Inmate cannot prove ineffective assistance of counsel on deliberate indifference claim

The Court of Appeals says that an inmate cannot prove that his lawyer was ineffective in connection with his trial on charges of depraved indifference murder. The habeas corpus petition is denied.

The case is Parker v. Ercole, decided on January 23. Parker was charged with both intentional murder and depraved indifference murder. There is a difference between the two, as any law student will tell you. The prosecutor said that Parker shot Johnson in the midst of a street fight over a stolen car. Parker denied the charge. The real question at trial was whether Parker pulled the trigger. The jury found Parker guilty of depraved indifference murder, not intentional murder. Parker's argument is obvious: the only basis to find him guilty would have been intentional murder, not depraved indifference murder. The state appellate courts rejected his argument.

Parker now pursues a habeas action claiming that his lawyer was ineffective in failing to preserve his argument that the evidence was insufficient to support the depraved indifference claim. The Second Circuit (Kearse, Cabranes and McLaughlin) rejects the argument. The district court did say that Parker did not preserve this appellate argument at trial, but it addressed the argument anyway in assessing the ineffective assistance claim that he raised on the habeas petition. But the district court still rejected the petition. The Court of Appeals says that even if there was ineffective assistance, Parker cannot show prejudice (a necessary requirement on habeas petitions like this) because even if his lawyer did do what he was supposed to, that argument would have failed because the evidence was sufficient to support the verdict, and Parker did exhibit depraved indifference to human life in that he was extremely reckless in firing the gun (as opposed to a point blank shooting). That motion would have been futile. Quoting from the Appellate Division, here's why:

The distance between [Parker], who was a novice user of the subject rifle, and the people across the street, was hardly close. All of the witnesses testified that the “shooter” was standing inside the hallway of a residence on the opposite side of the street. The victim, his girlfriend, their male companion and two of [Parker’s] own friends were located across the street from this residence near the victim’s parked car. Another of [Parker’s] friends was also in the immediate vicinity. Moreover, it was dark outside, the street was dimly lit and the weather was described as “a blizzard.” . . . .

While the jury heard testimony from one witness, who acknowledged that he had changed his statement to police a couple of times and who was himself threatened with being charged with murder, that [Parker] allegedly told him that he put the scope [of the rifle] on the victim’s chest that morning, they also heard evidence from the victim’s girlfriend that the victim was pacing back and forth on the street at the time the shot was fired. The jury further heard testimony that, just minutes before the shooting, [Parker] refused to participate in his companions’ decision to steal the victim’s car because he and the victim had been childhood friends. ... [T]here is ample record support for the jury’s decision that [Parker’s] conduct that morning was reckless and depraved rather than intentional.

Supreme Court denies certiorari in Jackler v. Byrne

In July 2011, the Second Circuit held that a police officer could sue his superior officers who retaliated against him for refusing to falsify a police report that implicated a sergeant in police brutality. In distinguishing Garcetti v. Ceballos, 547 U.S. 410 (2006), Jackler v. Byrne is among the few decisions in the Second Circuit that holds that a public employee's workplace speech is protected. On February 27, 2012, the Supreme Court denied certiorari in Jackler.

Jackler received attention because of its dramatic facts and the Second Circuit's holding that this police officer engaged in free speech in refusing to comply with the command that he falsify the police report. Ever since the Supreme Court issued Garcetti, more and more public employee First Amendment retaliation cases have been dismissed on the basis that the speech was pursuant to the employee's official job duties. While Jacker witnessed an act of police misconduct and initially filled out a truthful report pursuant to his official job duties, the Second Circuit held that his refusal to later falsify that report was protected speech because it addressed a matter of public concern (police brutality) and that refusal had a citizen analogue.

What made Jackler potentially certworthy was that the D.C. Court of Appeals in 2011 issued Bowie v. Maddox, which involved a public employee who claimed retaliation after he wanted to submit an affidavit in response to a subordinate's EEOC charge (he refused to sign the affidavit prepared for him by his office, the Office of Inspector General). The D.C. Circuit rejected Bowie's claim at 642 F.3d 1122 (D.C. Cir. 2011), but on Bowie's motion for reargument, the D.C. Circuit addressed Jackler for the first time, at 653 F.3d 45 (D.C. Cir. 2011), and stated that Jackler was wrongly decided and that the Second Circuit had misapplied Garcetti. Hence the cert petitions in both Jackler and Bowie. The law firm of Bergstein & Ullrich, LLP, with assistance from Dupee & Monroe, P.C., filed the op-cert brief in Jackler with the Supreme Court last November.

