Court upholds religious discrimination judgment in Town-Church dispute

The Court of Appeals has upheld a judgment in favor of a church that sued a Westchester County community for religious discrimination after the Town of Greenburgh interfered with the plaintiffs' efforts to build a new church. This ruling has several broad holdings that expand the rights of religious plaintiffs to challenge governmental decisions that substantially burden land-use decisions.

The case is Fortress Bible Church v. Feiner, decided on September 24. This case reached the Second Circuit after a 26-day bench trial. In light of the standard of review on appeal, which defers to the trial court's factual findings, the Second Circuit's summary of the church's efforts to build a new facility on its property can be summed up like this: the Town screwed over the church in imposing burdensome conditions for SEQRA (or environmental impact) approval. One twist here is that the Town Supervisor, Paul Feiner, was concerned about the church's tax-exempt status and wanted the church to donate a fire truck in lieu of taxes. This is among the reasons why Judge Robinson said the Town acted in bad faith and violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Free Exercise and the Equal Protection Clause.

Here's how the Court of Appeals affirms the district court's ruling. First, it holds for the first time that the Town can violate RLUIPA by abusing the SEQRA process. RLUIPA deals with zoning laws that infringe on religious rights. While SEQRA is not really a zoning law, the Town used SEQRA review as a vehicle for determining the zoning issues related to the church's land use proposal. "The Town's actions during the review process and its denial of the Church's proposal constituted an application of its zoning laws sufficient to implicate RLUIPA." This is a far-reaching ruling.

Second, the Town imposed a substantial burden on plaintiffs' religious rights in violation of RLUIPA. The Town acted in bad faith in imposing unreasonable barriers that prevented the church from going forward with a necessary expansion. The Second Circuit credits the district court's analysis in finding that the Town acted arbitrarily and disingenuously and manipulated the SEQRA process to derail the church's project "after it refused to accede to its demand for a payment in lieu of taxes."

Third, the church has a free exercise claim under the First Amendment. After sidestepping whether cases like this require strict scrutiny or rational basis review, the Court says that the Town denied the church's application without any rational basis and that the Town's witnesses at trial were not credible.

Fourth, the church has a viable "class of one" claim under the Equal Protection Clause. While the church did not identify a single one-on-one comparator, it proved through multiple comparators that the conditions that the Town imposed in the project were not applied to other projects. Here is another broad rule applied by the Court: "Where, as here, the issues compared are discrete and not cumulative or affected by the character of the project as a whole, multiple comparators are sufficient so long as the issues being compared are so similar that differential treatment cannot be explained by anything other than discrimination." The Church wins this claim because it "provided overwhelming evidence that its application was singled out by the Town for disparate treatment."

Absolute immunity for prosecutors in Monserrate domestic violence case

As a matter of law, some people cannot be sued. No matter what they do, it seems. That's the rule in this case involving domestic violence committed by a former New York State Senator.

The case is Giraldo v. Kessler, decided on September 14. Giaraldo was Hiram Monserrate's girlfriend. The police interrogated her against her will when they had reason to believe that Monserrate hit her in the face with a drinking glass. Monserrate was in the State Senate when this happened. For those of you who live outside the State of New York, this is the kind of social degenerate who gets elected to state government in New York from time time. Anyway, Giraldo did not want to answer police questions about the assault, and she denied that Monserrate had done anything wrong and that the whole thing was an accident when he brought her "glass of water that broke, causing shards to fly and cut her forehead." No matter. The police held her against her will for five hours and "ordered" her to sign a statement implicating Monserrate in the assault, to no avail. Then the prosecutors got involved. They also held Giraldo against her will for two hours. Giraldo sues the prosecutors under the Fourth Amendment. (She also sues the police, but that claim is not on appeal).

Plaintiffs' lawyers are often asked by potential clients if they can sue the prosecutor who pursued criminal charges against them. Sometimes, these charges are dismissed or dropped or the jury acquits the defendant. Understandably, the defendant wants to remedy this possible injustice. The courts will not allow it, for obvious reasons. If prosecutors were on the hook each time someone is acquitted, they would be sued out of existence.

Can you sue the prosecutors in this case? After all, Giraldo was not charged with anything. She was hassled by the prosecutors. That's a distinction, true, but she cannot sue the prosecutors in any event. They have absolute immunity. The district court allowed this claim to go forward, but the Court of Appeals (Winter, Cabranes and Carney) reverses and dismisses the claim against these defendants. "Prosecutorial immunity from Section 1983 liability is broadly defined, covering virtually all acts, regardless of motivation, associated with the prosecutor's function as an advocate." Tough to get around this standard. "Investigative acts reasonably related to decisions whether or not to begin or to carry on a particular criminal prosecution, or to defend a prosecution, are shielded by absolute immunity when done by prosecutors." Giraldo cannot sue the prosecutors because, at the time they interrogated her, Monserrate was arrested and the prosecutors had to make quick legal decisions about how to proceed. The interview, unpleasant as it was, was in preparation of a court proceeding in which the prosecutor acts as an advocate." Giraldo was an important witness in this proceeding, and the prosecutors had the right to personally assess her credibility when she tried to exonerate Monserrate.

