Probable cause for the officers who arrested plaintiff on sexual touching charges

This case reminds us once again how difficult it is to maintain a false arrest claim even when the underlying criminal charges are dismissed following a trial in criminal court. The victorious defendant still has to show the police officers lacked probable cause to make the arrest. This plaintiff cannot do so.

The case is Keyes v. City of New York, a summary order issued on January 13. Plaintiff was arrested and charged with forcible touching and third-degree sex abuse after police officers claimed to see him touching numerous womens' buttocks on the sidewalk in New York City. The criminal court judge dismissed the charges following a bench trial. That led plaintiff to file this false arrest case.

Plaintiff said he touched no one. But the arresting officers "each testified to separately following Keyes after he caught their attention by walking very closely to female pedestrians and appearing to look at their waistlines, creating a concern that he was pickpocketing.  According to both officers, they observed, from different vantage points, that Keyes was touching the buttocks of multiple women." While, the Court of Appeals notes, plaintiff testified that he did not touch any of the women, "Keyes has submitted no evidence that disputed the officers’ testimony that he walked closely behind multiple women even though there was room on the sidewalk for him to maintain more distance." Moreover, the Court (Bianco, Sack and Nathan) says, "although Keyes denied touching the women, he never testified to where his hands were while he walked closely behind these women, and it is thus uncontroverted that, at the very least, his hands were in close proximity to the women’s backsides. In other words, these uncontroverted facts were sufficient to establish probable cause for his arrest, even if the officers ultimately were mistaken in their observations."

This is how probable cause works under Section 1983. The police officers are allowed to get it wrong so long as they reasonably believed you committed an offense. Their version of some of the facts, which plaintiff does not controvert, is close enough. They reasonably thought plaintiff was touching womens' buttocks, even though he claims he was not. While the factual disputes were enough to ensure plaintiff's acquittal in criminal court, he cannot recover any damages in civil court.

Appellate Division reinstates racial discrimination claim

In this case, the plaintiff worked for a bakery. She went over her supervisor's head and spoke to Human Resources about a work-related issue. Her supervisor was offended at this gesture and made a racial comment. Plaintiff is Black. She was fired shortly thereafter. The trial court dismissed the case under CPLR 3211, but the Court of Appeals has reinstated the case.

The case is Kirby v. Carlo's Bakery, issued on January 10. I argued the appeal. Under the CPLR (and federal practice), defendants often try to have the case dismissed before the parties litigate the facts in discovery. They can do this if the complaint, on its face, does not assert a claim. That's what happened here, and Supreme Court dismissed the case without any legal analysis, simply stating that it was granting the motion to dismiss for the reasons set forth in the defendant's brief. 

The First Department summarizes the case this way: "when plaintiff's supervisor, Pernini, found out she went to HR, he said this to plaintiff: plaintiff, a Black woman, alleges that her supervisor, defendant John
Pernini, irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, 'Why did you call HR? Blacks . . . I should have never hired her.'” Plaintiff was fired a few days later. Defendants claimed she was fired for calling in sick, but the complaint does not concede that was the real reason. 

The case is reinstated and will proceed to discovery because plaintiff sufficiently pleads that she was fired because of her race, as Pernini's comment permits the inference that she was fired because of her race.

irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, “Why did you call HR? Blacks ... I should have never hired her.”

Kirby v. Carlo's Bakery 42nd & 8th LLC, No. 17044, 2023 WL 138854, at *1 (N.Y. App. Div. Jan. 10, 2023)

irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, “Why did you call HR? Blacks ... I should have never hired her.”

Kirby v. Carlo's Bakery 42nd & 8th LLC, No. 17044, 2023 WL 138854, at *1 (N.Y. App. Div. Jan. 10, 2023)

Appellate Division recognizes whistleblower claim in COVID-19 health dispute

The Appellate Division has held that an employee may bring a private-employer whistleblower claim under state law where he was fired after complaining that his boss's son had entered the workplace during the early COVID-19 period without a mask or any social distancing. 

