They thought the clown was a bomber, part II

It was something out of a Coen Brothers movie: a clown who claims he was brutalized by the police who thought he was a bomber because he accidentally left a mysterious-looking balloon machine at a Starbucks. I wrote about the case at the district court here. Parts of the case were dismissed on summary judgment. The Court of Appeals affirms.

The case is Alhovsky v. Paul, a summary order decided on January 19. Civil rights lawyers know this, but one of the problems with false arrest cases is that the police can get the case dismissed by showing they had probable cause to make the arrest, even if the plaintiff was innocent all along. That's what happened to this guy.

As the Second Circuit (Pooler, Wesley and Chin) summarizes the case,

On June 25, 2006, Alexander Alhovsky rode his bike to Starbucks after working as a clown and magician in Central Park. When he sat down, Alhovsky took off his heavy fanny pack, which contained the balloon pump he used to create balloon animals for children. Unfortunately, Alhovsky forgot his fanny pack on the chair when he left Starbucks. Nearly four hours later, when the employees were closing Starbucks, a manager opened the fanny pack and showed it to a coworker, who promptly threw it onto the sidewalk and called 911 to report a bomb. Two days later, the police, investigating whether Alhovsky had placed a false bomb, saw Alhovsky riding his bike with a similar device strapped to his waist – his back-up balloon pump. Three officers arrested Alhovsky, took him to the precinct, interrogated him, searched his apartment,and released him – a process that took about 4.5 hours from arrest to release.

That's quite a story. But he was charged with placing a false bomb in the first degree. Alhovsky did no such thing, but the police did not know that when they arrested him. It looked like a bomb, and it was unattended for several days. While Alhovsky argues that the balloon pump was inoperable, that does not get him to a jury. A reasonable police officer would think that the balloon pump was likely to cause public alarm or inconvenience and may have been a bomb. That's probable cause, and it also entitles the police to qualified immunity, which gives them the benefit of the doubt in close cases. The Court of Appeals says that the law "applies to the placement of a device or object that looks like, but is not actually, a bomb, regardless of whether the device is 'operable' in some other context."

Supreme Court recognizes third-party retaliation claim

How far does Title VII's anti-retaliation provision take us? The Supreme Court says it can take us pretty far, at least if the fiance of the woman who files an EEOC complaint is fired in retaliation for that complaint.

The case is Thompson v. North American Stainless, decided on January 24. The Supreme Court has been issuing some pro-plaintiff retaliation decisions over the last decade or so, giving life to Title VII's prohibition against retaliation where employees protest workplace discrimination in good faith. This case asks whether third-party retaliation violates Title VII. At least when someone is fired in retaliation for a close family member's protected activity (such as an EEOC charge or an in-house discrimination complaint), the poor fellow who was fired but did not actually engage in the protected activity can bring a lawsuit.

This decision is in two parts. First, echoing the legal standard that the Court adopted in Burlington Northern v. White, 548 U.S. 53 (2006), Justice Scalia says that "we think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired." But the Court does not tell us how far this reasoning will take us. "We must ... decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize."

The second part of the decision asks whether the plaintiff here falls within the "zone of interests" protected by Title VII. True, the fiance is aggrieved by his termination, but can he sue for damages? The Court takes the opportunity to run away from dicta in a case from 1972 that suggested that "the Title VII aggrievement requirement conferred a right to sue on all who satisfied Article III standing." Conceivably, any number of people might be "aggrieved" by an unlawful termination, including shareholders. But shareholders are not within the zone of interests protected by Title VII, which "enabling suit by any plaintiff with an interest arguably sought to be protected by the statutes." That dicta was "ill-considered," the Court says. Thompson still falls within the zone of interests because he "is not an accidental victim of the retaliation -- collateral damage, so to speak, of the employer's unlawful act. To the contrary, injuring him was the employer's intended means of harming [his fiance]. Hurting him was the unlawful act by which the employer punished her."

Reverse Title IX sexual harassment case is reinstated

The Court of Appeals has reinstated a sexual harassment lawsuit against a pharmacy college, finding that the school was deliberately indifferent to the hostile educational environment created by a female teacher who propositioned a male student.