Some Supreme Court watchers thought the Court might grant certiorari in Jackler/Bowie, since Bowie criticizes Jackler and everyone knows that the Court takes cases to iron inter-Circuit conflicts. It was not to be. Everyone also knows that the Court is selective in hearing cases. The Supreme Court denied certiorari in both cases, and the Jackler decision stands.

Speech about an abusive boss in a public workplace is not protected under the First Amendment

The Court of Appeals has summarily rejected a free speech retaliation claim brought by a public employee who complained about an abusive boss.

The case is Dellatte v. Great Neck Union Free School District, decided on January 20. The Court of Appeals (Cabranes, Pooler and Wesley) says that the plaintiff's speech did not touch upon a matter of public concern.The summary order tells us nothing about plaintiff's speech, but the district court's ruling does. The magistrate judge who dismissed the Complaint says:

Here, Plaintiff’s speech concerned (1) his treatment by his supervisor, Rufus, and (2) the contents of his personnel folder. Regarding his supervisor, Plaintiff alleges that Rufus is “corrupt[]” and an alcoholic, and that he “steals supplies, alters time cards, steals overtime and
otherwise engages in theft of services,” and “becomes very abusive when intoxicated.” Plaintiff further asserts that “Defendant Rufus repeatedly berates plaintiff, talks down to him and falsely criticizes his job performance.” With the above-stated principles in mind, the Court finds that the speech described by Plaintiff in the Complaint represents Plaintiff’s personal grievances regarding his treatment by his supervisor. Such expression may have pertained to Plaintiff’s attempts to redress his personal grievances, but there are no allegations whatsoever to show that Plaintiff engaged in that speech to advance a broader public purpose.

So that's the speech. The hurdle is Garcetti v. Ceballos (2006), a Supreme Court case that says that speech pursuant to your official job duties is not free speech, but work speech for which you can be disciplined. Plaintiff does not even get that far, because the speech does not even address a matter of public concern, though he did speak up about an abusive boss who was on the public payroll.

Plaintiff argued in the district court that he spoke as a private citizen and that his "speech concerned general problems that he perceived and was not limited to instances affecting only him[,]” and that such “speech, about what he perceived to be the improper conduct of his supervisor[,] was not clearly one of his job duties.” The district court said that "courts have frequently stated that '[a] public employee may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run.' Furthermore, '[a] generalized public interest in the fair or proper  treatment of public employees is not enough.' ... Accordingly, where, as here, Plaintiff’s speech is 'calculated to redress personal grievances[,]' Plaintiff cannot state a First Amendment retaliation claim simply by adding conclusory statements regarding his intentions in making that speech."

No due process violations in taxi cab license disputes

The City cannot be sued under the due process clause for denying you a future taxicab license without a hearing. That's the holding in a Second Circuit case that once again reminds us that due process claims cannot survive if the government has discretion to reject certain licenses.

The case is Mordukhaev v. Daus, a summary order decided on January 17.You need a property interest in order to have a due process claim. The property interest is a creation of state law. If your entitlement is concrete and the government has little choice but to grant you the license, then its revocation must satisfy certain procedural safeguards. If the license may be revoked for discretionary reasons under state law, then there is not federal due process claim and your only remedy is probably a state court Article 78 petition.

The cab driver licenses may be denied for a variety of reasons. "The TLC retains significant discretion to deny a license based on subjective criteria. Foremost among these is the requirement that applicants for a license demonstrate 'good moral character.' The TLC also has discretion to determine whether an applicant’s 'physical condition' or 'knowledge of the city' is 'unsatisfactory,' and other provisions provide that the TLC 'may' renew a license or suspend or revoke a license." The plaintiffs used to have these licenses, but they were revoked. Although the City denied plaintiffs new licenses for lack of candor or honesty, poor driving records (among other reasons), these fell under the TLC's discretion. No federal due process claim can follow.

One plaintiff argues that his license was revoked in violation of the due process clause. This claim stands on a different footing than the others, who claimed they were denied a future license. Once you have the license, it cannot be denied on the basis of vague charges of misconduct or through an unfair process. The Court of Appeals (Hall, Chin and Hellerstein [D.J.] sides with the City.

"Here, the pre-deprivation hearing satisfied these basic requirements. It afforded Mordukhaev notice of the charges against him, an explanation of the evidence supporting those charges, and an opportunity for him to present his version of the events. And in any event, Mordukhaev was afforded sufficient post-deprivation process. After the Administrative Law Judge ('ALJ') revoked Mordukhaev’s license, Mordukhaev filed a counseled appeal of that decision to the TLC’s Chief ALJ, raising the very same issues he now advances in this appeal. That appeal was denied, but significantly, Mordukhaev did not pursue his challenge further via an Article 78 proceeding." Under the due process clause, this plaintiff got all the process that the Constitution requires.