District court gets around Garcetti in Mount Vernon retaliation case

Few First Amendment retaliation plaintiffs have been able to withstand a Garcetti defense in the Second Circuit ever since the Supreme Court said that public employees do not engage in protected speech if their whistleblowing or other statements are made pursuant to their official job duties. But some district courts are allowing these cases to proceed. This case is one of them.

The case is Stokes v. City of Mount Vernon, 2012 U.S. Dist. LEXIS 118386, a decision by Judge Briccetti on August 14. Stokes was the city's Inspector General. He prepared a report that slammed a city program called Payments in Lieu of Taxes, or PILOT, administered by the city's Industrial Development Agency and run by Maureen Walker. Stokes accused Walker of all sorts of misconduct and ethics violations. The City Council then passed a law abolishing the Inspector General's office. After a state court held that this legislative action violated state procedure, the City Counsel next voted to sharply reduce Stokes' salary, causing him to resign. Stokes sued the City, the mayor and members of the City Council, claiming they constructively discharged him in retaliation for his critical report on PILOT.

The Supreme Court held in Garcetti that public workers are not speaking as citizens when they speak pursuant to their official job duties. As Stokes prepared his report in his capacity as Inspector General, his claim against the City and the mayor is dismissed under Rule 12. They employed Stokes, and as brutal as it sounds, there is no First Amendment protection for his termination by the City and mayor as well as members of the Board of Estimate who also have some authority over Stokes (as they can fix his salary). That holding is not remarkable. What is remarkable is Judge Briccetti's finding that Stokes may pursue his First Amendment claim against members of the City Council because they do not have employment authority over Stokes. Members of the council belong the legislative branch; it is the executive branch, the mayor to be exact, which can appoint and remove the Inspector General. The councilmembers are not Stokes' employer. This is an issue of first impression in the Second Circuit. Adopting the reasoning from federal cases around the country, Judge Briccetti finds the "employer/employee distinction makes sense." The judge reasons:

The rationale for the Garcetti rule is that restricting speech owing its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. The individual defendants [on the City Council] do not point out any hiring, firing, or employment authority they have over plaintiff. ... Therefore, the rationale underlying Garcetti is inapplicable and the Court cannot conclude that plaintiff's speech is not protected simply because the speech at issue may have occurred in the context of plaintiff's official job duties.

Other issues in the case: the district court says that the complaint states a claim for constructive discharge even though Stokes quit seven months after the City Council reduced his salary. Waiting too long to resign may kill the constructive discharge claim. But since Stokes tried to resolve his dispute with the city during that time, he resigned within a reasonable period of time. The district court also allows Stokes to proceed on his procedural due process because he had a property interest in his unelected position and there was no adequate post-deprivation remedy available since an Article 78 proceeding is not the proper vehicle to challenge legislative action. The substantive due process claim may also proceed because Stokes adequately alleges that defendants' conduct was arbitrary and outrageous.

The PLRA strikes again

In 1995, Congress made it harder for prisoners to file lawsuits. Under the Prison Litigation Reform Act, a prisoner that seeks in forma pauperis status cannot do so if he filed three frivolous lawsuits in the past. This case asks when is someone a "prisoner" under the PLRA.

The case is Gibson v. City of York, decided on August 14. Gibson sought in forma pauperis status because he could not afford to file his lawsuit, which alleged that officials at Kirby Forensic Psychiatric Facility violated his civil rights. If Gibson was a "prisoner" while at Kirby, he cannot file that lawsuit without paying the filing fee. Was he a prisoner? When we think of prisoners, we think of guys in the slammer, in lockup, in the big house, behind bars, in the joint, etc. What about a psychiatric facility where the plaintiff was sent after he allegedly committed a crime, to see if he could get treatment that would allow him to stand trial?

