2d Circuit rules in favor of JD Salinger in "Catcher in the Rye" copyright dispute

We all read the Catcher in the Rye, by JD Salinger. The book is a literary landmark that continues to impress scholars and critics today. This is why some writers try to capitalize on that book. Not an easy task.

The case is Salinger v. Colting, decided on April 30. Judge Calabresi has fun with this case, describing at length both the book and its influence over the years, as well as a few words about the reclusive Salinger (who died recently):

Catcher is a coming-of-age story about a disaffected sixteen-year-old boy, Holden Caulfield, who after being expelled from prep school wanders around New York City for several days before returning home. The story is told from Holden’s perspective and in his “own strange, wonderful, language.” Nash Burger, Books of the Times, N.Y. Times, July 16, 1951. Holden’s adventures highlight the contrast between his cynical portrait of a world full of “phonies” and “crooks” and his love of family, particularly his younger sister Phoebe and his deceased younger brother Allie, along with his developing romantic interest in a childhood friend, Jane Gallagher. While his affection for these individuals pushes him throughout the novel toward human contact, his disillusionment with humanity inclines him toward removing himself from society and living out his days as a recluse. He ultimately abandons his decision to live as recluse when Phoebe insists on accompanying him on his self-imposed exile.

Catcher was an instant success. It was on the New York Times best-seller list for over seven months and sold more than one million copies in its first ten years. Polly Morrice, Descended from Salinger, N.Y. Times, March 23, 2008. To date it has sold over 35 million copies, influenced dozens of literary works, and been the subject of “literally reams of criticism and comment.” Literary critic Louis Menand has identified Catcher “rewrites” as a “literary genre all its own.” The Holden character in particular has become a cultural icon of “adolescent alienation and rebellion,” a “moral genius” “who refuses to be socialized.”

Inseparable from the Catcher mystique is the lifestyle of its author, Salinger. Shortly after publishing Catcher, Salinger did what Holden did not do: he removed himself from society. Salinger has not published since 1965 and has never authorized any new narrative involving Holden or any work derivative of Catcher.

The defendant here is a writer, Colting, who wrote a book entitled, "60 Years Later: Coming Through the Rye," which "tells the story of a 76-year-old Holden Caulfield, referred to as 'Mr. C,' in a world that includes Mr. C’s 90-year-old author, a 'fictionalized Salinger.' The novel’s premise is that Salinger has been haunted by his creation and now wishes to bring him back to life in order to kill him. Unsurprisingly, this task is easier said than done. As the story progresses, Mr. C becomes increasingly self-aware and able to act in ways contrary to the will of Salinger. After a series of misadventures, Mr. C travels to Cornish, New Hampshire, where he meets Salinger in his home. Salinger finds he is unable to kill Mr. C and instead decides to set him free. The novel concludes with Mr. C reuniting with his younger sister, Phoebe, and an estranged son, Daniel."

I guess you could call this book "fan fiction." Salinger sought and received an injunction in district court against "60 Years Later." You can get an injunction at the start of the case if you are going to suffer "irreparable harm" without the injunction and you have a likelihood of success on the merits of the case. The Court of Appeals affirms, sort of, but not before analyzing recent Supreme Court authority in patent infringement cases, applying that case in copyright cases. That case is eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).

Under the new standard, you cannot presume that a copyright violation will create irreparable harm necessary for a preliminary injunction. That issue will be for the district court on remand. The Second Circuit observes, "This is not to say that most copyright plaintiffs who have shown a likelihood of success on the merits would not be irreparably harmed absent preliminary injunctive relief. As an empirical matter, that may well be the case, and the historical tendency to issue preliminary injunctions readily in copyright cases may reflect just that." In other words, Salinger may well be able to prove irreparable harm, after all.

In the meantime, the Second Circuit rules that "there is no reason to disturb the District Court’s conclusion as to the factor it did consider — namely, that Salinger is likely to succeed on the merits of his copyright infringement claim." For you non-lawyers, this means that Salinger has a great case on the merits of his copyright case in that "60 Years Later" is substantially similar to "The Catcher in the Rye." The newer book is essentially a sequel to the Salinger classic. Indeed, the Second Circuit says that any argument to the contrary is "manifestly meritless."

