NYC taxi wheelchair accessibility injunction is vacated

In December 2011, a district court in New York City ordered the Taxi and Limousine Commission to make the taxicabs in New York City accessible to people using wheelchairs. The Second Circuit has vacated the injunction because the failure to make taxicabs accessible does not violate the Americans with Disabilities Act.

The case is Noel v. New York City Taxi and Limousine Commission, decided on June 28. District Judge Daniels granted summary judgment against the City for not providing "meaningful access to taxi services for persons with disabilities. The district court also entered a temporary injunction that requires that all new taxi medallions and street-hail livery licenses be limited to vehicles that are wheelchair accessible (“accessible taxis”), until the TLC proposes and the district court approves a comprehensive plan to provide meaningful access to taxi service for wheelchair-bound passengers." To the uninitiated, this ruling would make sense. Doesn't the ADA require governmental entities to make their services accessible to the disabled? Not in this case, primarily because the taxi business in New York City is a private -- and not public -- entity.

Some background: there are more than 13,000 medallion taxis in New York City. About 230 are wheelchair accessible. So, 98 percent of medallion taxis are not accessible. Someone who needs that accessibility had a 3.31 percent chance of hailing a taxi within 10 minutes. Without a wheelchair, it's 87 percent. Sixty thousand New York City residents use a wheelchair.

The ADA is supposed to be broadly interpreted, but the Second Circuit (Jacobs, Kearse and Hall) cites a Colorado district court case from 1998 for the proposition that "the scope of Title II is not limitless." The relevant ADA regulation here is 28 CFR 35.130(b)(6), which prohibits the TLC from refusing to grant licenses to persons with disabilities who are otherwise qualified to own or operate a taxi. But the regulation cannot be interpreted to require the City to make the taxicabs accessible to the disabled. While the regulation helps those seeking the licenses, "[i]t does not assist persons who are consumers of the licensees' product."

The heart of the appeal is plaintiffs' argument that the TLC licenses an industry that does not make its taxicabs accessible. Here's the problem with that argument: Under the ADA, "the programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by Title II(A)." In plain English, this means that an activity is not covered by the ADA solely because it is licensed by a public entity. The public entity here is the TLC. But the taxicab industry in New York City is a private industry. Even if the private industry does not make its services accessible, that does not mean that the public entity that is regulating the private industry is violating the ADA, "unless the private industry practice results from the licensing requirements."

The opinion goes on to analyze other ADA regulations that the plaintiffs claim support their position. If you've handled ADA litigation, you know the regulations are extensive. None of the regulations help the plaintiffs, though. Looks like a huge loophole in the ADA. And Title III of the ADA doesn't apply, either, because "Title III expressly exempts taxi providers from purchasing or leasing 'accessible automobiles.'" So the injunction against the TLC is vacated, and the Court of Appeals grants summary judgment to the defendants on the Title II(A) claim.

The right to lie through your teeth (even losers have rights)

I know the Earth spun off its axis this morning when Chief Justice Roberts announced his surprising swing vote with the liberals on the constitutionality of mandatory health insurance. But lost in the shuffle was another decision from the Court on Thursday: the right to lie about your non-existent military record. The word on the street these days is that, when it comes to free speech, anything goes. That's certainly true at the Supreme Court.

The case is United States v. Alvarez, decided on June 28. The "Stolen Valor Act" says you cannot lie about having received military medals. That's what Alvarez did. Writing for the Court, Justice Kennedy thinks Alvarez is a loser. This is what Kennedy writes:

Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. ... In 2007, respondent attended his first public meeting as a board member of the Three Valley Water District Board.The board is a governmental entity with headquarters in Claremont, California. He introduced himself as follows: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.” None of this was true. For all the record shows, respondent’s statements were but a pathetic attempt to gain respect that eluded him. The statements do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal.