The case is Papelino v. Albany College of Pharmacy, issued on January 24. In a reverse sexual harassment scenario, Professor Nowak persisted in making sexual advances on Papelino, who made it clear he was not interested. When Papelino couldn't take it anymore, he told Nowak that he would report her actions to Dean White, who admittedly did nothing about the problem because he "didn't want to let it out." Shaw then accused Papelino and two of his roommates of cheating in violation of the College Honor Code. Expelling two of the three students, a college committee found that all three students had in fact cheated, basing its conclusion on some questionable statistical evidence that a state court later rejected as unreliable and arbitrary. After Papelino brought this lawsuit, the college agreed to certify his degree to Florida licensing authorities on condition that the college be allowed to tell the Florida authorities that "it may be determined in a pending action commenced by Mr. Papelino that the charges were true, which may result in the revocation of Mr. Papelino's degree."

All of this adds up to a hostile educational environment, quid pro quo sexual harassment and retaliation in violation of Title IX, which prohibits gender discrimination in the schools. The Court of Appeals (Cabranes, Chin and Winter) says the quid pro quo claim goes to a jury because the college knew about the sexual advances once Papelino complained to Dean White about, among other things, "favorable marks because of actions" and "something about dinners or ... going out." Although Title IX plaintiffs have to satisfy the demanding "deliberate indifference" test, Papelino can do so because Dean White did not follow-up on his complaint. Quid pro quo liability may also attach because the jury can find that Professor Nowak falsely charged plaintiff with cheating shortly after he rejected her advances. This sequence of events dovetails with Papelino's retaliation claim, which also goes to the jury because of the vindictive cheating allegations and the College's refusal to certify his degree unless it could tell Florida authorities that this lawsuit might result in an adverse finding on the (already repudiated) cheating allegations.

Papelino also makes out a hostile educational environment claim. Enough sexual acts took place within the statute of limitations to send this case to the jury. Papelino says the Professor actually exposed her breasts at him during the cheating hearing, "a final sexual taunting of Papelino and the others," the Second Circuit says. The jury can also find that much of Papelino's improper conduct, overtly sexual or not, was on account of sex.

A few words on inferences and circumstantial evidence on this summary judgment motion. The Court says that the jury may find that plaintiff can link his sexual harassment complaint with the cheating charges which almost ruined his education. It seems that the Professor says that she was not aware that Papelino complained about her and that therefore the cheating charges could not have been retaliatory since she did not know about plaintiff's complaint. But the jury could find otherwise, because Nowak became cold and hostile toward plaintiff after he complained about her to Dean White, suggesting that the Dean told the Professor about the complaint after all. And, not only did the cheating committee discuss the allegations of sexual harassment during the hearing process, but even if they did not know, a jury could find that "they were acting on Nowak's explicit encouragement, or that they acted without information that White should have imparted to them."

No defamation in scientific-misconduct case

I get the feeling that federal judges really love defamation cases. Defamation law in New York is complex and almost completely case-law driven. The cases are also interesting because they involve personality conflicts, hurt feelings, etc. It's like returning to law school for some complex moot-court competition. But the plaintiffs in these cases rarely win. There are too many ways to excuse the allegedly defamatory statement.

The case is Chandok v. Klessig, decided on January 13.

Plaintiff and defendants are both Ph.D. researchers. They were looking into "immune response mechanisms in plants." At her New York research facility, Dr. Chandok completed some experiments that supported her groundbreaking hypothesis and resulted in scholarly articles that attracted attention in the research community. But then Dr. Chandok transferred to Maryland, and her former colleagues, including defendant Dr. Klessig, could not replicate Dr. Chandok's findings in her absence. Despite their repeated requests, Dr. Chandok refused to return to the New York facility to show them how she got her results. Dr. Klessig began to wonder if Dr. Chandok had cooked the data to support her conclusions, and he shared that belief in her "possible scientific misconduct" with important people in the research community, including the prestigious journals that ran the research articles (and ended up retracting the articles) and the institutions that funded the research.

Dr. Chandok's defamation case fails under New York law. Accusing a scholarly researcher of intellectual dishonesty may tarnish your reputation, but there are privileges that the defendants can invoke to avoid losing the case. One privilege lets you speak out "in the discharge of some public or private duty, legal or moral." Another privilege "extends to a communication made by one person to another upon a subject in which both have an interest." These privileges overlap for Dr. Klessig, who gets the case dismissed because he had a legal duty to notify the research institutes that financed Dr. Chandok's alleged fraud, and he also had a moral obligation to share his concerns with the research institute that sponsored the research and subsequently investigated the allegations. As the Court of Appeals (Kearse, Calabresi and Jacobs) notes, "The reputations and credibility of both institutions and all of these individual scientists were imperiled by the fact that they were explicitly associated with scientific articles that may have been predicated on fabricated research results or fraudulent reporting." Everyone who shared in Dr. Klessig's suspicions also had a common interest in hearing it, satisfying another privilege.

