Court of Appeals upholds $1.5 million police misconduct verdict

The Second Circuit holds that a jury properly awarded more than $1.5 million in damages against two Syracuse police officers who threw a man to the ground in the course of his arrest, causing significant physical injuries.

The case is Grant v. Lockett, a summary order issued on December 8. I was co-counsel to the plaintiffs on appeal, which we argued in May 2020, making this the longest wait for a summary order that I've seen in the Second Circuit. I will cover this ruling in two parts. This installment looks at the evidentiary rulings that the officers challenged on appeal. As it happens, the Court of Appeals (Livingston, Kearse and Sack) ruled the trial court made significant errors in admitting certain evidence against the police officers, but that these errors do not warrant a new trial because the errors were harmless in light of the strength of the case and other factors.

As this is a summary order, we don't have a full statement of facts. For that, you have to read the district court ruling that affirmed the verdict post-trial. Here is how the Northern District of New York summarized the trial evidence:

On June 28, 2014, plaintiffs resided at 105 Hudson Street in the City of Syracuse with their youngest son, Alonzo Grant, Jr. In the early evening while a family barbeque was occurring, Mr. Grant got in an argument with his daughter Alyssa and requested she leave the home. After she left, she proceeded to get in an argument with a neighbor prompting Mr. Grant to call 911 and request police assistance. Officers Lockett and Montalto arrived at the Grant home soon thereafter and were advised by plaintiffs that their assistance was not needed as Alyssa had left. 

However, Officers Lockett and Montalto testified that Mr. Grant was yelling at an person in the residence and they were concerned about a domestic situation. Officer Lockett entered the residence and testified that Mr. Grant was flailing his arms violently and was still upset with the female occupant of the home. Officer Lockett then asked Mr. Grant to exit his house and speak with Officer Montalto. While exiting the home, Mr. Grant shoved the front door, causing it to hit against an iron rail on the front porch. Officer Lockett testified that he decided to place handcuffs on Mr. Grant to permit him to calm down and for the safety of Mr. Grant and those around him. He testified that he attempted to do this while on the front stairs to the home and that Mr. Grant turned around and bear hugged him, necessitating Officer Lockett to grab Mr. Grant and strike him at least ten times in the head and torso.
In contrast, plaintiffs testified that their argument had ceased by the time Officers Lockett and Montalto arrived. Plaintiffs testified that Mr. Grant spoke loudly while inside the home but did not act violently. Mr. Grant testified that after exiting the home, Officer Lockett grabbed him from behind, throwing him over the railing on the front porch. Plaintiffs testified that while on the ground, both Officers Lockett and Montalto repeatedly kicked and punched Mr. Grant. Eventually, the officers handcuffed Mr. Grant. Following the incident, Mr. Grant received medical attention from paramedics and was transported to the hospital.

Alonzo Grant was charged with harassment in the second degree, domestic disorderly conduct, and resisting arrest. These charges were later dropped. Grant's lawsuit alleges excessive force and false arrest, and his wife sought damages for loss of consortium.

At trial, Judge Hurd allowed plaintiffs' lawyers to introduce records from the Citizen Review Board, a city entity that investigated the incident separate and apart from the lawsuit. These records credited plaintiffs' version of events. The Court of Appeals notes these hearsay records might be admissible under the business records exception, but they do not qualify because the records were not made contemporaneous with the incident and they do not concern the kind of regularly-conducted activity contemplated by this exception. But this evidentiary error was harmless, the Court of Appeals says, because plaintiffs had a particularly strong case against the defendant officers in that, apart from plaintiff, five other eyewitnesses corroborated his story (the incident took place in front of the neighbors) and the officers had no such corroborators and, in addition, their testimony had significant inconsistencies. Also, the officers admitted to punching plaintiff  dozen times. Video evidence also supports Alonzo's account. Further informing the harmless error analysis is that plaintiffs' lawyer barely mentioned the CRB records in summation,  and the city's own investigation into the incident found the excessive force allegations were unsubstantiated (balancing out the CRB records).

