prosecution is a little different from arrest (prosecutors are immune from all suits and do not arrest the defendant, while police officers who do make arrests may be sued directly for constitutional violations), it's close enough that Secret Service officers might reasonably think that the Hartman case protected them from any First Amendment violations.This means that Howards' case dies at the alter.

What makes cases like this maddening is that the Supreme Court does not have to find that there actually was a constitutional right before deciding that the law was not clearly established. As the Supreme Court says in this case, "to be sure, we do not suggest that Hartman's rule in fact extends to arrests." If it wanted to, the Court could say that Howards' rights were violated under the First Amendment, but that the Secret Service officers had no reason to know that because the Supreme Court had never said that this conduct violated the First Amendment. Had the Court said that in this case, it would set the stage for the next such lawsuit to go forward, even if Howards' suit could not proceed. The next guy who sustains a retaliatory arrest, then, could bring a claim on the basis that the Howards case said this conduct violates the First Amendment. The Court does not do that, which means the law remains as murky as ever.

First Amendment does not protect police speech against arrest quotas

The highway is strewn with discarded Garcetti cases that failed to live up to the high standards set by the Supreme Court and Second Circuit governing public employee whistleblower retaliation cases. Here's another one.

The case is Matthews v. City of New York, a Southern District of New York case decided on April 12. Under Garcetti v. Ceballos, 547 U.S. 410 (2006), public employees may be retaliated against unless their speech relates to a matter of public concern and is not pursuant to their official job duties. The "public concern" angle is easy to prove. The "official job duties" angle is a killer. Here, the plaintiff police officer complained to his superior officers about a quota system "mandating numbers of arrests, summons, and stop-and-frisks." Matthews was given punitive job assignments and bad performance evaluations in retaliation for this speech. The jury would love this guy, but Matthews will never see a jury in this case. The district court said that his speech was pursuant to his official job duties. Case dismissed.

Two cases guide the outcome: Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), and Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011). Weintraub interprets Garcetti to mean that public employee speech is unprotected if it is "part and parcel" of the plaintiff's ability to do his job. Judge Jones holds, "Matthews' complaints to his supervisors are consistent with his core duties as a police officer, to legally and ethically search, arrest, issue summonses, and -- in general -- police." Although plaintiff was not required to speak up this way, that does not save his claim under Second Circuit precedent.

This is what Garcetti gets us these days. Certainly, Matthews' speech touched on a matter of public concern. The proper functioning of a police department, particularly if the department is using quotas and questionable tactics, is a matter of public interest. But the speech too closely relates to plaintiff's everyday job duties. Under Garcetti, Matthews' case is pitched aside.

Matthews argued that his case is closer to Jackler, one of the few cases that survived a Garcetti challenge in the Second Circuit. In Jackler, the Court of Appeals said that a police officer had a case when he refused to falsify a report that implicated a sergeant in police brutality, as that speech had a civilian analogue and was therefore more like citizen speech than official duty speech. But Judge Jones interprets Jackler narrowly. In Jackler, the officer's initial report that told the truth about an act of brutality that he witnessed was official duties speech; it was his refusal to later falsify that report that had a citizen analogue and was therefore protected speech, and it "was only related to his job duties," Judge Jones says. The rule in this case is that "if a public employee is speaking 'pursuant to' his duties, there is no civilian analogue to that speech."

No deadly force jury charge in wrongful death case against the police

If you lose the trial, and you really must take up an appeal, consider challenging the trial court's jury instructions. If the jury doesn't have the right instructions, it could not have made the correct decision, right? Yes, but not this case.

The case is Terranova v. State of New York, decided on April 16. This case arises from a roadblock gone awry. The police set up the roadblock on the Sprain Brook Parkway in Westchester County because some motorcyclists were riding erratically. When three motorcyclists approached the roadblock, there was already a traffic tie-up. When a BMW in the center lane abruptly moved into another lane, it caused a chain reaction. One cyclist crashed into the vehicle. Another drove into the median. A third drove into the median to avoid an accident and jumped off his motorcycle, striking his chest on another motorcycle. He ultimately died from the chest injuries.