These privileges may be overcome if the plaintiff can show the defendant spoke with malice. Good luck with that in New York. Dr. Chandok cannot prove malice. Dr. Chandok did not try to help her former colleagues replicate her research, suggesting she had something to hide. An investigation also raised questions about her record-keeping practices with respect to her research results. In other words, the Court of Appeals finds that the negative allegations were made in good-faith, not maliciously.

2d Circuit issues rare habeas corpus victory

In a rare decision that grants a prisoner's habeas corpus motion on the ground that the state court conviction violated the U.S. Constitution, the Second Circuit rules that the defendant never should have been convicted of felony assault, even though a police officer was shot in the course of a botched gun transaction.

The case is Langston v. Smith, decided on January 7. Not that Langston is a good guy, or anything. What happened is that the trial court, including the prosecutor, got confused about what it takes to convict someone for felony assault, which criminalizes actions taken "in the course of and in furtherance of the commission ... of a felony" that cause "serious physical injury" to a non-participant.

The statute seems easy enough, but I guess it isn't. Langston helped two confidential informants (they were law enforcement officers) purchase an illegal gun. At the apartment building where the sale was supposed to happen, rather then sell the weapons, the sellers shot one of the officers, Marquez, causing serious injuries. Langston testified that he did not know the shooters. He was convicted of felony assault.

If you are not well-versed in criminal law, you are probably wondering why the habeas petition was granted. The Constitution requires that criminal defendants be convicted beyond a reasonable doubt. In this criminal proceeding, the state courts (including the appellate division, which sustained the conviction) got it all confused. This case was tried as a botched robbery, not as a botched gun sale, but the jury was charged that they could convict Langston if the officers' injuries were in furtherance of criminal possession of a weapon. Langston could not be convicted for this, however, because there was no evidence that he had anything to do with the crime of criminal possession of any weapons. The Second Circuit (Lynch, Feinberg and Newman) writes,

had the jury convicted Langston after being asked to decide whether the assault on Marquez had been committed in furtherance of an attempted robbery, affirmance of that verdict would present no difficulty. However, Langston was not charged with attempted robbery, and the trial judge instructed the jury that to convict Langston of felony assault it had to find, beyond a reasonable doubt, that he or another participant caused ... serious physical injury to Arther Marquez while in the course of and in furtherance of criminal possession of a weapon.

What the prosecution had to do to convict Langston of felony assault was to show that the officers were assaulted "to further the possession of the very guns used in the attack -- the theory on which the State principally defends the conviction in this Court." But, as the prosecutor seemingly admitted, "shooting Marquez was in no way part of a plan to ensure that the guns used in the assault remained in the shooters' possession." Langston had nothing to do with the ambush against the officers. The gunmen appeared without warning and opened fire. While the gunmen certainly did the shooting in furtherance of criminal possession of the weapons, Langston's lack of any involvement in that scheme gets him off the hook for felony assault.

Tough luck, pal

Pity the inmate who blows a deadline in challenging his conviction. You have a one-year deadline to file a habeas corpus petition. There are exceptions to that rule, but the courts are not that forgiving.

The case is Jenkins v. Greene, decided on December 23. Jenkins was sentenced to two consecutive 25-year sentences for slashing people with a razor blade. His habeas petition says that he would have taken a plea bargain with a lighter sentence had his trial attorney told him about the possible sentence following trial. In a 2-1 decision, the Court of Appeals agrees that Jenkins got a particularly harsh sentence, but it holds that Jenkins waited too long to file the habeas petition alleging ineffective assistance.

Writing for the majority, Judge Lynch notes the general rule that "A litigant seeking equitable tolling must show both that he 'diligently' pursued his rights and that 'some extraordinary circumstance ... prevented timely filing.'" Jenkins says he faced such an extraordinary circumstance because, after repeated efforts, he could not get an affidavit from his trial lawyer, a necessary requirement in alleging ineffective assistance. But Judge Lynch says that New York cases hold that the inmate has two options in these cases: either timely produce the attorney's affidavit or explain why such an affidavit was not available. The majority concludes,

A requirement that a defendant alleging ineffective assistance of counsel must either submit an affidavit from his attorney or an explanation of why he cannot present such an affidavit from his attorney is not is not an extraordinary circumstance that "prevented [Jenkins from] timely filing” his claim for relief.