The Court of Appeals identified another evidentiary error: Judge Hurd allowed the Onondaga County District Attorney to testify that he had dropped the charges against Alonzo, and it admitted the DA's letter to that effect into evidence. The DA said the charges against Alonzo were not legally viable, suggesting he was vouching for Alonzo's credibility. The DA should not have testified, the Court of Appeals says, because jurors may be unduly swayed by testimony from such a high-ranking and neutral public official, and some of his testimony "opined on an issue closely related to the central questions left for the jury," that is, the viability of the criminal charges against Alonzo. But this evidence, too, was harmless, the Court of Appeals says, not only because plaintiffs had a strong case with independent corroborating witnesses, but because the DA also testified that he was not expressing an opinion on the officers' credibility and had not determined whether they had probable cause to arrest Alonzo.

The next trial issue is whether the district court properly had the jury determine whether the officers had qualified immunity. That immunity allows public officials, including police officers, to avoid liability if they acted reasonably under the circumstances. Courts regard qualified immunity as a quasi-legal/factual inquiry. The jury tells the judge what happened by answering special interrogatories, and the judge then decides if those facts violated clearly-established law. For this reason, allowing the jury to determine the qualified immunity issue on its own was an abuse of discretion, the Second Circuit says. But that does not warrant a new trial because "even if the district court had properly reserved the ultimate legal decision for itself, the facts the jury necessarily found in rendering its decision foreclosed any argument that it was objectively reasonable for Defendants to believe that their actions did not violate Alonzo's rights."

That's a lot of evidentiary and trial-related rulings that the Court of Appeals held were an abuse of discretion. But this ruling tells us that even challengeable evidentiary rulings at trial do not necessarily warrant a new trial, as the harmless error standard allows the appellate court to determine if the errors really made a difference in the outcome. 

 

The realities of habeas corpus

This habeas corpus decision reminds us that it's quite hard to get a new criminal trial on the basis that your attorney did a bad job, resulting in your conviction.

The case is Waiters v. Lee, a summary order issued on November 9. Waiters was convicted of murder in the second degree, or intentional murder. He claims that his trial lawyer failed him in not asking the judge to allow the jury to enter a manslaughter verdict. Not requesting that jury charge, Waiters says, constituted ineffective assistance of counsel. He says the jury could have convicted him on the lesser charge and found he acted recklessly because he was intoxicated at the time of the homicide.

This argument could work. But it doesn't work because of the way habeas corpus law works in the federal system. First, to win an ineffective assistance argument, you have to prove that "every fairminded jurist would agree that every reasonable lawyer would have made a different decision." I know of no more deferential standard of review than that one. Also, under the 1996 federal habeas law, you have to show that the constitutional violation contradicted clearly-established Supreme Court authority. That's also tough to prove, since the Court has not addressed every conceivable criminal issue. You need a slam-dunk case to win a habeas case.

There are no Supreme Court cases that hold that a criminal attorney must request a manslaughter charge in a case like this. Moreover, lower courts find that it is a matter of attorney strategy to request such a charge; strategy decisions like this are within the lawyer's discretion, and they can "go for broke" in deciding on what charges to request at trial. That's what Waiter's lawyer did at trial, and he specifically told the jury that the issue was not whether Waiters was reckless. Strategy decisions like this are almost unreviewable in a habeas corpus proceeding.

First Amendment sign challenge fails against Village of Scarsdale

You can challenge a village or town ordinance under the First Amendment if it unduly restricts political signage or vests too much discretion in local officials in determining which signage to allow or disallow. This case fails because the sign law was clear and did not allow the locals to censor political signage.

The case is Berg v. Village of Scarsdale, issued on December 3. In the district court, plaintiff actually prevailed on one of his claims, but lost the rest. In the Court of Appeals, that victory is taken away and plaintiff loses the entire case. 