The case is Lawlor v. Wymbs, Inc, issued on January 10. I briefed and argued the appeal. 

Under Labor Law 740, the whistleblower law, you cannot get fired for objecting to management about a specific threat to public health and safety. Under the statute that was in effect at the time, "[a]n employer shall not take any retaliatory personnel action against an employee because such employee . . . discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation" and that "creates and presents a substantial and specific danger to the public health or safety." The statute also prohibits retaliation where the employee "objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation." 

At the height of the COVID-19 crisis, Lawlor was fired after he complained to his boss, that a non-employee was repeatedly entering the workplace without taking precautions to prevent the spread of COVID-19. This individual, the boss's son, was neither wearing a mask nor socially-distancing, just as the virus was filling up hospitals with sick patients and causing an unfathomable number of deaths. The  son thus placed at risk everyone who worked in the building, as well as their families, neighbors, and others in the community. Rather than take Plaintiff's concerns seriously, the boss fired Plaintiff, telling him, "fuck you" and "this pissed me off to no end."

Does Plaintiff have a case? Supreme Court said he does, and the Appellate Division affirms. The employer argued that Plaintiff cannot win because he did not object to the violation of any laws or regulations, and that the Governor's Executive Orders that took effect in early 2020 to deal with the COVID-19 crisis don't count since they were not statutes or regulations. The Appellate Division disagrees, stating, "the allegations that plaintiff was terminated after complaining in June 2020 about his employer’s practice of permitting a nonemployee to enter the workplace without wearing a mask or socially distancing support plaintiff’s claim that defendant 'violated various laws, rules or regulations' targeting COVID-19 safety precautions in the workplace, including Executive Order 202.8 and related executive action." 

The employer also argued that Plaintiff did not raise an objection to anything that would create a substantial and specific danger to public health. The Appellate Division, which is still requiring lawyers to wear masks in the courtroom, disagrees, stating, "It is hardly 'mere speculation' (Villarin v Rabbi Haskel Lookstein School, 96 AD3d 1, 7 [1st Dept 2012]) that, early in the COVID-19 pandemic and before vaccines were available, permitting indoor congregation without masks and without practicing social distancing would have exposed defendant’s employees (as well as their families and anyone else with whom they came in contact) to infection by a highly contagious and deadly virus."

State Court of Appeals declines to expand police liability in domestic violence cases

The New York Court of Appeals issued two rulings on the same day focusing on the "special relationship" rule that makes it difficult to sue governmental agencies when someone is injured or killed because of the government's failure to protect a victim. At this link, I discuss a case from Erie County dealing with a developmentally-disabled woman who was killed by family members after Child Protective Services and Adult Protective Services had dismissed prior reports of abuse toward the victim. This case involves the police in New York City. Same result.

The case is Howell v City of New York, issued on November 22. A special relationship exists under New York case law, in part, when the crime victim justifiably relies on police promises that they will protect her from third-party violence. The law books are filled with cases where plaintiffs could not prove any special relationship. This case examines the special duty principle under a particularly difficult and sympathetic set of facts: someone violated a court-ordered order of protection and caused serious physical injuries. If these facts do not expand the special relationship test, then nothing will. 

In this case, the victim's ex-boyfriend pushed her out of a third-story window in violation of an order of protection. Plaintiff argued that the order of protection created a special relationship between her and the police. But the Court of Appeals, in a divided vote, says plaintiff cannot prove any special relationship because she testified she had no contact with the police on the day prior to the attack, and the officers never told her that the ex-boyfriend would be arrested if he violated the order of protection. Her testimony demonstrates that she did not relax her vigilance based on any police promises that they would protect her, and the police were not on the scene or in a position to provide any assistance if necessary. Nor did the police promise to provide any such assistance at some reasonable time. 