Justice Kennedy does not normally use this kind of colorful language. But whatever he thinks of Alvarez, this guy cannot be prosecuted under the law. Free speech means you can lie about things like this so long as you are not trying to gain any governmental benefits from the untruths. There are many ways the government can restrict speech, but for the most part it cannot do so on the basis of content. That means that while the government can stop you from inciting to riot or defaming someone or agreeing to commit a crime, it cannot otherwise pick and choose what people can say. That's why you can burn the flag or protest at a military funeral. It's also the reason the Supreme Court in Citizen's United lifted all restrictions on corporation campaign expenditures, which also qualify as speech.

The Stolen Valor act restricts speech on the basis of content in that the government disapproves of bullshit artists like Alvarez. It's easy to see how a law like this got passed. It was 2005 and patriotic fervor was running strong as solders were fighting in Iraq and Afghanistan and the embers of 9/11 were still smoldering. That fervor is still there. Just watch the seventh inning stretch on TV at Yankee Stadium.  

While this may have been a popular law, it fails. Justice Kennedy is actually one of the more pro-speech Justices on the Court. He recognizes what Congress was trying to do when it passed the Stolen Valor Act. But he's not buying it:

The Government defends the statute as necessary to preserve the integrity and purpose of the Medal, an integrity and purpose it contends are compromised and frustrated by the false statements the statute prohibits. It argues that false statements “have no First Amendment value in themselves,” and thus “are protected only to the extent needed to avoid chilling fully protected speech.” Brief for United States 18, 20. Although the statute covers respondent’s speech, the Government argues that it leaves breathing room for protected speech, for example speech which might criticize the idea of the Medal or the importance of the military. The Government’s arguments cannot suffice to save the statute.

You need a compelling reason to restrict speech on the basis of content. The government says it has a compelling interest in preserving the integrity of military medals. But the government has not shown that the law is necessary to achieve any legitimate governmental interest. "The Government points to no evidence to support its claim that the public’s general perception of military awards is diluted by false claims such as those made by Alvarez. ... As one of the Government’s amici notes 'there is nothing that charlatans
such as Xavier Alvarez can do to stain [the Medalwinners’] honor.' Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 1. This general proposition is sound, even if true holders of the Medal might experience anger and frustration." In addition, the Court says, the way to counter falsehoods is through more speech. Kennedy writes, "The facts of this case indicate that the dynamics of free speech, of counter speech, of refutation, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements 'Alvarez was perceived as a phony.' Once the lie was made public, he was ridiculed online."

More broadly, there is no line of cases generally allowing the government to restrict false statements. Rather, falsehoods are inevitable in a world that values open speech. Justice Kennedy concludes, "The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection.Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more." He adds, "Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003)." And:

Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

No speech rights for police officer who exposed official misconduct

The public whistleblower has few rights under the First Amendment these days. The Supreme Court's Garcetti decision in 2006 said that any speech arising from the employee's official job duties is not protected under the Constitution, and management is free to do whatever it wants to the employee in response to that speech. Since, then few Garcetti cases have survived in the Second Circuit. This case does not change anything.

The case is Matthews v. Blumenthal, a summary order decided on May 24. Matthews worked for the Connecticut State Police Internal Affairs unit. He was responsible for investigating police misconduct. While performing his duties, plaintiff "learned that the Connecticut State Police covered up officer misconduct, which included the commission of crimes, driving while intoxicated, and misuse of funds." After plaintiff disclosed this misconduct to the Attorney General and other public authorities, "superior officers in the Connecticut State Police, allegedly retaliated against Appellant for making these disclosures." Now, this case was dismissed under Rule 12, so no one had the opportunity for any discovery or cross-examination, but if Matthews' allegations are true, it sounds like he got a raw deal for protecting the public interest.

A raw deal perhaps, but this retaliation is legal, at least under the First Amendment. Matthews spoke out pursuant to his official job duties. As the Second Circuit (Wesley, Lohier and Droney) says, "appellant’s complaints to outside agencies were 'part and parcel' of his ability to properly execute his duties–i.e., enforce the law and effectively combat police misconduct. ... Appellant’s additional concession at oral argument that he first reported the misconduct up his chain of command further supports our  determination that he was acting pursuant to his employment duties."