The case went to trial on a Fourth Amendment theory that the police had seized the cyclists without justification and had used excessive force. The lost at trial. The appeal argues that, although the trial court used the basic excessive force jury charge, it should have also instructed the jury on a "deadly force" charge that presumably would have made it easier for the plaintiffs to win. The Court of Appeals (Winter, Lynch and Carney) notes that, for a time, some courts interpreted Tennessee v. Garner, 471 U.S. 1 (1985), to mean that "the Supreme Court ... established a special rule concerning deadly force, which could require a separate jury instruction in which police conduct created a substantial risk of death or serious bodily injury." However, in Scott v. Harris, 550 U.S. 372 (2007), the Court rejected that interpretation.

So, the Second Circuit provides the operative rule: "absent evidence of the use of force highly likely to have deadly effects ..., a jury instruction regarding justifications for the use of deadly force is inappropriate, and the usual instructions regarding the use of excessive force are adequate." As this case involves a mere traffic stop and was not intended to seriously injure suspects, it doesn't apply here. No new trial for the plaintiffs.

Circuit sustains $315k excessive force verdict

Paul Weather went to a high school basketball game in Mount Vernon. When he tried to leave the building at halftime, he came upon police officers near the door. Weather told the officers that he was a retired detective but had left his identification inside. The officers called over Sgt. Marcucilli. According to Weather, the Sgt. beat the crap out of him, fracturing his clavicle, injuring his rotator cuff and aggravating a prior injury to the other rotator cuff. The jury awarded Weather $315,000 in damages, including $25,000 in punitives. The Court of Appeals affirms the verdict.

The case is Weather v. City of Mount Vernon, a summary order decided on April 11. Once the jury weighs in on the evidence, it is hard to convince the Court of Appeals to override the verdict unless the Court made some legal error at trial. Mount Vernon is unable to do so. The Second Circuit (Walker, Straub and Pooler) says: "The majority of appellants’ arguments rest on the contention that Weather’s constitutional rights were not violated by Marcucilli’s use of force. But such contention is largely foreclosed by the jury’s verdict, which found that Weather 'proved by a preponderance of the evidence that the defendant, Sergeant Marcucilli, intentionally or recklessly applied excessive force on Mr. Weather on January 12, 2007 in a manner that was objectively unreasonable under the circumstances.'”

Here are the relevant factors in determining whether someone has a claim for excessive force under the Fourth Amendment: courts consider the severity of the crime at issue, whether the suspect posed a threat to anyone and whether he was actively resisting arrest. The officers can use force in certain cases, i.e., if the suspect was charged with a serious crime or was resisting arrest. Not here. There are some interesting holdings in this case, though the Court of Appeals easily rejects all of defendants' arguments.

First, defendants argued that the Sergeant thought that plaintiff was impersonating a police officer, but the jury rejected that defense at trial. Even if Weather had committed disorderly conduct, that is not a crime in New York, but a non-criminal violation. Excessive force is harder to get away with when the suspect is engaging in disorderly conduct. If the Court of Appeals has reached this holding previously, I am not aware of it, and the decision cites no authority on this point.

Second, defendants said that Weather was actively resisting arrest because "he was not calm during his testimony." But, the Second Circuit says, "the demeanor of a witness and what it means about that witness's version of events could not be a more quintessential question for the jury." On top of this, the jury was able to find that Weather was not trying to resist an arrest. As far as the Circuit is concerned, this was a gratuitous use of force by the sergeant. "No reasonable officer would believe that 'twisting Mr. Weather's arm behind his back and pushing or shoving him into the brick wall outside the school' was a lawful use of force this circumstance."

Sex offender in civil confinement cannot sue over seized CD's and magazines

The Second Circuit for the first time outlines the legal standards governing the rights of sex offenders in civil confinement whose mail and other personal media items are reviewed to ensure they do not contain inappropriate material.

The case is Ahlers v. Rabinowitz, decided on April 6. After plaintiff was released from prison, he was sent to a civil confinement. The government can do this because plaintiff was a sex offender. While in civil confinement, officials there seized plaintiff's DVD's and CD's and also reviewed his mail, holding onto some of it. He sues under the Fourth Amendment, alleging that these seizures were unreasonable.

