Qualified immunity for police officers in fatal shooting case

A few days ago I wrote about a recent qualified immunity decision from the Supreme Court, which has been summarily reversing lower court rulings on this issue without oral argument, finding, on immunity grounds, that a Section 1983 plaintiff cannot bring an excessive force claim against the police. This is another such case.

The case is City of Tahequah v. Bond, issued on October 18. It happened in Oklahoma. The decedent's ex-wife called the police because Dominic was intoxicated, would not leave the home, and "it's going to get ugly real quick." When the police showed up, Dominic led them into the garage and he began fidgeting with something before he grabbed a hammer and held it in a manner suggesting he was going to swing it like a baseball bat or even throw it or charge the officers. The officers were six feet away. Dominic did not drop the hammer and the police shot and killed him.

The Tenth Circuit said the jury may find that the police shooting was excessive and the officers recklessly created the situation that led to the fatal shooting by cornering Dominic. The Supreme Court reverses without oral argument or extended briefing, holding that the law was not clearly-established that facts like this give rise to a Fourth Amendment violation.

Qualified immunity gets police officers off the hook if no prior case law suggests their actions were unconstitutional. That does not mean there has to be a case on all fours, but the prior case must come close. The point is that only the most incompetent public officials may be get sued. Otherwise, they get the benefit of the doubt.

What wins the case for the officers is that the Tenth Circuit cases that that court relied upon in rejecting qualified immunity are quite unlike this one. One case, Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), involved a potential suicide victim whom the police shot and killed after they ran toward him and tried to wrest a gun from his hands. That is not this case, the Supreme Court says. Another Tenth Circuit case says in dicta that deliberate pre-seizure police conduct can give rise to an excessive force case. But that case is no good because the Tenth Circuit in that case held it had no jurisdiction to even hear the case. You see where we are going with this. The prior cases have to be a tight fit with this one.

Circuit weighs in on res judicata, the FLSA, and small claims court

This case looks at what happens when you sue someone in small claims court for your overtime money and then sue the employer in federal court under the Fair Labor Standards Act and the New York Labor Law. The Court of Appeals says the small claims action triggers claim preclusion principles. In other words, res judicata!

The case is Simmons v. Trans Express, LLC, issued on October 26. This case was originally argued in the Second Circuit in January 2020. The Court of Appeals certified this case for review by the New York Court of Appeals in April 2020 because the Second Circuit wanted a definitive state court ruling on the applicability of the New York Civil Court Act, which governs the preclusive effect of judgments rendered by a small claims court. That law says as follows:

A  judgment  obtained  under  this  article  shall  not  be  deemed  an adjudication of any fact at issue or found therein in any other action or  court;  except  that  a  subsequent  judgment obtained in another action or court involving the same facts, issues and parties shall be reduced by the amount of a judgment  awarded  under  this  article.

After the small claims court awarded Simmons $1,000 in her case against Trans Express for lost wages, she filed suit in federal court under the FLSA and the state Labor Law, under which she would most likely recover more damages. 

After the Second Circuit sent this case to the New York Court of Appeals for definitive ruling, the latter court said that, under the Civil Court Act, "ordinary rules of claim preclusion apply to the judgments of the small claims court." Claim preclusion is the same thing as res judicata, which is Latin for "the judgment in one court means you can't bring the same case in a different court," even if the second court might give you more money. In other words, one court to a customer.

With the case back in the Second Circuit, the court then applies traditional res judicata principles in determining whether Simmons can maintain the claim in federal court. She cannot. Prior cases have held that a small claims judgment from a wrongful discharge and defamation claim prevents the litigant from bringing a national origin discrimination claim arising from the same events in a different court. Another case holds that you cannot sue in one court for age discrimination when you've already sued for defamation in a different court. These holdings convince the Second Circuit (Sullivan and Bianco) that Simmons cannot maintain this federal action.

While Simmons argues that she actually sued in small claims court for wrongful discharge, making that case different from the federal action under the FLSA and NYLL, the Second Circuit says that, even if that were the case, we would still have claim preclusion, as both claims still arose from the same "transaction." 

What about the fact that Small Claims Court cannot award you more than $5,000, and the federal claims have a greater value than that? No matter, the Second Circuit says. Courts in New York have already held that "the small claims court's limited damages jurisdiction alters the preclusive effect of judgments."  

Supreme Court dismisses excessive force claim on qualified immunity grounds

The Supreme Court has issued another qualified immunity ruling that reverses a lower court decision that allowed an excessive force case to proceed against the police. The Court has been doing this for a number of years now, handing down qualified immunity decisions without oral argument, signaling that the lower courts are still allowing too many such cases to proceed.