Anti-war protester defeats qualified immunity in false arrest case

The Court of Appeals has ruled that an anti-war protester may proceed with a false arrest lawsuit against a police officer who claimed the plaintiff went limp when he ordered him to disperse. While courts often dismiss false arrest cases because the police had an objective reason to believe probable cause justified the arrest, this case is allowed to proceed.

The case is Bradley v. Jusino, decided by summary order on April 14. Bradley brings a false arrest claim against police officer Jusino, who arrested Bradley for Obstructing Governmental Administration arising from a street protest. The Court of Appeals (Feinberg, Calabresi and Raggi) lets the case go forward.

Confirming that every case has the potential to be interesting, the trial judge described the case this way:

This action initially appeared to be a relatively routine confrontation between a demonstrator and a police officer towards the end of an unexpectedly massive anti-war demonstration. However, the circumstances were unfamiliar to both Bradley, a 63-year old self-styled farmer from outside Ithaca, and Jusino, a very recent graduate of the Police Academy. Under these circumstances, difficulties in managing and presenting a qualified immunity defense in a false arrest case became manifest. The regrettable procedural tangle and ultimate resolution is described below.

Bradley claimed that Jusino was interfering with legitimate police practices, but Bradley testified that "while he was trapped in a dense crowd of protesters, a line of officers moving into the crowd bumped into him, he fell, he quickly rolled onto his stomach, face-down on the sidewalk, to protect himself as the line passed overhead, he felt someone grab his arm, lift him partway off the sidewalk, the drop him, and he was placed under arrest." As the Court of Appeals sees it, "these facts do not provide a basis, actual or arguable, to think that Bradley intended to disrupt police officers or cause public inconvenience."

Jusino claimed that he thought Bradley intentionally ignored police orders to disperse and that he went limp when Jusino grabbed him. On its face, Jusino is describing an Obstructing Governmental Administration charge, but the jury can reject Jusino's version of events and credit Bradley's version, particularly if the jury thinks the crowd was too dense to permit ready dispersal and Bradley did not have time to get up at Jusino's command. So that even though police officers can assert qualified immunity if they believe in good faith that probable cause justified the arrest, this immunity cannot attach if the jury is able to credit the plaintiff's testimony and draw the reasonable inference that the arrest lacked probable cause.

City of Bridgeport discrimination case gets some new plaintiffs

The City of Bridgeport Police Department has been under federal court supervision for over two decades, the byproduct of a racial discrimination suit filed in 1978. That case is still breathing, and now it has some additional plaintiffs thanks to a Second Circuit ruling that grants white police officers the right to intervene in the case. The Court of Appeals suggests, though, that this case cannot hang around forever.

The case is Bridgeport Guardians v. Delmonte, decided on April 27. After the district court issued a remedy order in 1982 upon finding that the police department discriminated against minority officers, this case has seen twists and turns over the years, to the point where the department has since been led by two African-American Chiefs of Police. As Judge Parker notes in writing the opinion, "Throughout this period, the only constant has been that the police department of Connecticut's third-largest city has been run under the supervision of a federal court and its appointed special master."

In 2008, the court entered an order that says the City must take all appropriate steps to ensure that its hiring practices do not have a disparate impact on minority candidates "by [among other things] utilizing race-neutral measures, including the appropriate weighting of the oral and written portions of the examination to reduce the disparate impact while preserving the validity and usefulness of the examination."

This order prompted the white and Hispanic officers to try to intervene in the case. Reversing the district court on this issue, the Second Circuit (Parker, Cabranes and Amon [D.J.]) allows the officers to intervene. These officers object to the 2008 order, claiming it would allow the City to adopt race-conscious promotional and hiring practices" that would adversely affect their interests. Since these white and Hispanic officers have an interest that clashes with that of the current plaintiffs, under Rule 24(a)(2), they want to intervene in the lawsuit. Largely following its precedent from 2001, Brennan v. New York City Board of Education, 260 F.3d 123, the Second Circuit reasons:

appellants are white and Hispanic male employees who claim that their employer has reached a settlement agreement in an employment discrimination suit that violates their rights. They, like the intervenors in Brennan, have an interest in their employers’ employment practices and, therefore, a settlement agreement that they assert infringes their statutory and constitutional rights. Under Brennan, therefore, the current officers have asserted an interest in their promotion that is sufficient for intervention, and have asserted that as a practical matter the interim order could impede their rights. As their rights are not represented by any other party – especially now that the Union is no longer involved – they are entitled to intervene.

