No qualified immunity for now as police misconduct case proceeds to trial

The federal courts have a built-in mechanism that makes cases move more quickly: you cannot appeal every ruling that comes your way. The only appealable rulings arise when the case is over. That way you have one appeal per case, unlike the state system in New York, where every ruling can be appealed even if it does not end the case. The exception to the strict federal rule is appeals from the denial of qualified immunity. But even that exception has limits.

The case is Franco v. Police Officer Gunsalus, issued on August 28. This is a qualified immunity appeal, taken up by a police officer who was denied that relief in the district court, which instead ordered a trial. The idea behind immediate qualified immunity appeals is that the Supreme Court says this immunity protects government officials, including police officers, from suit, so this question must be resolved as early in the case as possible. Qualified immunity exists to give the police the benefit of the doubt in close cases, especially when the case law is not clear on the issues raised in the case. But if the district court states in denying the qualified immunity motion that the jury must resolve factual issues before the trial court can take up the legal question of qualified immunity, then that ruling is not appealable. This is tricky stuff, but Section 1983 lawyers are familiar with this because these fine distinctions are the difference between an immediate appeal, which can delay trial for a year or more, and an immediate trial.

This case began when plaintiff showed up at a New Year's Eve party to find that the police were directing everyone to leave. Plaintiff stuck his head into a friend's vehicle to talk about the situation. The police claim they told plaintiff to disperse but he did not listen, and that he grabbed an officer and they wound up on the ground, prompting the police to punch plaintiff in the face. Plaintiff, in contrast, says the police never told him to disperse and that they assaulted him for no reason. What really happened? That's what juries are for. And if the Covid-19 crisis ever subsides, we may actually have a trial in this case. While the City filed a motion for summary judgment, the trial court said a disputed factual issue -- whether the police had actually ordered plaintiff to disperse -- must be resolved a trial. That means no qualified immunity for the officers, for now anyway. If the jury tells the judge that the police did order plaintiff to leave and that plaintiff ignored that order, then the police may invoke qualified immunity.

The Court of Appeals (Calabresi, Pooler and Carney) find there is no appellate jurisdiction because an exception to the you-can-appeal-now-from-a-qualified-immunity-denial rule does not count when the trial court says a factual dispute precludes any finding of qualified immunity. The Supreme Court said that in Johnson v. Jones, 515 U.S. 304 (1995). The Second Circuit notes that it has strictly followed Johnson's holding over the years, even in cases where it might seem the district court really blew it in holding that factual issues exist for trial on the qualified immunity question. The Second Circuit pauses to raise that issue in resolving this appeal, but it moves on to dismiss the appeal in its entirety under Johnson. This case will proceed to trial.

When are punitive damages appropriate under the New York City Human Rights Law?

The New York City Human Rights Law is quite different from Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the other federal antidiscrimination statutes. The NYC HRL relaxes the plaintiff's burden of proof, for example, and it does not cap damages for pain and suffering. It also provides a different test for punitive damages. 

The case is Emamian v. Rockefeller University, issued on August 19. The plaintiff won her national origin discrimination case under the City law, and the Court of Appeals (Livingston, Park and Underhill [D.J.]) upheld the verdict, rejecting a challenge to the verdict form. 

Under federal law, you cannot get punitive damages unless the discrimination was malicious or willful. The City law does not explicitly mention any particular punitive damages standard, the New York Court of Appeals held in Chauca v. Abraham, 30 N.Y.3d 325 (2017), that the punitive damages test under the City law is less burdensome than under federal law (requiring only recklessness but not malice). The standard under Chauca is as follows: punitives are appropriate upon a showing of "willful or wanton negligence, or recklessness, or where there is a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard." The New York Court of Appeals reached this holding under the liberal principles of statutory interpretation that guide the City law. But since Chauca was only decided a few years ago, we do not know what constitutes a reckless state of mind under the City law. This case may be the most comprehensive discussion thus far on what it takes (or doesn’t take) to get a punitive damages charge under the City law.