The Court of Appeals (Walker, Leval and Pooler) notes that "Under New York law, 'when a defendant is in the custody of the commissioner [of mental health] pursuant to a temporary order of observation . . . , the criminal action pending against the defendant in the court that issued such order is suspended until the superintendent of the institution in which the defendant is confined determines that he is no longer an incapacitated person.'” When people like Gibson are in places like Kirby, they are still in custody, even if they are not in the hoosegow. The Second Circuit concludes:

Because New York law explicitly specifies that the criminal proceedings against a person, such as Gibson, who is being held in a mental health institution pursuant to a temporary order of observation, are merely suspended during his confinement and observation—and only terminate if the person is still being held at the time the temporary order expires or the criminal charges at issue are otherwise dropped—we have little trouble concluding that Gibson was still a “person . . . detained in [a] facility who is accused of . . . [a] violation[] of criminal law” at the time he filed his complaint, and thus was a “prisoner” under the PLRA.

Another First Amendment retaliation case goes down the chute

Public employees continue to lose their First Amendment retaliation cases in the Second Circuit. This time, it's a payroll clerk typist who was fired after she brought financial improprieties to her supervisors' attention.

The case is Ross v. Lichtenfeld, decided on September 10. Ross worked for the Katonah-Lewisboro School District in Westchester County. She processed payroll and verified payroll amounts. If plaintiff found any mistakes or improper payroll payments, she told the Superintendent about it. On one occasion, when Ross told him about some improper payments, the Superintendent said, "Oh, my God. This is worse than the Enron scandal. If taxpayers find out heads will spin." On other occasions, she told the Superintendent that people were improperly receiving overtime payments and that various disbursements were made without School Board approval. She also told the School Board about this stuff.

Ross sounds like a hero, right? Well, she was fired after an arbitrator found that she had a falsified employment application for the position. Still, she did expose some financial improprieties. But her First Amendment retaliation claim fails. The Second Circuit says that Ross did not speak as a citizen in speaking out but instead spoke pursuant to her official job duties. That dooms the case under Garcetti v. Ceballos, 547 U.S. 410 (2006), and its progeny, which makes it harder to win these cases even if the plaintiff exposes a matter of public concern. Ross was just doing her job, but doing you job is not citizen speech; it's work speech.

The Second Circuit (Walker, Leval and Pooler) suggests one way that Ross might have won the case:  "Because Ross never attempted to communicate her complaints to the public, she cannot avail herself of the argument that her duties in no way included public revelation of misconduct of district officials that is generally available to the employee who takes the issue public." So, one way to avoid summary judgment is for the plaintiff to report these matters to the media or some other outlet. Citing Garcetti, the Court also suggests that other whistleblower statutes "or other similar employment codes" might have protected Ross from termination, but she did not assert them in this case. The Court is probably referring to Civil Service Law section 75-b, which says that "A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a  public  employee  regarding the   employee's   employment   because  the  employee  discloses  to  a governmental body information ... which  the employee   reasonably  believes  to  be  true  and  reasonably  believes constitutes an  improper  governmental  action" that violates a law, rule or regulation."

Dog hoarder loses her case

There is such a thing as dog hoarding. The SPCA often shows up after neighbors complain about the smell of dog feces and other foul odors, and the hoarder is charged with violating the New York State Agricultural and Markets Law. Sometimes the hoarders file a civil rights suit over the confiscation of their animals. These are very hard cases to win.

The case is Fabrikant v. French, decided on August 16. After Fabrikant's criminal charges were dismissed, she sued the SPCA for constitutional violations, including false arrest and the seizure and outplacement of her dogs. The district court dismissed the case, and the Court of Appeals (Newman, Straub and Lynch) affirms.

These cases are hard to read if you love dogs. The Second Circuit lays out the suffering these many dogs experienced, and I will spare you the details. The case is notable for a few holdings, though. First, the Court of Appeals says for the first time that people working for the Society for the Prevention of Cruelty of Animals may be sued under Section 1983 as state actors. This is because animal control is traditionally a governmental function. Municipalities have delegated that function to local SPCA's. That's what happened in Ulster County, where this case originated and incidentally where I live and have donated to and visited the SPCA with our beloved Standard Poodle who lives like a king and basically runs the household.

The other holding of note is the qualified immunity ruling. The Court of Appeals rejected plaintiff's constitutional claim on qualified immunity grounds even though defendants waived/forfeited that argument in failing to raise it in the district court. Qualified immunity gets government defendants off the hook if the court finds they acted reasonably under the circumstances or the case law was not clear at the time they alleged violated the plaintiff's rights. In fact, defendants did not assert qualified immunity until oral argument in the Second Circuit. No matter. The Court of Appeals can resolve this issue because it is a question of law without any need for additional factfinding. Having gotten around the waiver, the Court says that the SPCA defendants are immune from suit because in 2002, when the events gave rise to this case, there was no clearly-established "right not to have her dogs sterilized by the SPCA, at least without some form of process, prior to being sent to foster homes while she was awaiting trial in state court on animal abuse charges." Even today, SPCA workers would not reasonably understand "that spaying or neutering  Fabrikant's dogs following their seizure from her home violates a clearly established due process right." Rather, state law allows SPCA's and humane societies broad powers to promote the welfare of at-risk animals.

