You cannot have a "black cat keychain" in New York

Now that we have a rock-solid right to own weapons under the Second Amendment, the federal courts  have to sort through the challenges to various laws that rein in the American impulse to possess guns and other tools of violence. In this case, the Court of Appeals is asked to strike down a law that prohibits the "black cat keychain."

The case is Small v. Rice, a summary order decided on November 26. The New York Penal Law makes it illegal to possess "any firearm, ... plastic knuckles, metal knuckles." Do you see the word "any"? The Court of Appeals says the word "any" means there may be more than one type of "metal knuckles" covered under the statute and that possession of "any" of them is illegal. Plaintiff says the statute is vague and therefore void under the Due Process Clause. He says that it is not clear that the "black cat keychain" is clearly proscribed under the Penal Law. But it is clear, the Second Circuit (Raggi, Pooler and Wesley) says.

The Second Circuit ruling includes a picture of the "black cat keychain." You rarely see visual images in Court of Appeals rulings, but a picture of the keychain is essential to understanding what's going on here. This is the picture from the Second Circuit ruling:

If you look at the keychain solely as a keychain, it looks like a kitty cat. What a cute li'l kitty! But if you see how it fits in your hand, you can see why it's illegal. Stick your fingers in the kitty eyes and the ears become a weapon. The "black cat keychain" is marketed as a self-defense device. You can buy one on Amazon.com. But quoting from a decision from the Supreme Court of Rockland County, the Court of Appeals says that the keychain fits comfortably within the definition of prohibited weapons:

the Supreme Court of Rockland County persuasively concluded that the cat keychain was a set of “metal knuckles” and was proscribed by the statute: "The object has two holes for the fingers and two pointed metal spikes which when worn protrude from the back of the hand and which are obviously designed to enable one to inflict a blow from a fist enclosed by metal spikes for the purpose of enhancing the injury to be inflicted on contact."

The reviews for this keychain on Amazon.com are interesting and highlight to continuing debate in America about the right self-defense and the Second Amendment. One reviewer says "I like it because it's super cute, it's discreet and it's easy to remember to use it because your fingers naturally fit right in the eye-holes. I haven't had to use it yet but it seems like it might hurt." Another says "My husband had this on his keychain at the airport....he was arrested with a misdemenor and has to go to court... they are deciding if federal charges will be filed... This has now cost us an attorney at $600 an hour and lost work for court in another state. DO NOT attach it to a keychain!!!!" Somebody else wrote, " I think it is extra security, and it is strong, but be prepared to RUN. If you do not get someone in the eye to make them stop and pause, it will just make them angrier."

How not to settle a case

In this case, the defendant offered the plaintiff all the damages to which he was entitled under the Fair Debt Collections Act, totaling $1,000 in cash money. But defendant did not make an Offer of Judgment under Rule 68. After endless squabbling about the terms of the deal, the parties stipulated that plaintiff would get a judgment for the $1,000 and that the court would decide attorneys' fees. After the Court awarded over $30,000 in fees, defendant appealed, arguing that the offer was tantamount to an Offer of Judgment and the plaintiff got too much money in fees.

The case is Cabala v. Crowley, decided on November 19. I guess this case is for litigators and Federal Rules junkies only. But parties should be interested also, because the attorneys' fees far exceeded the damages. Defendant argued that the initial offer of settlement mooted out the case and thus killed off any attorneys' fees entitlement. He also argued that the offer was like a Rule 68 offer which would also limit the attorneys' fees.

No dice, says the Court of Appeals (Raggi, Lynch and Lohier). An unaccepted offer that gives the plaintiff all to which she is entitled does not moot out the case. The plaintiff can still continue with the case. But when that happens, the Court notes, the judge can direct judgment against the defendant for that amount and that would terminate its jurisdiction over the case. But here, defendant made the offer to avoid a judgment. And he did not move the district court to dismiss the case on the ground that he offered the plaintiff his full measure of damages. As the parties then squabbled about the nature of the settlement ("it takes two to stage a useless litigation" the Second Circuit says), the district court did not abuse its discretion in finding that the plaintiff reasonably moved ahead with the case after defendant made that initial offer, thereby entitling him to the fees.

Defendant also argues that the offer to pay out all the damages was the same a Rule 68 offer. Except that there was no Rule 68 offer. If you want to invoke the benefits of Rule 68 offer, then make a Rule 68 offer. Rule 68 can save the defendant a lot of money if the plaintiff's ultimate award is less than what the defendant offered under a formal Rule 68 offer. Had defendant done this, he could have avoided liability for further costs. He did not do this, so he has to write out a check in the amount of $32,489.29 in attorneys' fees. And that, my friends, is a lot of money for a case that was only worth $1,000.

Immediate breathalyzer test for (certain) NYPD officers does not violate Fourth Amendment

Following the highly publicized fatal shooting of Sean Bell in 2006, New York City adopted a rule the following year that says that if a police officer shoots someone, he must submit to a breathalyzer test. The labor union challenges that rule under the Fourth Amendment. The Court of Appeals says this procedure is legal.