The plaintiff says the trial court should have allowed her to seek punitive damages. But the Court of Appeals says this argument was waived because plaintiff did not object when the trial court declined to issue it, and the record shows this would not have been a futile objection since the trial court was still open to the possibility that punitive damages may be awarded when they were discussing the issue in colloquy. 

But the Second Circuit still addresses this issue on the merits. Plaintiff can still win this waived argument if the failure to charge the jury on punitives was “plain error,” but that is a high standard. Bear in mind that intentional discrimination by itself does not automatically entitle the plaintiff to a punitive damages charge, even under the City law. When I argued Chauca, the New York Court of Appeals rejected the argument that punitive damages may be available in any case involving intentional discrimination. In this case, the Second Circuit says that plaintiff had a weak case for punitives because she only claims the university failed to properly respond to her discrimination claim, and her supervisor’s criticisms of her work were not detached from valid scientific concerns. Nor did plaintiff establish that the university’s response to her complaint was insufficient, particularly since the jury rejected plaintiff’s retaliation claim. So, while the plaintiff's case was enough to win on her intentional discrimination claim, defendant's actions were not sufficiently reckless to justify punitive damages.

What was the evidence of discrimination in this case? The Court of Appeals details that in a summary order that accompanies this published ruling:

Emamian introduced ample evidence of being “treated less well” in the lab of Dr. Greengard including being paid a lower salary, being subjected to harsher criticism and ridicule, and being denied office space and resources relative to non-Iranian employees. Moreover, there was sufficient evidence at trial to permit a reasonable jury to conclude that this differential treatment was caused at least in part by a discriminatory motive. The jury could have concluded that Greengard harbored such a motive based on testimony regarding a conversation between Greengard and Emamian during which, according to Emamian, Greengard aggressively questioned her about her headscarf in a hostile manner. Moreover, Greengard testified that he had been informed by his secretary, whom Greengard described as a “highly educated woman who grew up in Tehran, as did Dr. Emamian,” that Emamian’s headscarf indicated her submissiveness to men and that Greengard should not have hired her. In addition, the jury could have found probative the email sent to the entire lab by Dr. Marc Flajolet, another scientist in the lab, which contained language that, according to Emamian’s testimony, constituted a racist slur directed specifically at her.

That looks like a serious discrimination case, but the Second Circuit does not think it deserves a punitive damages charge. Plaintiffs may try to distinguish this case on the basis that this does not deserve punitive damages under the heightened "plain error" rule, but defendants will note that the Second Circuit still examined this issue on the merits. 

Court of Appeals affirms $200,000 in pain and suffering in "significant" employment discrimination case

The trick in representing any party in a discrimination case is predicting how much money the pain and suffering is worth. Unlike back pay, pain and suffering does not lend itself to a mathematical calculation. Trial courts tell the jury to use their judgment in assessing an amount, but the jury is not given a calculation chart. This means that many pain and suffering verdicts are subject to post-trial motion practice. Like this one.

The case is Emamian v. Rockefeller University, issued on August 19 in the form of two separate rulings, one of them precedential, and one of them in a non-precedential summary order. The very fact that the pain and suffering analysis is relegated to the summary order is telling. The Court of Appeals affirms the trial court's reduction of a two million dollar award to $200,000, but the issue is regarded as a relatively easy one for the Court of Appeals, which does not see the point in including this analysis in the precedential ruling, which addresses the propriety of the verdict form and how the trial court handled the confusion that resulted from the jury's unclear answers on that form.

