Circuit identifies special-needs exception under Fourth Amendment in gun seizure case

We have ourselves a "special needs exception" case under the Fourth Amendment. That amendment says nothing about bypassing the warrant requirement in "special needs" cases, but judges have created exceptions to ensure that the police can take care of emergency situations when there's no time to get a warrant.

The case is Torcivia v. Suffolk County, issued on November 9. The police came to the plaintiff's house after his daughter called 911 to report a violent domestic incident, arising from, believe it or not, her guinea pig. Plaintiff was taken to the mental health facility for evaluation after he asked the officers to tase him. After the police discovered there were firearms in the house, they got them out of the gun safe because CPS expressed concerns about the safety of plaintiff's daughter. Plaintiff was eventually discharged from the facility after it determined he did not need in-patient treatment. The case therefore involves the seizure of plaintiff's guns without a warrant.

Plaintiff challenges the county's firearms removal policy, claiming it violates the Fourth Amendment. These Monell claims, however, are hard to prove. The district court said the policy allows officers to safeguard weapons when someone is transported to a mental health facility following a domestic incident. As for the special-needs rule, the police can seize property or enter the residence without a warrant in the event of an emergency, so long as the temporary gun seizure is not for law enforcement purposes but, instead, public safety. Since this is not a crime-control policy, the Court holds, but a policy intended to protect public safety when firearms are present, the policy satisfies the special-needs exception. The Court holds this policy is constitutional. It looks like this is the first time the Second Circuit has upheld such a policy under the Fourth Amendment.

Plaintiff still tries to win the case by arguing that the County failed to properly implement the policy. The problem with that argument is that if the officers did not properly follow the policy, then the policy is not implicated. Deviations from a constitutional municipal policy do not create a Monell claim. Since (1) the individual officers who seized the guns were exonerated at trial on plaintiff's Fourth Amendment claim, and the Court of Appeals finds no basis to upset that verdict, (2) and the mental health facility defendants won qualified immunity, it appears the case is over.

Can a municipality legislate against filing a late Notice of Claim?

If you sue municipalities for a living, you are aware of the Notice of Claim requirements in New York. To sue towns, villages, counties and school districts under state law, you have to file such a Notice within a tight time-period, often 90 days. This becomes a problem when a potential client calls you with the deadline approaching. You might tell the client that a Notice of Claim is not required for federal claims, but you don't want to walk away from the state law claims, as well, which might include breach of contract, or state law false arrest, assault and battery. This case highlights another Notice of Claim trap for litigators. 

The case is Canario v. City of Newburgh, issued by Supreme Court, Orange County, on November 12. I represent Canario in this Article 78, which alleges that his termination from the police department was arbitrary and capricious. Canario was terminated following a Civil Service Law sec. 75 hearing at which the hearing officer concluded that Canario had unnecessarily used pepper-spray to subdue an arrestee. 

Adverse Section 75 findings are challenged pursuant to CPLR Article 78. Normally, Article 78's are filed without a Notice of Claim. But the City of Newburgh has embedded in its City Charter a Notice of Claim provision that requires such a Notice for all "action[s] or special proceeding[s]," including Article 78's. The Notices of Claim have to be filed with the City "in the same manner as a summons under the Civil Practice Law and Rules within three months after the accrual of such claim." That means you have to serve the Notice like a lawsuit; that requirement differs from state-wide Notice of Claim procedures.

The City moved to dismiss the Article 78 because we did not file a Notice of Claim. We cross-moved for leave to file a late Notice of Claim, arguing that the Article 78 petition was filed within the 90-day period (and was therefore the functional equivalent of a Notice of Claim) and the City faced no prejudice in defending the case since it had already investigated the circumstances leading up to Canario's claim. (Prejudice in defending the case is one of the arguments in favor of rejecting a late Notice of Claim). Critically, the City argued that since the City Charter contained no provision allowing for a late Notice of Claim, State Supreme Court had no authority to grant the cross-motion and the case has to be dismissed on that basis.