Judge Parker dissents, viewing New York cases as vague on what the inmate has to do to preserve his ineffective assistance claim. It is by no means clear, Judge Parker says, that the inmate who cannot get an affidavit from the trial lawyer can preserve his rights by showing why such an affidavit was unavailable. He writes:

The majority cites to cases where New York courts require either an attorney affidavit or an explanation for its absence, and suggest that in lieu of the affidavit, Jenkins should have supplied such an explanation in a sworn statement accompanying his affidavit. The fact that New York courts may not “inflexibly” require such an affidavit sidesteps the fact that some courts apparently do and some do not. My reading of the case law is that such an affidavit probably should be submitted. The majority believes that such an affidavit need not be submitted. If court of appeals judges can honestly disagree over this point of law it seems to me wrong for a court of equity to close the court to a pro se litigant who happened to find himself on the wrong side of this debate. This is especially so where the cost of his choice is an additional forty years of incarceration for a man who, as indicated below, may well have received constitutionally ineffective assistance of counsel. Where equity is the point of departure, this constellation of circumstances is, I believe, extraordinary.

Second Circuit limits the right to medical privacy

We normally associate the constitutional right to privacy with abortion and other child-bearing and (and related) concepts. But that right also covers the right to avoid disclosure of certain personal matters, including medical information. This case asks whether a New York City schoolteacher could sue the Board of Education for publicizing her fibromyalgia. The answer is No.

The case is Matson v. Board of Education, decided on January 11. School officials disciplined Matson, a music teacher, for taking sick leave so she could conduct a symphony orchestra at Trinity Church. Her doctor said the stress was work-related. While she needed time off from work, she could still function as a conductor at the church. In disciplining Matson, school officials publicized a report that made reference to her disability, characterized as "chronic fatigue syndrome, known as fibromyalgia." Matson does not sue over the discipline but, instead, the public report that mentions her disability.

The majority opinion (Miner and Cabranes) says Matson does not have a case. While certain serious and stigmatizing conditions (like HIV or transsexualism) fall within the right to medical privacy, this is a narrow right, and Matson's condition does not qualify. Judge Miner writes:

A general medical determination or acknowledgment that a disease is serious does not give rise ipso facto to a constitutionally-protected privacy right. In Doe v. City of New York, 15 F3d 264 (2d Cir. 1994), we explained that HIV is “sadly a fatal, incurable disease.” Our reasoning in Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999), with regard to transsexualism differed, as we approached the condition as a psychiatric disorder. There, we explained that transsexualism is a “gender identity disorder, the sufferers of which believe that they are ‘cruelly imprisoned within a body incompatible with their real gender identity,’” and we further recognized that transsexualism is a “profound psychiatric disorder.” Fibromyalgia, however serious, is neither alleged to be fatal, as we recognized the HIV condition to be in Doe, nor is it a "profound psychiatric disorder” as we noted in Powell. While fibromyalgia is characterized by fatigue and muscular soreness and tenderness, we have noted that it can be debilitating only in certain instances.

In other words, "although fibromyalgia is a serious medical condition, it does not carry with it the sort of opprobrium that confers upon those who suffer from it a constitutional right of privacy as to that medical condition." Moreover, "we discern no evidence in the record revealing societal discrimination and intolerance against those suffering from fibromyalgia."

Judge Straub dissents, writing that "[i]n finding that Matson has failed to state a viable claim of infringement of her privacy rights, the majority today gives the government substantial reign to publicly disseminate a person’s intimate medical information without any justification. While it is of course not the case that every bit of medical information is encompassed within the right to privacy, in my view, the majority has forged an unduly narrow understanding of what is protected."

Judge Straub notes that Chronic Fatigue Syndrome can be as disabling as multiple sclerosis, lupus and other afflictions. He further accuses the majority of unnecessarily requiring Matson to prove on the face of her Complaint that society broadly discriminates against persons with her disability. At this stage in the case (the Complaint was dismissed under Rule 12), Judge Straub believes that Matson should be able to proceed to discovery on this claim: "Given the undisputedly serious nature of these conditions, and the slight inference required to appreciate that a person suffering from them may reasonably desire to keep that information private, I do not believe it can be said at this early stage that, as a matter of law, the conditions are insufficiently intimate to merit privacy protection."