The discrimination that plaintiff suffered at Rockefeller University is summarized in this blog post. The Court of Appeals (Livingston, Park and Underhill [D.J.]) describes plaintiff's pain and suffering as follows, stating that, when she began suffering disparate treatment because of her national origin:

Emamian began experiencing intensifying mental health issues. She commenced mental health treatment in September 2005 and was ultimately diagnosed with generalized anxiety disorder and trichotillomania, or compulsive hair pulling. Emamian testified that pulling her hair was the only way she could get relief from her extreme stress and that she continues to suffer from this condition. She also developed insomnia and was prescribed sleeping pills, to which she became severely addicted and which caused her to gain nearly forty pounds. As a result of her mental health struggles, she became socially isolated and rarely left the house. Emamian’s psychiatric expert testified that prior to her experience at Rockefeller, she had no psychiatric problems of any kind.

This is serious pain and suffering. It certainly demonstrates a lifestyle change. But the Court of Appeals holds that the district court correctly found that "even cases involving far more egregious conduct culminated in awards of far less than $2,000,000 and that comparable cases resulted in awards in the low six-figure range." We assess pain and suffering damages based on similar cases to ensure the verdict is not too far out of line with prior cases. Note that the Court of Appeals does not review the damage award based on the plaintiff's pain and suffering but on the employer's discriminatory conduct. 

The three-part emotional distress guidelines that federal courts in New York employ is as follows (taken from the district court ruling in this case):

"In `garden variety' emotional distress claims, the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury." "Garden variety" emotional distress claims "generally merit $30,000.00 to $125,000.00 awards." 

"`Significant' emotional distress claims differ from the garden-variety claims in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony and evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses." Significant emotional distress damages usually range from $50,000.00 to $200,000.00. 

"Finally, `egregious' emotional distress claims generally involve either `outrageous or shocking' discriminatory conduct or a significant impact on the physical health of the plaintiff. Such awards can exceed $200,000.00.

Under these guidelines, the district court concluded that "Plaintiff's claims for emotional distress fall into the intermediate, 'significant emotional distress' category, given Plaintiff's own testimony regarding her mental state, her trichotillomania and physical manifestations of her emotional suffering, as well as the corroborative medical testimony she presented. The Court finds an award of $200,000.00 to be appropriate." The Court of Appeals agrees.

Discrimination verdict is upheld on appeal despite confusing verdict form

The jury awarded the plaintiff $2 million for pain and suffering and $250,000 in lost wages after finding that she suffered employment discrimination. The employer challenges the verdict, claiming the verdict sheet had errors that required a new trial. The plaintiff takes up an appeal of her own, challenging the trial court’s order reducing the pain and suffering award to $200,000. None of the appeals prevail. The verdict stands, but the pain and suffering stands at $200,000. I will address the damages award in an upcoming blog post.

The case is Emamian v. Rockefeller University, issued on August 19. Plaintiff is an Iranian-born research scientist whose supervisor made her feel uncomfortable in asking numerous questions about her headscarf with a “sarcastic” and “negative” attitude, and he told her that wearing headscarves is a sign of submission to men among Iranian women. Plaintiff also claims she was singled out because of her race and national origin in that she was aggressively questioned and belittled during a lab presentation, received little support from her boss with regard to research, writing, or obtaining another position, and her boss did not think there was anything wrong with an email that made fun of “camel drivers,” a racial slur against Middle Easterners. 

 

The trial lasted six weeks. The plaintiff won. But there was confusion on the verdict form, which is every judge’s nightmare. I would imagine that during judicial training at the start of their judicial service, judges are told to watch out for verdict sheet errors. New York has a particularly unforgiving rule about bad verdict forms that are not discovered until after the jury goes home. Federal law is not much different. A trial judge does not want a retrial because of a simply verdict sheet error that could have been avoided before it was given to the jury. Once the jury answers a bad verdict form that may give rise to inconsistent answers, there is a limited window for the trial court to deal with it before we all have to start over with a new trial. Since this was a lengthy trial, the court cannot afford that.

