This is why it is hard to win false arrest cases

As if this actually bears repeating, and it does not, probable cause is a defense to any false arrest claim, and probable cause is a low bar for the police to satisfy. This means many false arrest claims never see the light of day, even if the criminal defendant was found innocent in criminal court, and even if the charges against the criminal defendant were dropped prior to trial. This case is a good example of how all of this works.

The case is Dorsey v. Gannon, a summary order issued on March 29. Plaintiff was arrested and the charges were dismissed, but that does not give plaintiff a trial. What would give her a trial is proof that no reasonable officer would have arrested plaintiff under the circumstances. Again, that's a low bar for the police. When I say "no reasonable officer," I mean "no reasonable officer." The courts do not want the police to avoid arresting someone in fear that there might be a lawsuit if the arrest turned out to be wrong. You can only sue if the arrest was totally unreasonable. Qualified immunity has been expanded over the years, making it difficult for plaintiffs to overcome that defense. There was talk a few years ago of eliminating this immunity, but that movement has stalled.

What happened here is that the police reviewed surveillance video of a woman with a fake Pennsylvania driver's license trying to cash forged checks at banks in the metropolitan area. A Pennsylvania detective told the NYPD that the video appeared to depict plaintiff, and he provided a photograph of plaintiff and her criminal history. Plaintiff's probation officer also agreed the photo depicted plaintiff. Solid case, right?

But wait! After plaintiff provided alibis proving she was someplace else when the surveillance footage was taken, the charges were dismissed. Plaintiff was innocent!

If you know false arrest law, you know where this is going. Yes, plaintiff spent two days in jail before posting bail, which is a serious hardship and an injustice. But the officers did reasonably think it was plaintiff in the video footage, based on corroborating evidence. The arrest, in hindsight, was bad. But the Court of Appeals (Jacobs, Sullivan and Leval) finds the police acted reasonably in taking her into custody. Since the police dropped the charges after the alibis exonerated her, there is no reason to sue the police under 42 U.S.C. 1983, the national civil rights law.

Excessive force claim will proceed to trial

The plaintiff claims a police officer in Greenwich, Connecticut subjected him to excessive force after someone called the police following plaintiff's anxiety attack in his partner's residence, when he threw things around and destroyed property. The district court denied summary judgment for the officer, which would normally send this case directly to trial. But the officer appeals, claiming entitlement to qualified immunity. There can be no appeal, however, without first resolving disputed facts surrounding the use of force. There will be a trial.

The case is Moran v. Greco, a summary order issued on April 12. When Officer Greco arrived on the scene, he told plaintiff to lie on the ground outside after the officers decided to place him under arrest. But plaintiff instead stood up and began to walk way, at which time Greco and another officer brought him to the ground and turned him onto his stomach, but plaintiff resisted handcuffing. A series of officers then used force to effectuate the handcuffs. At some point, this force caused plaintiff to suffer a broken arm, causing "an audible popping sound." This happened after Greco threatened to break plaintiff's "fucking arm," to which plaintiff responded, "Why would you do that? It's already locked."

Excessive force claims are not always amenable to summary judgment, because the parties often dispute the relevant facts: the police claim they had to use force to bring the suspect under control, and the suspect claims the officer used too much force. These claims can prevail even if the plaintiff resisted to some extent. "Excessive" force is often an issue for the jury. That does not mean the plaintiffs often win at trial, but courts do not want to take that decision away from the jury. There is a fine line between excessive and reasonable.

For police officers, one way to win is to assert qualified immunity, which means the officers acted reasonably under the circumstances, even if 20/20 hindsight proves the officers went too far. If immunity is denied, the officer can take an immediate appeal. But that immediate appeal (which is otherwise disfavored in the federal system) cannot proceed unless the undisputed facts show the officer acted reasonably. In a swearing contest like this, it is difficult to agree on the facts, and since the plaintiff often argues that the force was gratuitous, the officers' motion for qualified immunity will often be denied. That is what happened here. As the Court writes:

Here, the facts viewed in the light most favorable to Moran are that Officer Greco torqued Moran’s arm forward causing it to fracture, and that, at the time Officer Greco shifted Moran’s arm, Moran was lying face down on the ground, surrounded by six officers who were either pinning Moran to the ground or, in the case of Officers Tornga and Greco, holding Moran’s wrists. On those facts, a rational jury could find that, at the time of Officer Greco’s use of force on Moran’s left arm, Moran was no longer actively resisting arrest and that the use of force on that arm— which caused it to break—was gratuitous and objectively unreasonable under the totality of the circumstances.