Some police officers do have rights under the First Amendment to speak on certain work-related matters, but the one Second Circuit case that ruled in favor of an officer post-Garcetti arose under facts that may not arise again anytime soon: an officer's affirmative refusal to falsify an excessive force report that implicated a sergeant. These cases are otherwise being dismissed left and right, producing the ultimate anomaly: prison inmates have more First Amendment rights than the officers who arrested them.

Advice from disbarred attorney not per se ineffective under Constitution

See, once you get convicted of some crime, you go to the slammer and start thinking about how to get out of jail. One solution is a habeas corpus petition claiming ineffective assistance of counsel. You know, "my lawyer slept through trial" or "jury selection was unfair." That might work. How about this one: "my lawyer was disbarred when he took on my case."

The case is Elfgeeh v. United States of America, decided on May 23. Elfgeeh plead guilty to operating and conspiring to operate a money transmitting business without a license. Then he fired his lawyer and hired Burton Pugach, who had been disbarred in 1960. That's right, disbarred 43 years earlier! Elfgeeh did not know this, though. Elfgeeh paid Pugach money to vacate the guilty plea. Elfgeeh, meanwhile, used a licensed attorney, Frank Hancock, to actually advise Elfgeeh. Usually, Elfgeeh met with Hancock and Pugach at the same time. As the Second Circuit (Raggi, Winter and Chin) puts it:

Appellant described these meetings as ones in which Hancock spoke very little, often only to express agreement with Pugach, pose a legal question, or advise Pugach to explain a particular point to appellant. Hancock was also aware that Pugach and appellant had discussed matters relating to the case and would often decide the course of action before speaking with Hancock. Nevertheless, Hancock signed all documents filed with the court, and only Hancock appeared on behalf of appellant at court proceedings, other than one instance where Pugach informed the court that Hancock was unavailable.

The trial court denied Elfgeeh's motion to vacate the plea, but it vacated the plea anyway, for other reasons: the magistrate judge did something wrong in handling the guilty plea. It was a big mistake for Elfgeeh to try to re-open the case. The government would not make a new plea offer, and Elfgeeh lost his trial and was given 188 months' incarceration, more than twice as long as the incarceration under the initial guilty plea.

The habeas petition argues that Elfgeeh relied on legal advice from a disbarred attorney. The issue is "whether a per se ineffectiveness rule applies when a defendant, although having a licensed attorney of record, relies on the advice of a disbarred attorney." The answer is no. While Elfgeeh argued that Pugach was his "de facto attorney," at all times, Hancock was legally advising Elfgeeh, signing all papers and appearing for him in court. Had Pugach been the only one advising Elfgeeh, he would win the habeas petition. But he was not. (By the way, Hancock was later disbarred for aiding in the unauthorized practice of law through Pugach). The Second Circuit concludes,

A court cannot -- and, where a decision is one for the client to make, should not -- ensure that a defendant accepts advice only from his attorney of record. Indeed, many defendants may well take advice from friends or family, including persons claiming legal knowledge, when deciding to accept or reject a plea agreement, to testify at trial, etc. These decisions are for the defendant to make, after receiving the informed advice of licensed counsel. That advice may be defective, even non-existent, but the Strickland two-prong test is fully adequate to protect defendants in such cases. ... If a per se ineffectiveness rule joined with a de facto attorney claim were adopted, defendants such as appellant would have great incentive to claim reliance on advice from unlicensed sources. The extent of such reliance would almost always be indeterminable, and the claimed reliance would, in and of itself, tend to constitute the advisor as a de facto attorney.

Long live the fleeting expletive

The media seems disappointed that the Supreme Court did not hold in the "fleeting expletives" case that FCC rules prohibiting profanity on network television inherently violate free speech. Instead, the Court said that the FCC's rules allowing the agency to punish the networks for unanticipated foul language from celebrities violate the First Amendment's requirement that we receive fair notice of the rules before the government can punish us.

The case is FCC v. Fox Television, decided on June 21. It all started when Cher, Bono and others used the F-word and other profanities on television during award ceremonies. This was unscripted. The FCC reprimanded Fox Television for this. It also fined ABC Television over $1 million. These punishments are overturned by a unanimous Supreme Court.