The jury first said on the verdict form that the university treated plaintiff “less well” under the New York City Human Rights Law because of her race/national origin. But the jury then said on the verdict form, in response to a second question, that plaintiff did not prove by a preponderance of the evidence that defendant intentionally discriminated against her at least in part because of her race/national origin, and/or gender, and/or religion. The second question put these protected characteristics in the same sentence. These answers are in conflict, so the trial court told the jury to return to the deliberations room to iron this out. The jury came back within three minutes to confirm that defendant had discriminated against the plaintiff because of her race/national origin. 

 

While the defendant challenges how the trial court handled the conflicting verdict form, the Court of Appeals (Livingston, Park and Underhill [D.J.]) says the trial court handled things with aplomb. The jury was brought back right away before their judgment could have been tainted by the outside world or the parties to the case, and it was the jury that first told the trial court that there was an inconsistency with the verdict form. The Court of Appeals draws guidance from a recent Supreme Court ruling, Dietz v. Bouldin, 136 S. Ct. 1885 (2016), that held the jury may be recalled to correct an error in the verdict form. There may be limits to the trial court’s authority to haul the jury back into the case, but this case does not test those limits.

 

The more interesting objection is defendant’s claim that the verdict form did not give the jury a chance to even say there was no discrimination at all, as it simply asked if the plaintiff proved that the university treated her less well because of her national origin, gender, etc. There was no yes/no option for this question. But the Court of Appeals says the jury must have known it could have left that question blank if it decided the plaintiff did not prove her case, as it left a separate question blank on the nominal damages issue. Plus, the verdict form asked, “which of the protected status, if any, do you find” motivated the discrimination. The italicized language left open the possibility that the jury could find that no protected status motivated the discrimination. The verdict form could have been clearer, but it was good enough.

Federal judge strikes down Trump regulation permitting transgender discrimination in health care

 After the Supreme Court issued Bostock v. Clayton County in June 2020, ruling for the first time that discrimination on the basis of sexual orientation and transgender status is a form of sex discrimination under Title VII of the Civil Rights Act, the civil rights community has wondered if that rationale extends beyond the employment discrimination context. A federal judge in Brooklyn says that it does, prohibiting the Trump administration from discriminating against transgender status under health programs governed by the Affordable Health Care Act, also known as Obamacare.

The case is Asapansa-Johnson v. Azar, 2020 WL 4749859 (E.D.N.Y. Aug. 17, 2020), issued by Judge Frederic Block. The Obama administration in 2016 issued a regulation that prohibited transgender discrimination in this area. The Trump administration issued new regulations that rejected the Obama administration's belief that transgender discrimination constitutes discrimination because of sex. This was consistent with the Trump administration's litigation position in the employment discrimination cases that reached the Supreme Court in 2019, consolidated in the Bostock ruling, which held in a 6-3 vote that transgender discrimination is a form of sex discrimination under Title VII. As Judge Block notes, the Bostock majority ruled that "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.'

In this case, the plaintiffs are both transgender and argue they were discriminated against in seeking medical treatment. They were mocked and refused treatment by healthcare professionals. This is why they want to strike down the 2020 regulations issued by the Trump administration. Judge Block agrees that the 2020 regulations are illegal because they authorize discrimination on the basis of sex in declining to protect patients from discrimination on the basis of their sexual identity. The Court applies the reasoning in Bostock to non-employment cases, i.e., health care discrimination. 

What it all means is that the court has stayed the 2020 regulations, which repeal the Obama-era 2016 regulations. The preliminary injunction is granted.

Circuit rejects constitutional challenge to Ebola quarantines

This is a timely ruling. The Court of Appeals takes up quarantine restrictions, though they involve a prior pandemic, Ebola, where two individuals who had returned from Africa during the 2014-2016 pandemic were required to quarantine for 21 days. The Court of Appeals does not actually rule on whether these quarantine orders are illegal. It says instead that the law at the time was not clearly established such that Connecticut officials, including the Governor, can invoke qualified immunity.