While the officers point to evidence suggesting they acted reasonably, the Court of Appeals (Sack, Chin and Bianco) holds it does not even have jurisdiction to resolve the appeal. Off to trial we go.

 

No taxpayer standing to challenge Rockland County zoning law favoring Orthodox Jews

A citizen's group and three named plaintiffs sued this community in Rockland County, claiming that a new zoning law for places of religious worship violates the Establishment Clause of the First Amendment, which mandates church-state separation. The plaintiffs lose. Why? They lack standing to sue.

The case is Citizens United to Protect our Neighborhoods v. Village of Chestnut Ridge, New York, issued on April 5, eleven months after oral argument. Accommodating the Orthodox Jewish community, following contentious public hearings, the Village amended its zoning laws so that religious organizations can more easily build places of worship, causing plaintiffs to worry that the new zoning laws would "radically transmogrify the character of the Village." They sued in 2019. Five years later, we have a definitive resolution from the Second Circuit (Jacobs, Kearse and Sullivan), though not on the merits of the appeal. The Court instead says plaintiffs lack standing to bring this lawsuit.

Plaintiffs assert municipal taxpayer standing, which applies in certain cases alleging Establishment Clause violations if the taxpayer can show "a measurable appropriation or loss of revenue attributable to the challenged activity." But to gain standing this way, the plaintiff has to show the government made the appropriation "solely for the activities that the plaintiff challenges." In applying this test, however, courts will ensure that standing does not attach merely because the municipality's paid employees spent time on the challenged activities. Plaintiffs lose under this theory because, while they pay municipal taxes, those taxes are not spent or lost on the enforcement of the new zoning law. Nor does it matter that the village spent money in passing the new zoning law. Plaintiffs' taxpayer standing arguments are simply too generalized to allow them to bring this lawsuit.

Nor can plaintiffs assert "direct harm," or "direct exposure" standing, as they are not directly affected by the new zoning laws. They cannot show the new laws would cause them to be personally constrained or subject to control, such as if they were denied a liquor license simply because their establishment was situated near a church. Nor would the new zoning law affect plaintiff's religious practices. Since they cannot show the new laws would harm them personally, as opposed to the community as a while, there is no direct-harm standing.

How about "denial of benefits" standing? No dice, the Court says, as plaintiffs cannot show the new zoning law will cost them any benefits on account of their religion. The organizational standing argument also fails, as the new law does not directly regulate the organization and will not require the organization to expend or lose any resources. 

In the end, perhaps the only real way to challenge a zoning law like this is though the political process, the way you might challenge any other zoning law. Not all local laws can be challenged in court. 

Connecticut man may bring pre-enforcement challenge to anti-gun law

This case involves a man who wants to carry a gun in the state parks of Connecticut. He says he needs the gun for self-defense. The state has not yet arrested plaintiff over this, and it does not appear he actually entered any state parks with his gun. For that reason, the case was dismissed because the district court said plaintiff lacks standing to to bring this pre-enforcement lawsuit. The Court of Appeals reverses.

The case is Nastri v. Dykes, a summary order issued on March 29. Standing rules emanate from the Constitution. You need a concrete dispute before the courts can issue a ruling. So if plaintiff were actually arrested for carrying a gun into a state park, then proving standing is easy. But what about when the anti-carry law is on the books and plaintiff anticipates an arrest, even when no one specifically threatens him with enforcement?

To establish standing, plaintiff has to establish a "credible threat of enforcement." That is a "quite forgiving standard" for plaintiffs. The Court of Appeals (Jacobs, Leval and Sullivan) lays out the test:

we do “not place[] the burden on the plaintiff to show an intent by the government to enforce the law against [him] but rather presume[] such intent in the absence of a disavowal by the government.” In other words, we presume that a credible threat of enforcement exists, and require the government to “rebut” that inference by “disavowing” its intent to enforce the statute, or by pointing to “another reason to conclude that no such intent exist[s].”

Nor must plaintiff identify a threat of future enforcement to demonstrate a credible threat. Rather, "when it is apparent that the plaintiff's conduct is subject to the statute, we presume that there exists a credible threat of enforcement -- whether or not a plaintiff points to additional evidence -- and require the government to show otherwise."

Since the anti-carry law on the books prevents plaintiff from bringing a handgun into the state park, and Connecticut's Environmental Conservation Police has stated that his department would take enforcement action if its officers found a person inside the parks with an unauthorized firearm, plaintiff has standing to bring this case challenging the anti-gun law. And while the state claims the law is "moribund" and "not likely to be enforced because it has origins to 1918, the current statute was enacted in 1993 and amended in 2017, so it is not as outdated as Connecticut claims.