The decision first considers whether the sign law was too vague under the First Amendment. If that were the case, plaintiff would win, as vagueness dissuades people from posting political or other noncommercial signs and also allows the local yokels to pull down signs based on an unclear statute. But this law is actually quite clear, the Court of Appeals (Pooler, Bianco and Komitee [D.J.]) says, in prohibiting signage in public rights-of-way, including sidewalks, telephone poles, or other objects along the street. The Supreme Court allows municipalities to regulate speech this way to eliminate distracting clutter along the road. Anyone reading this ordinance would know it prohibits signage along the right-of-way, the Court says, and if you want to do so, you have to get permit. Nor is the word "obstruct" vague under the First Amendment. Applying the dictionary definition, the Court says obstruct means blocking or impeding public space.

Plaintiff also says the village selectively enforced its sign law by bringing down the hammer on political signs but not commercial signs in the rights-of-way. But the statistics show otherwise, the Court says, and the village has actually favored political signs over commercial signs. The village actually kept records on all of this. Plaintiff tries to get around this by presenting photos of commercial signs that were allowed to tarnish rights-of-way. But the Court says this is not enough to win the case because we don't know if such lawbreaking was brought to the attention of municipal authorities who then ignored the complaints. In light of this evidence favoring the village, plaintiff's victory in the district court on the commercial-sign favoritism is vacated, as the evidence simply does not support that claim. And, the Court of Appeals says for good measure, while the village favored political over commercial signs, plaintiff would not have any standing to challenge that kind selective enforcement because he did not post any commercial signs.

The cases addressing political signage in the Second Circuit often result in a victory for the plaintiff, as town and village officials forget that the First Amendment governs such signage, and it is often not difficult to prove that political signage (which many people dislike since they overpopulate the community during election season) get the short end of the stick while commercial signage (which everyone loves because they promote local businesses) often has free reign. I have brought and won many of these cases, which municipal lawyers should read to avoid getting their communities sued. These cases include Knoeffler v. Town of Mamakating, 87 F. Supp. 2d 322 (SDNY 1998), Sugarman v. Village of Chester, 192 F. Supp. 3d 282 (SDNY 2002), and Lusk v. Village of Cold Spring, 418 F. Supp. 2d 314 (SDNY 2004), aff'd/rev'd 475 F.3d 480 (2d Cir. 2007).

Fair Housing Act claim against male fraternity houses at Yale is dismissed

This case alleges that nine fraternities at Yale University are liable under the Fair Housing Act in connection with the same-sex membership practices of the fraternities. The district court dismissed the case on constitutional standing grounds, and the Court of Appeals affirms.

The case is McNeil v. Yale Chapter of Alpha Delta Phi International, a summary order issued on November 15. Plaintiffs alleged they were sexually assaulted and harassed at these fraternity houses, which only admit members on the basis of gender, that is, men. They are suing the fraternities and the landlords who own the fraternity houses. Since the fraternities are discriminatory organizations, plaintiffs claim, the landlords are violating the Fair Housing Act. In dismissing the case, the district court identified this deficiency in the case under Rule 12:

Plaintiffs' Fair Housing Act claim revolves around the denial of membership by fraternities. Under Plaintiffs' construction, a landlord would be responsible for addressing housing discrimination based on a rental agreement with tenants, tenants who belong to an organization with allegedly discriminatory membership practices. The predicate act for discrimination, therefore, is denial of membership; the separate act of denial of housing does not necessarily follow, because other factors could create the same circumstances.

As they admit, "Plaintiffs repeatedly sought membership in the Fraternities, which would have entitled them to housing benefits ... [b]y denying Plaintiffs membership, Defendant fraternities effectively denied them housing rights that would have been available to them but for their gender." At no point do Plaintiffs allege they sought to rent the same properties as the fraternities and were denied based on their gender.

The alleged injury here, the denial of housing, thus is not fairly traceable to the conduct of the landlords, but instead to the failure of the Fraternity Defendants to admit women. Here, the converse also is true. That is, the alleged denial of housing by the Fraternity Defendants is not linked to a policy regarding housing, which the landlords—not the Fraternity Defendants —control, but rather to the Fraternity Defendants' decision not to admit women. In other words, there is no direct effort to make housing unavailable to women.