Provisions like the one in the Newburgh City Charter are the reasons why lawyers drink. What do you mean the City Charter contains no provision for a late Notice of Claim? After all, the General Municipal Law, which governs the filing of most Notices of Claim in New York, outlines such a procedure. Can a municipality legislate against late Notices of Claim? And what about the more stringent Notice of Claim requirements under the City Charter? Is that legal?

The more stringent requirements are legal, and cases allow municipalities to require Notices of Claim in Article 78 petitions. We normally associate Notices of Claim with slip-and-fall claims on public property, contract disputes with the county, and state-law tort claims. But the City is allowed to require them for Article 78's as well. 

This case asked whether Canario was able to file a late Notice of Claim. There was no question that the City would not have been prejudiced by a late notice. Their memo of law in support of the motion to dismiss defends against the Article 78 on the merits, and there was a full evidentiary hearing demonstrating the City was already familiar with its case against Canario. We argued that the City Charter's Notice of Claim necessarily incorporates the General Municipal Law's provision outlining a procedure for late notices of claim, which provides a multi-part standard for granting motions for late filings. 

There are no published cases that address this particular issue, so Justice Sciortino had to engage in statutory analysis. The Court also noted that, in Picciano v. Nassau County Civ. Serv. Comm., 290 A.D.2d 164 (2d Dept. 2001), "[t]he Second Department considered a motion for leave to file a late notice of claim, filed simultaneously with the complaint for violations of the Human Rights Law." In that case, the plaintiff's attorney argued that it was unclear whether a notice of claim was required, and, in any event, defendants had notice of the essential facts within 90 days of the date the cause of action accrued." As Justice Sciortino noted, "Similar to the facts at bar, neither County Law § 52 nor the Nassau County Administrative Code contained any provision for a late notice. The Court found that defendants had actual knowledge of the facts underlying the plaintiffs claim. On that basis, and because the statute was unclear regarding the need for a notice of claim in the circumstances, the Second Department found that permitting plaintiff to serve a late notice of claim was a provident exercise of its discretion." Justice Sciortino ultimately held:

In the matter at bar, the City does not seriously dispute that it lacked notice of petitioner's claims, or the facts underlying the matter. It has not alleged any prejudice that would inure to it as a result of a late filing of the notice of claim. As petitioner argued, the City's comprehensive arguments advanced in response to the merits of the petition evidences its  investigation and knowledge of the underlying facts.

In the end, Canario gets to file a Notice of Claim, and the case proceeds on the merits. 

 

Hostile housing environment claim fails

The Second Circuit has affirmed the summary judgment dismissal of a hostile housing environment claim brought under the Fair Housing Act, finding that plaintiffs did not plausibly allege that they suffered severe or pervasive harassment by the landlord.

The case is B.L.M. v. Board of Managers of the Vireum Schoolhouse Condominium, a summary order issued on November 4. There is such a thing as a hostile housing environment case, based on the same principles as a hostile work environment claim, in that you have to show the racial (or other unlawful) harassment was severe or pervasive. But under a recent Second Circuit case, Francis v. Park Manor, 992 F.3d 67 (2d Cir. 2021), you cannot sue landlords for the racial harassment of the tenants. You have personally attribute the harassment to the landlords in some way, i.e., the landlord himself engaged in the harassment.

First, there is no severe or pervasive harassment. The Court of Appeals (Pooler, Lee and Englemayer [D.J.]) writes, "the only instances of alleged conduct that could be attributed to the Board, one of the Board’s members, or a Vireum resident acting in concert with the Board were the pattern of banging, stomping, and scraping noises coming from the unit above the unit occupied by A.L.M. and her family, and the pattern of behavior in which Vireum residents would intersect, come unwantedly close to, or temporarily block, Moore Family members as they came to or from their unit . . . We are unpersuaded, however, that a reasonable juror could not find that the Moore Family experienced a pervasive and severe hostile housing environment." While the noise was excessive (more than 100 times) and frequent, there is no evidence that it was motivated by race (plaintiffs are Chinese), gender or age. Their allegations about unlawful motivation are conclusory, the Court finds. 