 

Railroad employee may proceed with disparate treatment claim against Metro North

The plaintiff in this case was an engineer for Metro North Railroad who was fired after his train collided with another train. At the time, plaintiff was on a "last chance waiver" that Metro North invoked at the time of his termination. Despite that alleged performance problem, plaintiff may sue for racial discrimination on a selective enforcement theory under Title VII.

The case is Davis v. Metro North, a summary order issued on April 3. One way to win your discrimination claim is to show you were disciplined or even fired for an alleged infraction for which a white coworker suffered no discipline. When that happens, you do not have to identify direct evidence of discrimination, such as racial comments or stereotyping. Plaintiff's case proceeds to discovery, and the Rule 12 dismissal is vacated, because a white comparator was not similiarly disciplined.

The complaint alleges that a white employee, who held the same position as plaintiff, also "received a last chance waiver and later was working on a train that collided with a passenger train," yet the railroad authorities did not terminate the white coworker "but instead gave her another last chance waiver." Plaintiff and the coworker were similarly-situated under Title VII because the coworker "was on a last chance waiver before her involvement in a train collision." 

Under the minimal pleading standards in the Second Circuit, most recently outlined in Buon v. Spindler, 65 F.4th 64 (2d Cir. 2023), plaintiff asserts a claim through these allegations. Discovery will focus on why plaintiff and not his white colleague was fired following the train collision. 

Plaintiff also alleges selective enforcement under the equal protection clause. The analysis is a little different from the Title VII disparate treatment claim. The Court of Appeals (Sack, Nardini and Perez) holds that this claim survives the motion to dismiss because the complaint "contains sufficient allegations of irregularities in Defendants' treatment of Davis after the collision that nudge his selective enforcement claim across the line from conceivable to plausible," the pleading test under Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Court writes:

The SAC alleges that (1) Defendants did not provide a pre-investigation meeting or a settlement offer to Davis, in violation of the MNR’s collective bargaining agreement with the union; (2) Defendants indicated prior to the investigation that they intended to terminate Davis for the collision; and (3) Defendants delayed the investigation of Davis. Generously construed, these allegations suggest that Defendants acted with malice towards Davis.

Low damages, high fees in FLSA case -- no reversible error

The Court of Appeals affirms a large attorneys' fees award in a wage-and-hour claim that did not produce a large damages award for the plaintiff.

The case is Caltenco v. G.H. Food, a summary order issued on March 29. After a three-day bench trial, plaintiff won the case and was awarded $7,682.20. Plaintiff's counsel then moved for attorneys' fees. The district court awarded $113,225.88 in attorneys’ fees and $10,869.34 in costs pursuant to 29 U.S.C. § 216(b) [the Fair Labor Standards Act] and N.Y. Lab. L. §§198(1-a), (1-d). Defendant appeals, claiming that's just too much money for a case like this. 

 

Employers are probably not aware of this, but when one of their employees successfully sues for wage-and-hour violations, they will recover attorneys' fees. The lawyer who took the case may have done so on contingency, as the plaintiff may be short on cash since management stole their tips or denied their overtime. So the lawyers will only take good cases that have a chance for recovery of their attorneys' fees. Sometimes those fees greatly exceed the value of the case.

The Court of Appeals (Kearse, Parker and Perez) affirms the attorneys' fees award. "The district court acted within its discretion in determining that the fee award should not be reduced to the extent requested by G.H. Food and Singh because of the limited damages Caltenco ultimately obtained. Our precedent is clear that '[f]ee awards in wage and hour cases should encourage members of the bar to provide legal services to those whose wage claims might otherwise be too small to justify the retention of able, legal counsel.' In order to 'advanc[e] Congress’s goals under the FLSA to ensure a ‘fair day’s pay for a fair day’s work,’ the law cannot be read to impose a proportional limitation based on the perceived complexities of the litigation.'” An attorneys' fees award that is disproportionate to the damages is not per se excessive.

The Court of Appeals notes that "there are procedural tools available to defendants like G.H. Food and Singh to reduce their financial exposure to potential attorneys’ fees in run-of-the-mill FLSA cases." The Court does not identify those procedural tools, but I would be that one such tool is a Rule 68 offer, where the employer makes an "offer of judgment" for a certain amount of money, and if the plaintiff rejects that offer and wins less money at trial, the attorneys' fees are cutoff from the date of the offer of settlement. I guess there was not offer of settlement in this case. I would guess the next such case against this employer will yield such an offer.