The "fairly traceable" language derives from Supreme Court caselaw on standing. The Court of Appeals agrees with the district court, noting that plaintiffs did not allege they sought housing with a fraternity or expressed any interest in such housing. But the Court does allow plaintiffs an opportunity to amend the complaint to correct this pleading deficiency. 

 

Second Circuit strikes down Department of Education vaccine mandate as unconstitutional

The Second Circuit has enjoined the City of New York from enforcing a  mandatory vaccination order against people who work for the public schools. The Court reasons that the religious accommodation provisions are probably unconstititional

The case is Kane v. DeBlasio, issued on November 28. The Second Circuit rarely issues full opinions over the weekend, but this one came out on Sunday, less than a week after oral argument. The expeditious ruling reflects the urgency of the case, yet another in the Covid-19 rulings that the courts have been grappling with for more than a year, as judges try to balance constitutional standards with the public interest in stopping the spread of the virus.

The Department of Education order, issued on August 24, said that all DOE staff must receive at least one dose of the vaccine by September 27. Unvaccinated employees would be placed on leave without pay without losing their health insurance. Since this order omitted any provision for religious accommodations, the United Federation of Teachers took the case to an arbitrator, who issued accommodation standards that allowed employees to submit a request that is "documented in writing by a religious official," such as clergy. 

Under the arbitrator's ruling, the accommodation request would be denied if "the leader of the religious organization has spoken publicly in favor of the vaccine," as discerned from the media, including an online source. The request would also be denied if the objection is personal, political, or philosophical and not religious. I don't know where the arbitrator came up with these standards but the Court of Appeals (Livingston, Kearse and Lee) notes that the City's lawyers conceded on appeal that the arbitrator's ruling was "constitutionally suspect." Concessions like that are taken into account by judges, who appreciate the lawyers' candor.  

The Court of Appeals finds that the vaccine mandate is not unconstitutional on its face, as it does not directly single out people for their religious views and it also applies to everyone, whether they are religious or not. But the arbitration award likely violates the religious freedom provisions of the Constitution, for a variety of reasons.

First, the arbitration ruling allows City officials to pass judgment on the legitimacy of someone's religious beliefs, as the reasonable accommodation test devised by the arbitrator provides that "exemption requests shall be considered for recognized and established religious organizations" and requests will be denied if your religious leader has spoken publicly in favor of vaccines. Courts and arbitrators cannot deny a religious accommodation based on someone else's religious views, even a religious leader's views. 

In addition, the accommodation standards have been applied differently by other arbitrators in reviewing religious accommodation requests. These decisionmakers appears to have substantial discretion in making these decisions. That is improper under the First Amendment's religion clause. 

To win an injunction, you also have to show that, without the immediate injunction, you will suffer irreparable harm. Losing money is usually not enough to show irreparable harm. The Court finds in favor of the plaintiffs on this issue because they face the threat of permanent discharge from their public employment. You do not see this reasoning very often, and the Court further explains itself in footnote 18, noting this is an "unusual case" because (1) plaintiffs have shown the likely violation of their First Amendment rights, and (2) the accommodation procedures at issue in this case require the plaintiffs to forego a lawsuit to avoid harm and the City has consented to entry of an injunction that will provide for these claims to be promptly decided under constitutional procedures. 

When is management required to start the interactive process under the Americans with Disabilities Act?

In 2008, the Court of Appeals made it easier for employees to get a reasonable accommodation under the Americans with Disabilities Act even when they don't specifically request an accommodation. The employer has to start the interactive process if it knows the employee has a disability and needs an accommodation. But that doctrine has its limits, and this case highlights that.

The case is Dolac v. County of Erie, a summary order issued on November 12. The district court said plaintiff cannot state a claim under the ADA. The Court of Appeals agrees that plaintiff cannot state a prima facie case because all she did was give her employer three notes from a nurse practitioner stating "off work DBL," "continue DBL," and "continue disability." 