Instead, the records suggests there were non-discriminatory reasons for this senseless harassment. It looks like the parties hated each other for other. The Court writes, 

there was evidence of long- standing antagonistic relations between Scott Moore [the plaintiff-tenant] and the Board relating to the operation of the building. The record includes, for example, email exchanges with the Board in which the Moores attempted to limit Vireum residents’ use of the condominium’s common areas, such as prohibiting them from gardening in front of the Moore Family’s unit, limiting the use of their parking spots, or standing in the parking area. Those exchanges indicate that the personal relations between the Moores and the Vireum Board and residents had irreparably broken down, for reasons independent of A.L.M.’s race and national origin or other protected characteristics.

Court of Appeals gives pro se discrimination plaintiff a break

This pro se appeal alleging disability and religions discrimination fails, but the Court of Appeals gives him a second chance to amend the complaint because it thinks he may actually have a case.

The case is Patel v. NYU Langone Hospitals, a summary order issued on October 19. The case was dismissed under Rule 12(b)(6) for failure to state a claim. But the district court dismissed the case without analysis, giving the Court of Appeals nothing to work with other the plaintiff's complaint and his letters to the district court and the Court of Appeals further detailing his case. While the Court of Appeals would never credit these letters had plaintiff been represented by counsel (as they would be outside the record), the courts give latitude to pro se litigants who do not always know the rules of the road. These letters save the appeal.

What this means for plaintiff is that while the disability discrimination allegations in the complaint do not make out all the elements, in that they do not outline whether plaintiff could perform the essential functions of his position as a nuclear medicine technologist, his letter submissions and statements made in his appellate brief (which may not have cited to materials in the record) provide details about his medical conditions that suggest he may have been fired because of disability. So while the failure-to-accommodate claim is gone for good, the unlawful termination claim may be revived in the district court with a properly-amended complaint that notes that he had received good performance reviews for 20 years.

The same thing happens with the religious discrimination claim. The pro se complaint does not provide enough facts. But plaintiff's letters to the court suggest he had to leave work early one day to satisfy a religious obligation (he is Hindu) and that management knew about his religion and told him not to read religious texts at work. The Second Circuit (Walker, Sack and Carney) thinks plaintiff should get another shot in the district court in pleading this claim. 

We also have a Family and Medical Leave Act claim. Same thing here. Plaintiff says he was fired because he needed FMLA leave relating to dental surgery. "Patel alleges that NYU approved his application for FMLA leave related to his need for dental surgery. This allegation suggests that he was eligible for FMLA leave, entitled to take it, and gave NYU notice. He also alleges that he was fired for his absences (specifically, for a record of absences culminating in his May 2017 early departure) and that NYU counted medical leave covered by the FMLA against him in evaluating his attendance record. Patel took leave for eye surgery in the month before May 2017, when he was dismissed, and had been approved for upcoming FMLA leave for dental surgery. That temporal connection between a series of protected absences and his firing for poor attendance gives rise to a plausible inference that he was fired for taking FMLA leave." But plaintiff does not allege in the complaint that he was qualified for his position. Again, a pro se mistake. But the appellate brief does say he was qualified. The Court of Appeals gives him the benefit of the doubt. He can amend the complaint on remand to fix that pleading deficiency.

I am sure defendant's counsel raised holy hell about giving plaintiff a second chance to amend the complaint, and they probably said plaintiff had his chance to plead his case, and he did not even ask the district court for permission to file an amended complaint. But we are dealing with a pro se plaintiff, and courts know that pro se plaintiffs don't always know the procedure. We don't want cases to be dismissed for that reason, which means Patel gets a second chance on remand.

The harsh lessons of attorneys' fees appeals

I rarely see successful appeals challenging the trial court's award of attorneys' fees when plaintiff's counsel wins a civil rights case. The Court of Appeals is quite deferential to the trial court's attorneys' fees award, suggesting that this determination is largely within the district court's responsibility, and the appellate judges will not get their hands dirty on these billing issues. This case proves that point yet again.