Second Circuit clarifies how to win a mixed-motive case under Title VII

For now, this is the most significant employment discrimination case of the year from the Second Circuit, which clarifies what it takes for Title VII plaintiffs to win their cases. The Court holds that the district court improperly granted summary judgment for the employer where (1) the record revealed some performance deficiencies but (2) a manager who played an important role in plaintiff's termination said that women were not suited to hold her position.

The case is Bart v. Golub Corp., issued on March 26. Plaintiff was a supermarket manager who worked in the deli and was admonished for failure to maintain food logs, for which she admitted responsibility in August 2016. In summer 2017, plaintiff was transferred to a new location, where her manager, Pappas, called one of her female coworkers a "ding dong," said another woman "shouldn't have a job," and called yet another female employee an "idiot." Apart from these rude comments, Pappas said "he didn't think women should be managers" and that being a manager was too "stressful" for women and that women were "too sensitive to be managers." That comments was made in June 2018. That year, plaintiff was frequently disciplined for poor performance. Plaintiff admitted some of the performance criticisms were true. She was ultimately fired.

What do we do with a case like this? On one hand, Pappas made some blatantly sexist comments about plaintiff's ability to perform her duties as manager. But we also have job performance issues. The district court granted defendant's motion for summary judgment on the basis of plaintiff's admissions "that the reason provided for her termination are factually accurate and valid under Defendant's policies and procedures." As the district court held these admissions were "dispositive of the pretext issue," her case was dismissed.

The Court of Appeals reverses and the case returns to the docket for trial. The Court reviews its precedents since the 1990's on pretext and direct evidence, noting that the cases are not always clear about when cases like this should go to trial. Normally, without direct evidence, plaintiffs use the McDonnell Douglas burden-shifting model, requiring them to prove the defendant's articulated reason for the adverse action is a pretext, or bad faith excuse. But the Second Circuit has also said, notably in Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134 (2d Cir. 2010), that a plaintiff is not required to prove the employer's articulated reason is false, and that the the plaintiff can prevail by showing that an unlawful factor (like sex, race, etc.) was a motivating factor, even "without proving that the employer's proffered explanation was not some part of the employer's motivation." 

Another puzzle followed the 1991 amendments to Title VII, which incorporated a motivating-factor causation standard, abandoning the "but-for" test that the Supreme Court had adopted a few years earlier. Even after 1991, "it became unclear whether mixed-motive cases should be analyzed under McDonnell Douglas. "The chasm between mixed-motives and single-motive cases persisted.," and the Second Circuit responded to the 1991 amendments by "applying different standards in mixed-motive and single-motive cases," though that distinction seemed to fall away over time, especially following the Supreme Court's ruling in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), which said direct evidence is not required to win a mixed-motive case.

What it all means is as follows: "a Title VII plaintiff need not prove that the employer's stated reason was false. A plaintiff instead need only show that the employer's stated reason -- even if true or factually accurate -- was not the 'real reason,' in the sense that it was not the entire reason due to a coexisting impermissible consideration." (Emphasis in original). In the end, the plaintiff must show that "the defendant's employment decision was more likely than not based in whole or in part on discrimination." A strong prima facie case may be enough to win the case, the Second Circuit (Nardini, Kearse and Lynch) adds. In sum, the Court says:

To satisfy the third-stage burden under McDonnell Douglas and survive summary judgment in a Title VII disparate treatment case, a plaintiff may, but need not, show that the employer’s stated reason was false, and merely a pretext for discrimination; a plaintiff may also satisfy this burden by producing other evidence indicating that the employer’s adverse action was motivated at least in part by the plaintiff’s membership in a protected class.

The plaintiff in this case benefits from this clarification. While the employer may have told the truth about plaintiff's performance deficiencies, there is also direct evidence of discriminatory intent -- Pappas's sexist comments about plaintiff's ability to perform as a manager. As the actor most involved her termination, Pappas's gender-based bias cannot be ignored. The Court reminds us in a footnote that, even if the ultimate decisionmaker did not harbor any discriminatory intent, the plaintiff can win if a sexist manager played a meaningful role in her termination. Summary judgment is therefore reversed for the following reason:

Bart testified that Pappas made several remarks to her, including close in time to the firing insinuating that he believed that a man would perform better in Bart’s role than a woman would. Pappas’s comments are therefore not “stray remarks” insufficiently tied to the adverse action as to lack probative value. Instead, “[t]he comments alleged were (1) made repeatedly, (2) drew a direct link between gender stereotypes and the conclusion that [Bart is ill-suited for her position as a manager], and (3) were made by [a] supervisor[] who played a substantial role in the decision to terminate [Bart]. As such, they are sufficient to support a finding of discriminatory motive.”