In short, the mere existence of an order of protection does not create a special relationship, and any contrary rule would expand governmental liability in violation of the policies underscoring the special duty rule. The Court notes that nearly 200,000 such orders were issued in domestic violence cases in 2021. If we want to law to change in this area, that will have to be accomplished by the State Legislature, not the courts. 

In dissent, Judge Wilson states:

Orders of protection are supposed to mean something. Ms. Howell called the police to report violations of the September 26th order on October 7, October 15, October 18, October 29, November 5, November 6, November 12, and November 13—each time explaining that Mr. Gaskin had violated the order of protection. Three times in the weeks leading up to this incident, the same two police officers, defendants Mosely-Lawrence and Meran, responded to her calls. As explained below, they assured Ms. Howell that they were handling the situation, yet completely failed to do so. Their actions and inactions rendered Ms. Howell's multiple orders of protection meaningless, constituting both a dereliction of their duties and an affront to the courts.

. . . 

Ms. Howell should be able to pursue her claim for damages against the City, by establishing that the City bore her a "special duty" through any of three avenues: (1) the Domestic Violence Intervention Act (DVIA) establishes a statutory special duty, and its violation by the officers provides a basis for relief; (2) a triable issue of fact exists as to whether the officers assumed positive control of a dangerous situation; and (3) a triable issue of fact exists as to whether the officers' statements and conduct established representations on which Ms. Howell justifiably relied. 

Judge Rivera also issues a passionate dissent, stating, "This appeal is a cautionary tale of the continued failures of our legal system to effectively address intimate partner violence and protect survivors, made worse by the majority decision. If, as the majority concludes, plaintiff cannot pursue her claims and test her allegations in court because the officers made it clear that they would not comply with the law, then how can—and why should—survivors trust our legal system?"

NY Court of Appeals will not modify the "special duty" rule in municipal tort claims

A harsh reality for law students is learning that the police do not have a duty to protect you from harm by a third-party. There are exceptions to this rule, but the cases they use to teach this principle are always difficult and even heartbreaking. One exception is the "special duty" rule, which says under some circumstances the police have to protect you, but that exception is difficult to prove, and most cases asserting the special duty principle fail. This is one such difficult case.

The case is Maldovan v County of Erie, issued by the New York Court of Appeals on November 22. The facts are horrendous. The victim, Laura, was a young woman with developmental disabilities. CPS investigated an allegation that she was being abused, ultimately closing the file and determining the complaint was unfounded. A subsequent abuse complaint was investigated by Adult Protective Services, which closed out the case upon finding the allegations were unfounded. Later on, members of Laura's family tortured and murdered her. Are the county protective agencies liable for Laura's murder? The theory is that the agencies were in a position to help Laura and prevent her murder.

The county is only liable if there was a "special relationship" between Laura and the county such that the county had to protect her. You can prove such a relationship if the governmental agency, in part, caused the victim to rely on its assurances that it would protect her. Laura's estate loses the case because the county did not induce any justifiable reliance in the way it responded to Laura's complaints. The relevant factors in cases like this are found in Cuffy v. City of New York, 69 N.Y.2d 255 (1987)

The estate argued that victims like Laura, who are adults (or children) of diminished capacity, should not be required to prove justifiable reliance under Cuffy. The Court of Appeals, in a divided vote, declines to modify the special relationship test in this particular case, where the victim had a competent adult looking out for her interests. In this case, that person was Richard, the victim's brother, who called CPS and APS on Laura's behalf. As the record does not show that Richard relaxed his vigilance as a consequence of any assurances by county CPS and APS workers, there was no special relationship, and this tragic lawsuit cannot proceed. 

A long (and solitary) dissent by Judge Wilson notes that developmentally-disabled adults are often abused by family members and others, and that when these disabled adults are released from institutions, CPS and APS are obligated to ensure their safety. This case, Judge Wilson says, "immunizes the very agencies bound by law to protect vulnerable adults, when the legislature has clearly stated those agencies do not enjoy immunity from grotesque agency failures such as those turning a blind eye to Laura's horror."