The case is Chaparro v. John Varvatos Enterprises, Inc., a summary order issued on November 4. This case was brought under the Equal Pay Act. Plaintiffs won the case and were awarded nearly $750,000 in damages. Their lawyers then moved for attorneys' fees. The district court awarded counsel $105,000 in fees to be paid from the damages award allocated to punitive damages. That's good money, but counsel appeals, claiming they were entitled to more money.

The attorneys first argue that the district court's hourly rate was too low. The rates ranged from $250.00 to $450.00 per hour for the lawyers. The district court declined to award higher rates, reasoning that "There are effective attorneys at lower prices [than those sought by Plaintiffs-Appellants] for experienced litigators." In non-legalese, this means that, in theory, plaintiffs could have hired lawyers for less money. This is a theoretical proposition since most civil rights plaintiffs do not pay their lawyers any money at all.  But the courts like to use an objective test in fixing an hourly rate in these cases. The Court of Appeals does not like to second-guess these determinations, figuring the trial courts have a better handle on these issues than the appellate judges. 

With that in mind, while the trial court praised plaintiffs' counsel for their excellent work in the courtroom and their quality of their written submissions, it also held "the litigation of this case positioned counsel to demonstrate expertise in class action and employment law that did not exist before. The hourly rates fall within the reasonable range in the Eastern District and the trial court did not abuse its discretion in rejecting counsel's higher rates. 

The appeal also alleges that the trial court improperly reduced the compensable hours by 50 percent. This means that instead of recovering $105,000 in fees counsel could have gotten $210,000. But the Court of Appeals thinks the trial court had reason to do this. The trial court said this reflected excessive hours resulting from the lawyers' "utter lack of experience in either class actions or employment litigation." And, in other employment cases, lawyers put in far fewer hours than plaintiffs' lawyers did. While plaintiffs' lawyers said the comparable cases were actually incomparable because they involved single-plaintiff discrimination suits, "class actions are not categorically more complex than individual actions, and the district court appropriately considered the nature of the case as a class action lawsuit when formulating the award." 

Some basic rules on the Americans with Disabilities Act

This case highlights an obvious reality under the Americans with Disabilities Act. While the ADA requires your employer to provide a reasonable accommodation for your disability, there are limits to that obligation. If you can't come to work, there will not be an accommodation for you (at least in most cases).

The case is Gorbea v. Verizon New York International, a summary order issued on October 19. Plaintiff says Verizon fired her because she is disabled and the company failed to accommodate her. Verizon says this is not true. In order to prove such a claim, plaintiff has to make out a prima facie case, which includes proving that she could perform the essential job functions without a reasonable accommodation. Under the ADA, if you cannot perform an essential job function -- defined as a job duty that is critical to good job performance -- then there is no claim. The ADA does not provide a claim simply because you have a disability.

The problem for plaintiff is that her disabilities, PTSD and depression, prevented her from coming to work. It goes without saying that showing up for work is an essential job requirement (unless there is some telecommuting component to the job). She admitted this under oath. As such, plaintiff was not "otherwise qualified" to perform her job under the ADA. As for the failure-to-accommodate claim, plaintiff loses that also because she never requested an accommodation for her PTSD and depression. The Court (Walker, Carney and Sack) writes that "Verizon therefore could not have 'refused' to accommodate a request that was not made." The Court does not mention that the employer sometimes has to initiate the reasonable accommodation discussion if it knows the plaintiff needs an accommodation, but it does note that Verizon invited her to request an accommodation but plaintiff did not respond.

Plaintiff also sues under the New York City Human Rights Law, which has a more lenient burden of proof for plaintiffs to satisfy in order to win the case. But that law only goes so far. Even under the City law, plaintiffs inability to come to work means she has no case. 

An astute reader has drawn my attention to a ruling from the New York Court of Appeals on this issue, suggesting the law in New York is better than federal law. Unlike "the State HRL (as well as the ADA) . . . there is no accommodation (whether it be indefinite leave time or any other need created by a disability) that is categorically excluded from the universe of reasonable accommodation" under the City HRL]). That's from Romanello v. Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881, 884 (2013).