The subtext here is disparate impact, which the Supreme Court recognizes as a violation of Title VII of the Civil Rights Act of 1964. Municipalities cannot adopt race-neutral employment practices that have a disparate impact on racial minorities without a showing of business necessity. In all likelihood, the intervenors in this case see the City's efforts to avoid disparate impact as a threat to their own promotional opportunities. Recall that the Supreme Court in another Connecticut case, Ricci v. DeStefano, 129 S.Ct. 2658 (2009), made it more difficult for employers to discard civil service tests "to achieve a more desirable racial distribution of promotion eligible candidates." Disparate impact figured heavily in the Ricci decision in that the City in that case wanted to avoid testing that would disproportionately hurt minority candidates. While the intervenors in the Bridgeport Guardians case decided on April 27 want the Court to throw out the district court's order because it violates the new rule in Ricci, the Second Circuit is sending the case back to the district court to take up that issue in the first instance.

The days are numbered for this case. At the end of the opinion, Judge Parker suggests that "the world has turned over many times since" this case was filed in 1978, and that "[e]xcept in highly unusual circumstances, it is the business of cities, not federal courts or special masters, to run police departments. At some point in time this litigation has to be ended. On remand, we are confident that the capable district judge will look hard for that point."

Missing alibi witnesses not enough to win ineffective assistance claim in federal court

It's time for a habeas corpus quiz. A criminal defendant claims on appeal that, in violation of the Sixth Amendment, he was denied effective assistance of trial counsel who did not take the time to check out or interview seven of his nine alibi witnesses who in some form or another claimed that the defendant was in Florida when the victim was murdered in New York City. Does he have a real habeas claim?

The case is Rosario v. Ercole, decided on April 12. The prosecutor claimed that the victim was shot and killed by Rosario on the street in the presence of two eyewitnesses. His first lawyer got money from the court to hire an investigator to check out Rosario's alibi witnesses who lived in Florida. This attorney testified at a subsequent hearing on Rosario's post-trial motion that she did not have the investigator travel to Florida to search them out and she admitted there was no strategic reason behind that choice. When that lawyer was replaced by new counsel, the new attorney mistakenly thought that the court had denied that request for alibi money, though he did try to contact the alibi witnesses by phone (and could not reach them). Despite this negligence, a state trial judge rejected Rosario's ineffective assistance claim. The Court of Appeals (Wesley and Cabranes)affirms, over a lengthy dissent from Judge Straub.

On the face of it, Rosario has a great ineffective assistance claim and should win the habeas corpus petition in federal court. But two factors work against that result. First, a state judge heard extensive evidence, including testimony from the seven alibi witnesses, and decided in the final analysis that Rosario's representation was good enough. Second, under the 1996 habeas corpus law, state courts get the benefit of the doubt once these motions reach federal court. The inmate has to show that the state court unreasonably applied settled Supreme Court precedent in resolving the constitutional issues raised by the habeas corpus petition. So that even if the state court got it wrong, it has to get it really wrong for the inmate to get that second bite at the apple in federal court.

The state judge did say that, in terms of credibility, the two alibi witnesses who testified for Rosario at his criminal trial were the best ones for Rosado, and that the ones whom his lawyers did not round up had various problems with their testimony which would have been largely cumulative in any event. The Second Circuit finds that the state judge did not unreasonably apply the Supreme Court's legal standard governing ineffective assistance claims.

In a 40+ page dissent, Judge Straub lets the majority have it. "This appeal presents an extraordinarily troubling set of circumstances," he writes, before summarizing the record and attacking Rosario's criminal lawyers for neglecting to try to prove his innocence through no less than seven additional alibi witnesses. This is especially galling, Judge Straub suggests, because the affirmative evidence of Rosado's guilt was weak, and the alibi witnesses in Florida could have made the difference at trial. He writes, "there is a reasonable probability that the jury's verdict would have been different" had these alibi witnesses turned up at trial. He adds, "there exists too much alibi evidence that was not presented to the jury, and too little evidence of guilt, to now have any confidence in the jury's verdict."

Supreme Court limits enhancements to statutory attorneys' fees

I was still running around the schoolyard when this happened, but the Supreme Court in 1975 dropped a bomb on the civil rights community when it ruled in the Alyeska Pipeline case that plaintiffs who win their cases are not entitled to recover attorneys' fees from the losing defendants. This prompted Congress in 1976 to pass the Civil Rights Attorneys' Fees Award Act which allows prevailing parties to recover fees from the defendants in civil rights and other public interest litigation (42 U.S.C. sec. 1988). The courts have been grappling with this legislation ever since. Once again, the Supreme Court weighs in.