We all know that the networks cannot allow premeditated cursing on television. When George Carlin did this in the 1970s on WBAI radio (the "7 dirty words"), the FCC punished the station, and the Supreme Court said that the FCC may impose these rules on the public airwaves. At some point, however, the FCC decided that "fleeting expletives" also violate FCC rules. However, it was not clear to the networks that the rules had changed. When the FCC therefore sanctioned Fox and ABC Television, it did so without providing fair notice that "fleeting expletives" run afoul of the rules. That violates the First Amendment.

A side legal note: the Supreme Court notes that Fox Television was not financially sanctioned. The FCC said this should get the agency off the hook; sort of a no-harm-no-foul. But the Court does cry foul. The FCC could use the non-monetary sanction against Fox in the future in imposing future penalties. In addition, the Court notes that the sanction caused Fox the suffer "reputational injury." The Court explains:

As respondent CBS points out, findings of wrongdoing can result in harm to a broadcaster’s “reputation with viewers and advertisers.” This observation is hardly surprising given that the challenged orders, which are contained in the permanent Commission record, describe in strongly disapproving terms the indecent material broadcast by Fox. Commission sanctions on broadcasters for indecent material are widely publicized. The challenged orders could have an adverse impact on Fox’s reputation that audiences and advertisers alike are entitled to take into account.

Is this reasoning realistic? Does anyone hold it against Fox that someone used foul language on television? Who knows. But this language may be useful in other contexts, i.e., employment discrimination cases, where the plaintiff suffers no monetary damages but instead points to other harms that may either hurt the plaintiff down the road or cause reputational harm among colleagues or future employers.

Another side note: it is obvious that Justice Kennedy is not comfortable using the F-word (among other profanities) in published Supreme Court rulings. He instead writes "F***" and "S***."  My research shows that the Supreme Court has said "fuck" in nine cases, most recently in 1993. The first time they did this was in 1971, in holding that an anti-war guy could walk through a California courthouse with a jacket that said "fuck the draft." The first time any federal court used the F-word was in 1966, when a district court in California ruled on whether the government could prosecute a "nudie" peep show. In case you were interested.

A final side note: Justice Ginsburg would overturn the George Carlin case that said the FCC may prohibit obscenities on network television. She says that case, FCC v. Pacifica Foundation, 438 U.S. 726 (1978), was wrongly decided back then, and that it makes no sense today in light of technological advances. She probably means that with all the cable channels we have today, there is no functional difference between the public (no cursing allowed) and private airways, where profanity is rampant. Any 10 year-old with a remote control could tell you that.

No en banc review in child caseworker liability case

The Second Circuit will not hear en banc a case holding that an abusive father can sue a caseworker under Section 1983 for unlawfully entering his home under a bad warrant and seizing his at-risk children. The Court of Appeals hears very few cases en banc, but we can usually count on interesting and provocative opinions that dissent from the refusal to hear the case en banc. This case is no exception.

The case is Southerland v. City of New York, originally decided by the Court of Appeals in June 2011. A three-judge panel held that a caseworker who entered Southerland's home on a warrant containing inaccurate information about his children could not invoke qualified immunity. That entry caused the caseworker, Timothy Woo, to seize six other at-risk children. Here's my summary of the case from June 2011:

Investigator Woo was assigned to the case after one of the Southerland daughters, Ciara, was behaving strangely in school. Woo came to the house and claimed that the Southerland's children were living in squalor; Southerland strongly disputed this characterization. Concluding that their safety was threatened, Woo removed the children from their home and sent them to foster care. While Kings County Family Court concluded that Southerland had abused and neglected his children and sexually abused Ciara, none of this damning information was in Woo's possession when he entered the home and took away the kids. For that reason, the Second Circuit (Sack, Kearse and Hall) disregards the Family Court's findings in determining whether Woo violated the Constitution.

Five active judges on the Second Circuit (Raggi, Cabranes, Jacobs, Livingston and Wesley) want the court to hear the case again. I guess you could call this the conservative wing of the Second Circuit. Two of those judges issue opinions dissenting from the court's refusal to hear the case en banc.