Parolees have fewer rights than the rest of us

The Court of Appeals holds that parole officers did not violate the Fourth Amendment in searching a parolee's storage closet in his house without a warrant.

The case is U.S. v. Barner, decided on January 13. What you have to know about this case is that the Supreme Court has granted parole officers additional leeway to search inmates who have been released on parole. Of course, the Fourth Amendment says nothing about parole or the "special needs" exception to the constitutional requirement that the government cannot search without a warrant. But case law puts the gloss on vague constitutional commands, and “[a] State’s operation of a probation system ... presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements. As a result, probationers may be subject to a degree of impingement upon privacy that would not be constitutional if applied to the public at large.”

Under this rule, when the parole officers got a tip that Barner had fired a weapon at someone, they came to his place with a parole violation arrest warrant. As they were looking around the house for bad stuff, they came upon a storage area adjacent to his apartment. The storage room was across the hallway, about 10 feet away from the entrance to the apartment. Inside the storage area, they found weapons and ammo and also drug dealing paraphernalia. The district court granted Barner's suppression motion, but the Court of Appeals (Sack, Raggi and Eaton [D.J.]) upholds the search.

The legal standard is that searches like this are legal if they are "rationally and reasonably related to the performance of the parole officer's duty." Here's the reasoning:

Parole Officer Spearman had received information that Barner (1) possessed a gun, and (2) had fired it at the complainant. These allegations, if true, would have constituted criminal parole violations separate from and far more serious than the curfew breach. Once Spearman had this information, it was clearly reasonable for her to investigate the accusations further. Thus, the ensuing search satisfied the reasonable relationship requirement of Huntley because it was performed in direct response to information that Spearman obtained and that she had a duty to investigate further, both to determine if a crime had been committed, and to prevent the commission of further crimes.

Inmate cannot challenge flashlight strip search

As I write this, the Supreme Court is deciding when prison officials can strip search incoming prisoners. But some areas of strip search law are so settled that the Court of Appeals does not have to wait for the Supreme Court to decide that case.

The case is Perez v. New York State Department of Corrections, a summary order decided on January 13. Perez and other plaintiffs were locked up in the Big House. Under Bell v. Wolfish (1979), the Supreme Court said that inmates may be strip searched after having contact visits with outsiders. This is to make sure that family and friends do not slip in contraband while meeting with the inmate. These searches are legal if they are reasonable. The demeaning nature of these searches is outweighed by the need for prison safety.

"Reasonabless" in the prison context means that anything goes so long as prison officials have some kind of rationale for the intrusion. Anyone who handles cases like this will tell you that. In this case, the plaintiffs cannot win. The Court of Appeals (Hall, Chin and Hellerstein [D.J.]) says, "The searches at issue here were not rendered unreasonable under the Fourth Amendment or qualitatively different from the searches at issue in Bell by the de minimis additional intrusions that required the appellants to expose their anal cavities twice during a single search and use of a flashlight to aid in the visual inspection." The plaintiffs also argue that prison officers used the flashlight solely to humiliate them. This will not fly. Under Supreme Court precedent, the officers win the case if their actions are objectively reasonable, even if they were subjectively motivated by bad reasons.

What's the correct pleading standard for employment discrimination cases?

There is some tension between two Supreme Court decisions governing how to plead a federal case. In Swierkiewicz v. Sorema N.A. (2002), the Court said that employment discrimination cases do not have to plead the elements of a prima facie case. In 2009, the Court said in Ashcroft v. Iqbal (2009) that the complaint must allege a claim that is "plausible on its face." This possible conflict surfaces in an age discrimination case rejected by the Court of Appeals.

The case is Hedges v. Town of Madison, a summary order decided on January 13. Must have been a slow day at the Court of Appeals, which handily dismisses Hedges' case because he does not allege enough facts to allege age discrimination. He only says in the complaint that management got rid of this older worker before his pension vested. In 1993, the Supreme Court said allegations like this are not by themselves enough to state a claim. What makes this case interesting is the Second Circuit's (Pooler, Livingston and Leval) observation that "The pleading standard for employment discrimination complaints is somewhat of an open question in our circuit."

The open question is occasioned by Swierkiewicz and Iqbal. Swierkiewicz made it easier for employment discrimination plaintiffs to survive a Rule 12 motion to dismiss. But, as the Court of Appeals notes, Swierkiewicz relies on Conley v. Gibson (1957) which said you can safely plead your case under "notice pleading" standards, a lenient test that the Supreme Court tossed aside in Iqbal. All very interesting for those who handle employment discrimination cases. What's the real standard for these cases? The Second Circuit does not resolve this conflict, finding instead that Hedges cannot plead a case under any standard.