Finally, the Court of Appeals rejects plaintiff's search and seizure claim because the SPCA had probable cause to seize the animals. There is no evidence that anyone conspired against Fabrikant, and the SPCA people testified in detail about the conditions they observed when they came upon Fabrikant's property. It's difficult to get around a probable cause finding in a Section 1983 suit, particularly in cases like this where eyewitnesses give firsthand accounts in support of the charges. Law enforcement is allowed to rely on those firsthand accounts in going after the alleged wrongdoer.

Mixed result in student racial harassment case

In this racial harassment case filed by the parents of a young boy who was ridiculed at school because of his race, the Court of Appeals allows some claims to proceed to trial but grants qualified immunity to some school officials who were not on notice that certain physical harassment violated the Constitution.

The case is DiStiso v. Cook, decided on August 21. This is the first time in years that the Second Circuit has provided extensive guidance on school harassment cases. What complicates matters is that the parents brought this case under the Equal Protection Clause of the Constitution (which prohibits racial discrimination in general) and not Title VI of the Civil Rights Act of 1964, which addresses discrimination in public schools. Unlike statutory claims like Title VI, qualified immunity is available to public defendants in Section 1983 claims brought under the Constitution, which means the defendants can wiggle out of the case if the law governing the case was not clearly established at the time of the alleged violation.

The boy was harassed both verbally and physically. He was unable to testify who exactly committed the harassment. Still, since the parents complained about it, the jury could find that the teacher and principal knew about the racial name-calling in kindergarten (other kids called him "nigger" and "blackie" and said his skin was dirty after he washed up). The jury may also find that defendants' response to these complaints was "clearly unreasonable" (the legal standard in these cases) because they did nothing about it, i.e., they did not do anything to stop or deter the harassment or undertake a full investigation. Legally, this part of the case is not that remarkable, except for the holding that the parents' testimony about what their son told them about the harassment is admissible at trial. The Second Circuit (Raggi, Pooler and McLaughlin) says:

Although Nicholas himself had no present recollection of the frequency of these racially derogatory remarks or even of who said them, when they were said, or the circumstances in which they were said, his parents testified that their son complained of racial name-calling, specifically, use of the word “nigger,” approximately eight, and possibly as many as 15, times over the course of his kindergarten year. Mr. and Mrs. DiStiso may not be competent witnesses to the underlying truth of their child’s complaints, i.e., to the fact that other children called Nicholas racial epithets. But if a jury were to credit Nicholas’s testimony that he experienced such name-calling and reported it to his parents, his parents’ testimony as to the number of times their son made such reports, which we must assume would also be credited, might constitute circumstantial evidence as to the frequency of the harassment. This is enough to raise triable issues of fact as to (1) whether Nicholas experienced racial name-calling during his kindergarten year at Wakelee and, if so, (2) whether that name-calling was sufficiently severe or pervasive as to have effectively deprived the child of educational opportunities provided by the school.

The Court says, however, that defendants are entitled to qualified immunity on claims that they were deliberately indifferent to acts of physical harassment. The law is not clearly established in this area, so there was no way for defendants to know that otherwise race-neutral physical harassment was racially-motivated, even if the verbal harassment to which they were aware was explicitly racial. Over Judge Pooler's dissent, Judge Raggi writes, "Where, as in this case, the subsequent misbehavior is of a type routinely engaged in by school children of the age at issue without regard to motivation, there must be some objective evidence linking initial racially hostile acts to such subsequent misbehavior to support a finding that a school official has actual knowledge that the latter behavior, like the former, is racially motivated." There was "no objective evidence linking the physical conduct to the alleged name-calling. Nor is there evidence that the misbehavior went beyond the commonplace for children of Nicholas's age. In these circumstances, no clearly established law would have alerted defendants that they could be deemed to have actually known that the physical misbehavior was racially motivated so as to expose their responses to the physical misbehavior to possible constitutional scrutiny."

The result in this case would be different if the same kids who verbally harassed the boy were the ones who physically harassed him. But the child is unable to identify the harassers, and there is no other evidence connecting the bad kids with both forms of harassment. "In such circumstances, a jury might well find that if a teacher actually knows that particular students have harassed a classmate for invidious reasons on several occasions, the teacher actually knows that the same prohibited motive animates the same students’ further misbehavior toward the same classmate. ... Absent some such evidence to connect the racial name-calling to the later commonplace physical misbehavior, there is no basis in established law for inferring that a teacher who receives complaints as to the racial motivation for former conduct has actual knowledge that the latter conduct is similarly motivated."

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