Judge Raggi says that "in allowing an adjudicated abusive father and the children he abused to sue a caseworker for prematurely halting the abuse, the panel extends our due process precedent in a way that the court should reject en banc. ... Recognizing a viable claim for money damages in such circumstances risks bringing the law into disrepute. Further, it endangers future abuse victims by unnecessarily deterring caseworkers from promptly intervening for fear of being liable for money damages, not only in cases where no parental abuse or neglect is established but also in cases where courts conclusively determine that it is." She concludes:

Rather than allow this case to go forward, this court should clarify two principles of law: (1) there is always probable cause to look for an at-risk child in the home of his or her custodial parent, at least absent conclusive evidence to the contrary; and (2) once a parent has been adjudicated to have so abused and neglected his children as to be denied custody, neither the adjudicated abusive parent nor the children he abused can sue the caseworker who effected the initial removal for money damages based on due process or Fourth Amendment claims that the removal was premature. With these principles clarified, there is no question that the defendant caseworker, Timothy Woo, is entitled to summary judgment on the ground of qualified immunity.

Judge Jacobs also dissents, slamming cases like this that unfairly subject public servants to personal liability for doing nothing wrong. In this case, he says that the original panel decision "has jumped the rails." For those of you who go straight to Justice Scalia's dissenting opinions in reading Supreme Court cases, Chief Judge Jacobs is the Second Circuit counterpart. Here are some highlights:

Nothing can account for such an opinion and result except the panel’s tacit assumption that Mr. Woo is merely a nominal defendant, that the City of New York will take on his defense and indemnify him for any judgment, and that litigation like this is not really a claim against the individual but is in effect an instrument for developing ever more ramified constitutional principles and for policing governmental compliance with these constitutional developments. This is an almost-complete misconception of Section 1983 claims against individuals. An individual defendant has at stake his savings, his pension, the equity in his home, the kids’ college fund: This should tell us something about the threshold of liability.

...

The panel’s opinion and the assumptions that animate it have effects that reach beyond Mr. Woo and the City of New York as his employer: There is a substantial and direct impact on public safety. ... When the panel opinion in this case is considered together with DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), holding that state officials have no constitutional duty to protect children against domestic abuse, a perverse incentive is created. A child welfare worker is shielded from liability when she recklessly fails to protect abused children, but she is exposed to personal liability when she acts in good faith to protect them.

...

The panel would send Mr. Woo to a jury for an assessment of his liability and the damages he should pay. I would shake his hand.

Pro se inmate defeats U.S. Attorney's office in Muslim prayer appeal

Congress enacted the Prison Litigation Reform Act in the mid-1990s because they wanted to curb inmate litigation. Before they bring a lawsuit, prisoners now have to file an internal grievance with the jail. Once the grievance is denied, inmates can sue in court. Once consequence of this procedure is that lawsuits are sometimes dismissed because the inmate did not exhaust his administrative remedies. That happened here. But the Court of Appeals reverses, reinstating the case.

The case is Johnson v. Killian, decided on May 16. Johnson was locked up at Otisville Correctional Institution. His Muslim prayer ritual required him to pray five times a day, but the jail said he could only do it once a day. The jail also limited where these prayers could take place. He brought an internal grievance in 2005, which the jail denied. Otisville later revised its policy. All was good for Johnson.

All was good for Johnson until 2007, when a new warden came to Otisville. He reimplemented the old policy, again limiting Johnson to one prayer a day. Bummer for Johnson! He took his case to federal court without filing a grievance. The district court threw out the case because Johnson did not file a grievance before suing in court.

The Court of Appeals (Calabresi, Cabranes and Chin) reverses and reinstates the lawsuit. What makes this so unusual is that Johnson handled his appeal pro se and defeated the United States Attorney's office. He wins the appeal because the first grievance, back in 2005, was identical to the 2007 one and therefore good enough to put the jail on notice that Johnson was aggrieved. The second grievance, two years later, was unnecessary because it would have been redundant.