In a prior case, Costabile v. NYC Health & Hosp., 951 F.3d 77 (2d Cir. 2020), the Court of Appeals said that while the plaintiff sent his employer medical notes that updated management about his condition and suggested he needed leave, the Court could not "reasonably infer from the general allegation that the updates adequately informed Defendants about the nature of Plaintiff's condition such that Defendants should have known he was disabled and that Plaintiff was thereby excused from the requirement that he request an accommodation." I would guess that Costabile is the employer's go-to case on issues like this, when plaintiffs invoke Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008), the case I mentioned in the first paragraph about management's obligation to start the interactive process when it knows plaintiff is disabled and needs an accommodation.

This case is like Costabile, the Court of Appeals (Jacobs, Pooler, Gujarati [D.J.]) says. Dolac's missives to management were not enough to trigger the interactive process. Here is the reasoning:

Here, Dolac alleges she sent three notes and the exhibits appear to indicate she refused to engage in further communication. In her briefing, Dolac argues that she was suffering from extreme stress and therefore could not communicate with her employer. But she cites to no cases that support her proposition that she did not have to communicate with her employer. Her interpretation would put the onus on the employer to determine whether its employee was suffering from a disability and then inquire as to what accommodation the employee would seek—actions not required by either the statute or case law.

The moral of the story is that, if possible, the employee must be explicit in asking management for an accommodation. If she fails to do so, a good lawyer may cite Brady in litigation to show that management should have known all along that an accommodation was needed. But Brady does not save every case. 

 

2d Circuit upholds $355,000 punitive damages award in police beating case

The Second Circuit has sustained a punitive damages award in the amount of $355,000 where a jury found that three police officers subjected the plaintiff to excessive force and then took steps to cover up the unlawful conduct.

The case is Jennings v. Yurkiw, issued on November 17. The jury found the officers beat up plaintiff so badly in the context of a domestic dispute in Brooklyn that he fell in and out of consciousness. The officers then fudged the paperwork to make it look like it was plaintiff's fault in trying to run away when the officers said he was under arrest. Video evidence proved that plaintiff was beaten so badly he could not walk on his own and therefore could not have run away. The Second Circuit ruling details other ways the police covered up their beating. 

There were two trials. The first trial yielded a jury verdict for plaintiff in the amount of $500,000 in compensatory damages and $2.5 million in punitive damages spread out over three defendants. Post-trial, the court reduced the compensatories to $115,000 and the punitives to $140,000. Plaintiff opted for a second trial (which is your right if you don't like the way the trial court reduced the damages). At the second trial, the jury awarded $90,000 in compensatory damages and $355,000 in punitives. Note that the second jury was not as generous as the first jury.

The City appeals from the $355,000 punitive damages award, arguing it shocks the conscience, which is the legal standard. The Second Circuit has taken a skeptical eye toward punitive damages in recent years, concerned that the jury usually has no concrete legal standards to based its decision on, and the belief that some punitive damages awards are just too high. The City was counting on that in this appeal, but the Second Circuit (Parker, Menashi and Lohier) rejects that argument and finds this amount was appropriate in light of the seriousness of the beating and coverup by the police officers. Here are some excerpts from the ruling:

The officers attempt to diminish the seriousness of their misconduct by characterizing their unprovoked beating as “a few minutes of violence against [Jennings]." But, “a few minutes of violence” is not a trivial matter. The jury heard testimony that Jennings received an unprovoked beating at the hands of the officers. It heard that LaGrandier snatched Jennings’s three-year-old son from his arms, grabbed Jennings and pinned him against the wall. Yurkiw then struck Jennings in the face with such force that he fell to the ground, at which point he began experiencing “all kind of blows coming from everywhere.” The jury heard testimony from Jennings that he never threw punches at any of the officers, attempted to flee, or otherwise resisted arrest. Even though Jennings had  visible injuries, he was brought straight to the police precinct, placed in a cell, chained to a bar, and denied the medical attention he requested.

Moreover, the Court said, the other officers did not intervene to stop the attack, and they covered up their misconduct by falsifying charges against plaintiff, providing a false account of the beating, and perjured trial testimony. The latter point is significant. You don't see too often the Court of Appeals considering trial behavior as part of the punitive damages equation. But it is fair to say the Court is very unhappy with how the officers handled this, and they allow the $355,000 in punitives to stand.