Court of Appeals holds NY's mandatory vaccination rule is probably constitutional, reinstating the mandate

The Second Circuit has held that the State of New York's requirement that healthcare workers take the Covid-19 vaccination is likely constitutional and cannot be struck down at this time. This ruling overturns a preliminary injunction against the mandatory vaccination issued by a federal trial court in Utica, and it affirms a second ruling that that upheld the mandatory vaccination rule by a federal trial court in Brooklyn. 

The case is We the Patriots, Inc. v. Hochul, issued on November 4, one week after oral argument. The challenge arises from the absence of any religious exception from the mandatory vaccination rules. For that reason, the plaintiffs bring this case under the Free Exercise Clause of the First Amendment (also known as the religious freedom clause) and Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in employment. A central component of their argument is that, since the mandatory vaccination rules contain a medical exemption for people who get sick from the vaccine, the lack of a religious exemption singles out religion and is therefore illegal.

Under the Free Exercise Clause, a facially-neural law that has the incidental effect of burdening religious activities is constitutional. The Supreme Court said that in Employment Division v. Smith (1990), written by Justice Scalia. At the time, legal scholars raised holy hell about this ruling, claiming it discarded decades of Supreme Court authority that said that even neutral laws that burdened religious activities are presumed unconstitutional unless the government could advance a compelling reason for applying it to religious practices. In that case, the government was able to restrict religious but ceremonial drug use by a Native American tribe, because the law applied to everyone. But if the law singles out religious practices on its face, in contrast, then the law is unconstitutional unless the government can articulate a compelling reason for this selective legislation. So, for example, if a religion advocates human sacrifices, then a law prohibiting the religion from doing that will will not be struck down under the Free Exercise Clause.

The New York vaccine mandate for health care workers is neutral and does not single out religion, the Court (Carney, Walker and Sack) says, even though the original, albeit emergency, mandatory vaccination law did provide for such an exemption before New York revised it after further deliberation  to remove the religious exemption. That sequence of events does not mean the revised regulation is hostile toward religion; nor does it mean the absence of a religious exemption means that religion is being singled out. On its face, the revised regulation means it is neutral toward everyone, except for people who claim a medical exemption. 

The medical exemption does not change things, the Court holds, because the medical exemption is not comparable to the religious exemption. The Court accepts the state's justification for the distinction between medical and religious exemptions, stating:

the State maintains [that] the medical and any religious exemption differ in an important respect: applying the Rule to those who oppose vaccination on religious grounds furthers the State’s asserted interests, whereas applying the Rule to those subject to medical contraindications or precautions based on pre-existing conditions would undermine the government’s asserted interest in protecting the health of covered personnel. Vaccinating a healthcare employee who is known or expected to be injured by the vaccine would harm her health and make it less likely she could work. 

In addition, "the State has also presented evidence that raises the possibility that the exemptions are not comparable in terms of the 'risk' that they pose. It notes that the medical exemption is defined to be limited in duration, as the vaccine requirement is 'inapplicable only until such immunization is found no longer to be detrimental to such personnel member’s health.' . . . In contrast, a sincerely held religious belief that vaccination is inconsistent with one’s religion is unlikely to change to permit vaccination in the future, absent the approval of new vaccines that are developed in a different way. The statistics provided by the State further indicate that medical exemptions are likely to be more limited in number than religious exemptions, and that high numbers of religious exemptions appear to be clustered in particular geographic areas."

What about the Title VII claim alleging the mandate discriminates against religion in the workplace? That argument also fails, the Court of Appeals says, because allowing employees to forego the vaccine is not the only religious accommodation that management may extend to employees. Any reasonable accommodation that does not cause the employer undue hardship will do. The limited preliminary injunction record does not provide the Court of Appeals with enough information for it to know whether there were many or few such accommodations available to religious employees. 

Of course, this fight is not over. I am sure the plaintiffs' attorneys are seeking Supreme Court review on this issue. The conservative Justices have been favorably inclined toward religious freedom arguments in recent years, especially in the context of Covid-19 policies. They may use this case to reevaluate its prior interpretations of the Free Exercise Clause, as well, to make it easier to challenge government policies that in some way infringe on religious practices.