The case is Lynch v. City of New York, decided on November 15. Under the rules, if the test produces a reading under .08, the officer has nothing to worry about. Otherwise, he must submit to a more alcohol-sensitive test at Internal Affairs. If he fails the test, IAB decides whether the officer is unfit for duty due to intoxication. Since the alcohol test is a search, the question is whether it violates the Fourth Amendment,which only prohibits "unreasonable" searches. You don't always need a warrant under the Fourth Amendment. Nor do you always need reasonable suspicion to conduct a search. Not if the government can satisfy the "special needs" doctrine, a narrow exception to the usual Fourth Amendment rules.

Does the special needs doctrine apply here? You know the answer. The Warren Court is no longer with us. Under "special needs," we look at the primary purpose of the search, i.e., the immediate objective of the search, not its ultimate goal. We also ask if the interests served by special needs outweighs the privacy interests at stake. Here, the immediate goals of the alcohol search is not criminal law enforcement (i.e., to punish the officer for unlawful intoxication) but personnel management and the maintenance of public confidence in the police department when officers discharge their guns and cause death or injury. The test also deters officers from carrying a gun while they are unfit for duty due to alcohol.

What about the lack of any warrant? The procedures are sufficiently narrow and specifically defined to satisfy the special needs doctrine. They only apply when an officer discharges his gun, causing injury or death. IAB has no discretion at that point to conduct the test, and officers know the rules are in place. A warrant would provide little or nothing in the way of personal privacy protections. Also, the burden of obtaining a warrant would frustrate the purpose of the program, as alcohol is eliminated from the bloodstream at a constant rate, such that any delay in getting the warrant could get the officer off the hook.

Finally, the rules are reasonable. Officers have a reduced expectation of privacy as they carry guns and have authority to use deadly force. Breath testing is not that intrusive. And, the police department has a manifest need to confirm that officers who discharge their guns are fit for duty. While the Union argues that the City has less intrusive means to test for alcohol, the City is not required to use the least intrusive search practicable. The City therefore is entitled to summary judgment in this case.     

Qualified immunity for police officer who chased after suspect onto bystander's property

Qualified immunity throws a cold blanket on your great case, that's for sure. Even if the public defendant technically violated the law, he cannot be sued if the case law was unclear at the time of the civil rights violation. The Supreme Court reminds us of this principle in a case that was so clear to them that they ruled upon without oral argument.

The case is Stanton v. Sims, decided on November 4. The fun started when the police showed up in the middle of the night because of an "unknown disturbance" involving someone with a baseball bat. One of the guys on the scene, Nicholas Patrick, ran away when officer Stanton yelled out "Police!" Violating that police order, Patrick instead ran into a fenced-in yard owned by Drendolyn Sims, who was smacked in the forehead when Stanton kicked in the gate in pursuit of Patrick, who had committed a jailable offense in ignoring the lawful police order to stop.

Sims sued Stanton. The Ninth Circuit Court of Appeals said that Sims has a case under the Fourth Amendment, and that Stanton was not entitled to the warrantless entry into her property because Sims had an expectation of privacy on her property. Also, there was no immediate danger and Patrick had only committed a minor offense in running away from the police. Stanton filed a petition for Supreme Court review.

Let's talk about Supreme Court practice for a minute. Everyone wants their case heard in the Supreme Court. Arguing in that Court is like playing center field for the Yankees in the World Series, or filling in for Ringo Starr when the Beatles toured Australia. But a certiorari petition costs a lot of money because the Court wants the petition printed up professionally, and the attorney time devoted to convincing the justices that your case stands out among the 7,000 annual petitions is enormous. The Court only hears about 75 arguments a year, so the odds make it quite unlikely that your time and money will be put to good use. Still, the Court has to hear someone's case, right? They took this case, but they also decided it without oral argument. So, no glory for Stanton's attorney who wanted to argue in the Supreme Court, but counsel wins the case on the strength of the certiorari petition, so it's not a total bust.

The Supreme Court says that "federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of of that suspect." The Court then cites contrary state and federal rulings on this issue, and it does not even think Supreme Court or pre-existing Ninth Circuit precedent is directly on point, so the Ninth Circuit ruling in this case is vacated on qualified immunity grounds.

Astute readers will notice that the Supreme Court does not limit its "clearly established law" analysis to Supreme Court or Ninth Circuit rulings. If you practice in the Second Circuit, you try to find other cases from the Second Circuit to show the law was clearly established. But the Supreme Court has never conclusively held what body of case law to draw from in determining whether the law was clearly established at the time of the alleged constitutional violation. Here, the Court implies that the universe of relevant court rulings is nationwide. If that is the case (and the Court does not squarely hold this is the right approach), then it certainly makes it easier for public defendants to win qualified immunity.