Muslim inmate can show irreparable injury from prison laundry policy

The inmate/plaintiff in this case alleges that prison policy violates his rights under both the Free Exercise Clause and the statute that similarly protects religious freedom. The policy required plaintiff to launder his clothing with those of non-Muslim inmates who consume beef and pork products. This issue is interesting but the Court of Appeals does not address the merits, holding instead that this case is ripe for judicial review.

The case is Tripathy v. Lockwood, a summary order issued on December 19. Plaintiff says the laundry policy gives him few alternatives, such as washing his clothing by hand or going long periods of time without washing his clothing. Plaintiff sought a preliminary injunction against this policy, but the district court denied that relief, holding that he waited too long to bring the lawsuit, which means there could not have been irreparable harm to plaintiff's religious freedom rights. Was this the right call? It was not, says the Court of Appeals (Chin, Carney and Robinson), which summarizes the state of the law in this area and reminds us that religious and other constitutional freedoms are paramount.

While a delay in seeking an injunction may support a finding that the plaintiff did not suffer irreparable harm in challenging a policy, cases that stand for that proposition do not involve constitutional rights, the loss of which, even for minimal periods of time, is considered "irreparable injury" for purposes of seeking a preliminary injunction. The same is true for cases brought under the First Amendment and Religious Land Use and Institutionalized Persons Act (RLUIPA). This constitutional principle, and the fact that plaintiff as an inmate had logistical difficulties in bringing this case in the first place, suggest irreparable harm. What the Court is saying that an injunction against an unconstitutional policy is never tardy.

On remand, the Western District of New York has to decide if, apart from irreparable harm, plaintiff can show he is likely to win the case on the merits, i.e., whether the DOCCS policy violates the rights of Muslim inmates.

When does a term sheet count as the actual settlement agreement?

Courts like settlements because they clear out the docket and provide finality to the lawsuits. At the end of a successful mediation, the parties close out the day with handshakes and everyone leaves in a decent mood, though a good mediator will tell you that a desirable settlement leaves both sides feeling they got the shaft. Still, the day ends on a positive note. Things sometimes go south when the parties start to negotiate the details, many of which may have nothing to do with money and instead focus on confidentiality and other things. This case became kind of a mess and shows how a settlement agreement can cause confusion and ultimately cause the judge to just adopt the terms of the term sheet and be done with the case.

The case is Tangtiwatanapaibul v. Tom & Toon, Inc., a summary order issued on December 12. Under the written settlement term sheet that the parties agreed to in this wage and hour case, the parties were to prepare a detailed settlement agreement to formalize the deal. Over the course of the following year, the parties went back and forth on the terms of the formal agreement, each side declining to sign off on the other side's language. The magistrate judge eventually closed out the case and approved the proposed settlement under the term sheet (and not the language in the drafts that went back and forth), as per the Second Circuit's procedures in Cheeks v. Pancake House (2015), which says that judges must approve any wage and hour settlement.

Plaintiffs appeal, claiming in part that the term sheet was not an enforceable agreement. But the Court of Appeals (Kearse, Park and Perez) disagrees, noting it has held in the past that term sheets can qualify as binding settlement agreements even if the parties contemplated formalizing the agreements at a later date. We have a totality fo the circumstances analysis in cases like this, considering whether the parties expressly said they would not be bound by the term sheet, whether there was partial performance of the contract, whether the parties agreed to the terms of the alleged contract, and whether the agreement is the kind that litigants will normally commit to writing. The case for these factors is Winston v Mediafore, 777 F.2d 78 (2d Cir. 1985). 

These factors allowed the magistrate judge to adopt the term sheet as the settlement, as the parties stipulated in the term sheet that it was in fact a binding agreement as to the material terms, the parties partially performed their obligations under the term sheet by requesting the magistrate to continue jurisdiction over the case and requesting dismissal of the case post-term sheet, and defendants made some payments to plaintiffs as per the agreement. This all means the term sheet is the final settlement agreement, and the case is over.