The case is Perdue v. Kenny A., decided on April 21. The issue this time around is whether the winning lawyers in a civil rights case can recover a fee enhancement for exceptional work in handling the case. In order to understand this issue, you need to know the basic rules governing the attorneys' fees entitlement. This is a little simplistic, but the plaintiff wins a civil rights or environmental case, courts generally multiply the lawyer's hourly rate by the number of hours he worked on the case. We call that the "lodestar" method. It's an easy way to calculate the attorneys' fees, and after the court arrives at a dollar amount, the number is usually reduced if the lawyer spent too much time on the case or did not prevail on all issues.

Is the lawyer entitled to a special enhancement for exceptional work, above and beyond the lodestar? The trial judge in the Perdue case thought so. These lawyers beat the hell out of the State of Georgia in challenging the way it ran its public foster homes. In this class action lawsuit representing 3,000 children who (according to Justice Breyer's concurrence/dissent) endured hellish living conditions, it took the lawyers roughly 30,000 hours to perform the work, and the attorneys' fees application sought more than $14 million. The trial court awarded about $6 million in fees, and then enhanced that award by 75 percent, raising the attorneys' fees by another $4.5 million. I have never seen a fee award this high, but the trial court said the lawyers' performance was the finest he had ever seen in his 27 years on the bench.

The Supreme Court takes away that enhancement, ruling that the trial court did not clearly identify any compelling reasons for it. Writing for a 5-4 majority, Justice Alito endorses the lodestar approach to calculating attorneys' fees, warts and all, and says that multiplying the hours spent on the case by the lawyers' hourly rates, will be enough except in the rare and exceptional cases. In order to recover an enhanced fee above and beyond the lodestar, counsel must proffer "specific evidence that the lodestar fee would not have been adequate to attract competent counsel." Moreover, while "there is a strong presumption that the lodestar figure is reasonable, ... that presumption may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee."

This is going to be a very tough standard for lawyers to satisfy. The Court goes out of its way to emphasize how prevailing lawyers are going to rarely recover an enhanced fee, treating us with language that warns against attorney windfalls:

Section 1988 serves an important public purpose by making it possible for persons without means to bring suit to vindicate their rights. But unjustified enhancements that serve only to enrich attorneys are not consistent with the statute’s aim. In many cases, attorney’s fees awarded under §1988 are not paid by the individuals responsible for the constitutional or statutory violations on which the judgment is based. Instead, the fees are paid in effect by state and local taxpayers, and because state and local governments have limited budgets, money that is used to pay attorney’s fees is money that cannot be used for pro-grams that provide vital public services.

This language will certainly under criticism. Doesn't the insurance company pay out attorneys' fees, and not the taxpayers? In any event, the Court does suggest you can get an enhancement if "the method used in determining the hourly rate employed in the lodestar calculation does not adequately measure the attorney's true market value, as demonstrated in part through the litigation." An enhancement may also be appropriate if "the attorney's performance includes an extraordinary outlay of expenses and the litigation is exceptionally protracted." Another reason to enhance would be cases where "an attorney's performance involves exceptional delay in the payment of fees."

2d Circuit smacks down State Court of Appeals in habeas ruling

Legal malpractice claims are the last refuge of the inmate who wants to get out of jail. Most ineffective assistance claims fail, but some inmates hit the jackpot. Racky Ramchair certainly did.

The case is Ramchair v. Conway, decided on April 2. Ramchair went to jail on a robbery conviction. He then filed a habeas corpus petition challenging the performance of his attorney who handled the appeal in the state courts. This habeas petition was not going to be easy. You have to jump through hoops these days to win a habeas petition. First, you have to show that the state court ruling on appeal was an unreasonable application of settled constitutional law. Second, Ramchair in particular was arguing that the well-respected New York Court of Appeals had unreasonably applied settled constitutional law.

So how did Ramchair win the habeas petition? Ramchair's attorney was present at the arguably suggestive lineup right after Ramchair's arrest. At the criminal trial, the district attorney wanted the jury to think the lineup was fine as proven by the failure of Ramchair's attorney to contemporaneously object to the lineup, at which Ramchair was identified as the perpretator of the crime. As Ramchair's lawyer at trial was the same lawyer who was present at the lineup, this evidence created a real problem. A lawyer cannot testify at the very trial he is litigating, so he asked for a mistrial so that Ramchair could hire another trial lawyer and the lineup attorney could testify at the next trial. The judge denied the mistrial.