The case is Liberian Community Assn. of Connecticut v. LaMont, issued on August 14. The plaintiffs were Ph.D. candidates from the Yale School of Public Health who went to Liberia analyze data collected during the Ebola outbreak. We have other plaintiffs also. When they returned to the United States, they were ordered to quarantine for 21 days, and police officers were deployed outside their apartments to make sure they complied with this directive. Plaintiffs never tested positive for Ebola. 

Plaintiffs claim the quarantine orders violated due process and the Fourth Amendment because their liberties were restricted. The problem for plaintiffs is qualified immunity, which says government officials cannot be sued unless they violated clearly-established case law. "Clearly-established" means that prior case law is closely on point such that government officials are on at least constructive notice that they are violating the law. Over Judge Chin's dissent, Judge Livingston says there is no clearly-established law in this area, i.e., civil commitments in the context of infectious diseases. While the court has discretion to first determine whether Connecticut officials violated the law, a ruling that would thus create clearly-established law for the next quarantine case, the Court of Appeals chooses not to do so. Of course, such a ruling would make life easier for courts that take up the quarantine orders arising from COVID-19, but since the Court heard oral argument in this case more than two years ago, perhaps it was more important to get the ruling out once and for all.

Judge Chin dissents, arguing that the law in this area is clearly-established. He notes that the Supreme Court long ago ruled that the government cannot isolate people during an epidemic in a way that goes "so far beyond what was reasonably necessary for the safety of the public," and, other cases in general hold that "commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." In 1996, the Second Circuit held in Jolly v. Coughlin, a prison quarantine case, that inmates could not be held in medical keeplock where they did not have active tuberculosis and could be actively monitored through other means. Second Circuit case law qualifies as clearly-established law. At least as plead in the lawsuit, under Rule 12, plaintiffs plead that defendants violated clearly-established law under the Constitution as they claim the isolation was unnecessary and there were less restrictive alternatives to protect others from Ebola.

Second Circuit upholds New York's gun laws under the Second Amendment

The Court of Appeals takes up a Second Amendment challenge to New York gun laws, finding that the laws, which require that gun owners have "good moral character" and that the gun license may be revoked for "good cause" are not unconstitutionally vague and are therefore legal.

The case is Libertarian Party of Erie County v. Cuomo, issued on August 11. The Supreme Court activated the Second Amendment in Heller v. District of Columbia, its landmark ruling in 2008 that held for the first time that the Second Amendment confers an individual right to gun ownership. But Heller does not extend this right without any limitation. The Supreme Court said the government still has authority to restrict gun ownership in certain instances. In the world of constitutional law, Heller is still sufficiently "new" that challenges to state gun rules are still upon us in the hope that the federal courts will strike them down under Heller. Not this case.

Courts will strike down laws under the "void for vagueness" doctrine when the statute is sufficiently indefinite that "ordinary people can understand" its language and guide themselves accordingly. But this doctrine does not require legislatures to "meticulous specificity." To win such a challenge, the plaintiff must show that "no set of circumstances exist under which the Act would be valid." So this is a difficult standard to meet.

Plaintiffs argue that New York's rule that guns may be restricted unless the gun owner has "good moral character" or upon "proper cause" or "good cause" runs afoul of Heller. Not so, the Court of Appeals (Kearse, Walker and Jacobs) says, because the Supreme Court in Heller said its ruling will not "cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." Heller also said these examples are not exhaustive, suggesting there are other ways for the government to restrict guns.

What it means for plaintiffs in this case is that ordinary people would understand "good moral character" and "good cause" to cover drug addiction, repeatedly reckless conduct with a weapon while intoxicated, and threats to harm others. There is no reason for confusion under New York's statutory language. The Court of Appeals also upholds New York's gun laws because they advance legitimate goals and do not prevent law-abiding, responsible gun owners from having a weapon. It does prevent people with serious criminal records, fugitives from justice, and drug addicts from having a gun.