The Court of Appeals says that plaintiff cannot state a claim. The Second Circuit (Jacobs, Wesley and Cabranes) notes that "To determine the substantive rights of a person involuntarily committed to a state institution, the interests of the individual are balanced against the interests of the state.We have not previously undertaken to perform that analysis with regard to the Fourth Amendment right of civilly committed persons to be free from unreasonable searches and seizures."

Writing on a fresh slate, the Court of Appeals has several holdings. First, while Ahlers does not claim entitlement to possess sexually explicit media, he alleges instead that that none of the discs is sexually explicit. "But the Defendants are not bound to accept his characterizations or assurances. It was therefore not unreasonable to seize the discs to look for prohibited material. The fact that the Center allowed Ahlers to acquire the discs did not diminish its interest in ensuring that they were appropriate." Institutional authorities are thus allowed to seize electronic media from inmates to see if they contain inappropriate material.

Plaintiff also sues on a procedural due process violation, arguing that they took his stuff without notice. This claim is rejected. While "pretrial detainees are not entitled to notice before a search of their cells,"Ahlers argues that, "at the time of the seizure, the Center staff did not tell him what they were screening for and gave him no receipt. The state’s interest in quick and efficient searches militates against requiring that a detailed explanation or a written receipt be given at the time of seizure." Afterwards, plaintiff got a receipt and was told of the reasons for the screening; that satisfies due process.

Other claims are also rejected. Plaintiff's claim that the facility had no clear procedures for reviewing his materials doesn't fly; in this context, the facility has to act fast. The Constitution does not require written procedures like this. While plaintiff says that they held onto his stuff too long, the 350 CD's and DVD's have to be reviewed in "real-time," and time takes time, as they say.

Finally, the facility reviewed plaintiff's mail, including his normal magazines. The legal standard governing this claim is "reasonableness," similar to the standard at the jailhouse. Some of the everyday magazines had children in bathing suits. For other magazines, it was not clear why they were taken. No matter. The state defendants get qualified immunity because, the Second Circuit says, they acted reasonably at the time in seizing the mail and magazines under the circumstances.

Moral turpitude crime wipes out discrimination case

The plaintiff is a City of Syracuse Police Officer who lost his job when he was convicted of Endangering the Welfare of a Child because he rented a hotel room for a 15 year-old girl who ran away from home. He sued the City under the Equal Protection Clause and the civil rights laws, arguing that white officers had engaged in similar or worse treatment than minority officers, including him. He loses the case.

The case is Brown v. City of Syracuse, decided on March 13. Brown was suspended without pay after he plead guilty to with Endangering. The question is whether he suffered an adverse employment action after June 2000, when the City suspended him. Without an adverse action, you have no case for employment discrimination. Although Brown was suspended without pay, there is no adverse action after June 2000 because under the state Public Officers Law, a public employee loses his job when he is convicted of an "oath of office" offense. Since Endangering is an "oath of office" offense because it reveals a lack of moral integrity, Brown lost his job even before the City suspended him without pay. The Court of Appeals (Jacobs, Hall and Scheindlin [D.J.]), says there is no adverse employment action since "the July 2000 suspension without pay and the arbitration proceedings leading to his termination all occurred after Brown had lost his job by operation of law."

Brown also argues that his pre-termination suspension was an adverse employment action under the civil rights laws, including Title VII. Under Second Circuit precedent, "administrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action ... where the employer merely enforces its preexisting disciplinary policies in a reasonable manner." While a suspension with pay may, in some circumstances, constitute an adverse action "if the employer takes actions beyond an employee's normal exposure to disciplinary policies," that is not the case here. The City acted reasonably in suspending Brown because the Captain had given Brown a direct order to cease contact with the girl before Brown got her a hotel room when he knew she was a runaway, leaving her alone in the hotel room. Brown misled his superior officers in denying that he rented her the room or knew of her whereabouts. As the City acted pursuant to its regulations that provide for suspending officers "when it reasonably appears that such action is in the best interests of the department," under the circumstances, it did not apply its regulations unreasonably, and Brown therefore did not suffer an adverse action.