The ineffective assistance claim is that Ramchair's lawyer on appeal did not challenge this mistrial denial in the state appeals courts. This was a potentially meritorious claim, so the failure to raise it on appeal was quite problematic. Why was it potentially meritorious? The Second Circuit observes that "the clear implication was that [Ramchair's lawyer] conceded that the lineup was fair."

The legal issue actually raised by Ramchair's appellate counsel was weak. The stronger claim -- challenging the criminal court judge's refusal to grant a mistrial -- was much stronger, but appellate counsel did not raise that issue on appeal. As the Second Circuit (Winter, Calabresi and Sack) says, "appellate counsel's failure to raise the mistrial claim was not a sound strategic decision, but a mistake based on counsel's misunderstanding that the mistrial claim, which trial counsel explicitly made, had not been preserved. We agree ... that this mistake rose to the level of constitutional ineffectiveness, and that the New York Court of Appeals' decision to the contrary was an unreasonable application of clearly established Supreme Court precedent."

If you follow habeas claims in the Second Circuit, you'll find that most of the "bad" state appellate rulings that unreasonably applied settled constitutional law are from the Appellate Division, the mid-level appeals court in New York. In this case, it was the State Court of Appeals that blew it. I have not seen that in quite a while. The Second Circuit has a good relationship with the State Court of Appeals in that the latter sometimes resolves complicated state law issues for the former. But in this case, the Second Circuit makes it clear that, in rejecting Ramchair's ineffective assistance of counsel claim, the State Court of Appeals mistakenly ruled that Ramchair's appellate lawyer filed a comprehensive brief in challenging the conviction. And since appellate counsel testified in connection with the habeas petition that she did not raise that issue out of mistake, and not strategy, the State Court of Appeals got it wrong in finding otherwise.

True, the State and Federal Courts of Appeals have a nice relationship. But the Second Circuit's smackdown in the Ramchair case is strictly business. Nothing personal.

Sloth-like permit process for guns may violate Due Process Clause

Service at the gun counter was rotten. As rotten as asking a teenage worker at Stop And Shop to check in the back room to look for any more sale items. That's when teenage Johnnie goes on his lunch break, and you are standing in Aisle 7 waiting for assistance.

That's what it felt like for M. Peter Kuck, who went to the Connecticut Department of Public Safety to renew his gun permit. Kuck refused to provide documents to verify his citizenship, an insulting requirement in his view, so he appealed to Board of Firearms Permit Examiners. The problem for Kuck was that there was no sense of urgency at the Board, which takes forever to process the appeals. So long, in fact, that the Board may be violating the Due Process Clause.

The case is Kuck v. Danaher, decided on March 23. Kuck's permit appeal was not scheduled to be heard for 18 months. Under the Due Process Clause, "a delay amounts to a due process violation only where it renders the prescribed procedures meaningless in relation to the private interests at stake," the Court of Appeals tells us. While the courts will tolerate a relatively brief administrative delay that takes into account the bureaucratic workload, there are limits to the court's patience.

The courts resolve these disputes by weighing the citizen's property or liberty interest against the risk of erroneous deprivation of that interest as well as government's interest in maintaining these procedures. We call this the Matthews balancing test, named after a Supreme Court ruling from 1976. At this stage of the case (the district court dismissed Kuck's complaint without any pre-trial discovery), the Second Circuit (Parker, Straub and Livingston) says that the state may have violated Kuck's due process rights. While Kuck's right to gun ownership is not as pressing as the need for a vehicle to drive to work or any interference with his livelihood, Connecticut law does provide for the right to own a gun, "an interest that is highly valued by many of the state's citizens," Judge Parker writes. Kuck also convinces the Court of Appeals that DPS often denies these permits after non-trivial delays for bogus reasons, a factor that also tips the Matthews test in his favor. While the state has a compelling interest in making sure that guns don't wind up in the wrong hands, the state cannot dismiss this case simply by arguing "that public safety is important and appeals have gotten backed up." As the Court of Appeals concludes, "the State gives no account of how or why public safety requires unsuccessful applicants to wait a year-and-a-half for an appeal hearing."