Finally, Brown raises an Equal Protection argument because "he should not have been investigated in the first place and the [police department] should have become involved in his investigation and worked with the State Police and District Attorney to achieve a more favorable outcome for him." The general rule is that "civil damages are not available by reason of a police officer's refusal to turn a preferentially blind eye toward another's serious infraction." However, a vigorous investigation motivated by the plaintiff's speech, race or gender that went beyond how the authorities treat members of the general public could predicate an Equal Protection case. Not here. The investigation into Brown's misconduct was nondiscriminatory, and authorities acted reasonably in investigating his questionable behavior. Moreover, the Second Circuit concludes, "to recognize a constitutional violation here based on a failure to extend a 'professional courtesy' would create bizarre incentives encouraging officers to meddle with criminal investigations of a fellow officer's misconduct in order to avoid being subject to liability. This would stand the Equal Protection Clause on its head."

Government can withhold Bush-era waterboarding documents and photograph

The Court of Appeals has turned back an effort by the ACLU to get its hands on government documents relating to waterboarding in the course of the "war on terror." The Second Circuit finds that the Freedom of Information Act does not authorize this disclosure.

The case is American Civil Liberties Union v. Department of Justice, decided on May 21. Who wouldn't want these records? Waterboarding was among the most controversial practices of the Bush administration, which denied that this "enhanced interrogation technique" amounted to torture. In particular, the ACLU wants unredacted government memoranda concerning waterboarding and a photograph of Abu Zubaydah, a "high value" detainee who was in CIA custody abroad.

The Freedom of Information Act provides for the release of certain government records, but there are exemptions, including one for national security. The government invoked that exemption, arguing that they "related to 'intelligence methods,' 'intelligence activities,' and CIA 'functions.'" The plaintiffs responded that these records were subject to disclosure because President Obama announced in January 2009 that waterboarding is torture and therefore illegal.

The Court of Appeals (Wesley, Carney and Cederbaum [D.J.]) provides the backdrop: courts afford the government substantial deference in cases like this that involve national security. In keeping these records under wraps, the government's affidavits must "describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. ... Ultimately, an agency may invoke a FOIA exemption if its justification 'appears logical or plausible.'”

Some of the records in this case were properly withheld because the president said so under an Executive Order in 1995. The Second Circuit looks at these materials in private and finds that they concern intelligence activity rather than a "source of authority." The Court says, "We give substantial weight to the Government’s
declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity." In particular,

The Government’s declarations describe in persuasive detail how revealing the redacted information would cause exceptionally grave harm to national security by (1) “damaging on-going activities and relationships with foreign intelligence liaison partners, which are of utmost importance to the CIA’s overseas intelligence operations,” (2) “alerting our adversaries of the existence of [the] intelligence method, which would give them the opportunity to alter their conduct to adapt to this new information and make future intelligence operations more dangerous and less effective”; and (3) “increasing the risks for all individuals involved in those operations, including CIA officers and assets.”

Other records in this case -- those relating to waterboarding -- are also kept under lock and key. The plaintiffs make the interesting argument that these records cannot be exempt under the "intelligence method" exception because "the President has declared the practice of waterboarding illegal. ... Plaintiffs argue that the CIA may decline to disclose only records relating to those intelligence methods that fall within the CIA’s charter. Plaintiffs argue that because an illegal activity cannot be said to 'fall within the Agency’s mandate to conduct foreign intelligence,' waterboarding cannot be an 'intelligence method' within the meaning of the CIA’s withholding authorities."

The Second Circuit rejects this argument as lacking any basis in FOIA law. The Court is also "wary of the practical difficulties that would likely arise were the category of protectable intelligence methods circumscribed as Plaintiffs propose." In particular, under the plaintiffs' theory, "an information officer and then the court would potentially be forced to engage in a complex inquiry to determine whether the government has sufficiently demonstrated the legality of the method to justify withholding."

So what about the torture photograph? Plaintiffs do not get that one, either. The Second Circuit says that "a photograph depicting a person in CIA custody discloses far more information than the person’s identity. We agree with the district court that the image at issue here conveys an 'aspect of information that is important to intelligence gathering,' and that this information necessarily 'relates to' an 'intelligence source or method.' The Government’s justification for withholding the photograph is thus both 'logical and plausible.'"