The case is Rivas-Villegas v. Cortesluna, issued on October 18. It all started when the police got a 911 call stating that the mother's boyfriend was threatening people in the house with a chainsaw. The police arrived and the bad guy exited the house. So now we have a police confrontation. When he was 10-11 feet from the police, they saw a knife sticking out of his pocket. The bad guy appeared to reach for the knife, so the police twice shot him with a beanbag gun, whatever that is. The police officer then told him to get down, which he did. When another officer shouted out that the bad guy had a knife on him, an officer kneeled into his back for about eight seconds in order to seize the knife. 

The Ninth Circuit said the plaintiff-bad guy has an excessive force claim against the kneeling officer, but the Supreme Court reverses on qualified immunity grounds. Officers are entitled to this immunity when they do not violate clearly-established case law. Without clearly-established law, the officers are not on constructive notice they are violating the Constitution. Qualified immunity has been in the news lately, as legal commentators complain that it is quite difficult to win the case unless a prior court decision involves factual allegations that are nearly identical to the present case. Without clearly-established law, the officers cannot be sued and are therefore not accountable. A congressional effort to eliminate or limit this immunity recently failed.

The Supreme Court has been reversing lower court rulings without oral argument over the last decade or so in finding that the facts alleged by the plaintiff did not assert a clearly-established constitutional right. This is another such case. The Court unanimously says that even assuming we look to Ninth Circuit case law, there is no case from that Circuit that resembles this one. This case certainly looks like a close call on the facts so I don't know if the plaintiff could have won the excessive force trial in any event. He certainly was not a sympathetic plaintiff. They did say, after all, that he was threatening people with a chainsaw and exited the house with a knife.

The Court throws in a line that makes it clear that it has never told us exactly what body of case law governs the clearly-established inquiry. Is it appellate rulings from one of the 13 Courts of Appeal? Or is it Supreme Court authority? One of these days, the Court will resolve that issue. If the Court says you can only look to Supreme Court authority, that ruling will make it significantly harder for plaintiffs to win cases, I can tell you that.

No defamation claim against the New York Times

The Court of Appeals holds that a controversial writer cannot sue the New York Times for defamation arising from a series of articles in which the Times said he was "animated by race hatred," an "open white nationalist," and "anti-Semitic."

The case is Brimelow v. New York Times, a summary order issued on October 22. The Times published five articles in 2019 and 2020. The case is dismissed under Rule 12, so plaintiff has to satisfied the heightened Iqbal plausibility standard that the Supreme Court adopted in 2009 in determining whether the plaintiff states a viable claim. He does not, the Court of Appeals (Walker, Bianco and Menashi) says, because of another heightened legal standard: since plaintiff is a public figure, he has to plausibly allege that the Times acted with malice in describing him this way.

The Second Circuit has held that a public figure, in bringing a defamation claim, he "must plead plausible grounds to infer actual malice by alleging enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of actual malice." You cannot guess your way into a lawsuit. The Court wants facts that plausibly give rise to the elements of the claim. This may be a tall order if you are trying to prove the defendant had a malicious state of mind. 

Actual  malice  requires  that  the  Complaint  plausibly allege that the Times published the defamatory statements that form the basis of Brimelow’s claims with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” Plaintiff does not allege this. He claims the Times acted with malice because he had repeatedly denied being a white nationalist, which means the Times ran the articles knowing that its statements about him were false. But it is "well-settled that denials without more do not support a plausible claim of actual malice," the Court says, citing Edwards v. National Audubon Society, 556 F.2d 113 (2d Cir. 1977). At best, plaintiff alleges, the Times acted with journalistic negligence in writing the articles. Since negligence is not the same as "actual malice," the complaint fails to assert a claim, and the case is dismissed.

Court narrows the scope of religious harassment statute

It took the Court of Appeals two years to resolve this case, which interprets the Freedom of Access to Clinic Entrances Act, which makes it illegal to harass, injure, or interfere with someone who is exercising his religion "at a place of religious worship." The question here is what is a "place of religious worship"?

The case is Zhang Jungrong v. Chinese Anti-Cult Worldwide Alliance, Inc., issued on October 14. Plaintiffs are adherents of Falun Gong, a modern spiritual practice originating in China. They set up five tables on a sidewalk in Flushing, Queens, protesting the Chinese government's persecution of members of Falun Gong. They claim that defendants harassed them at the sidewalk tables. Defendants regard the plaintiffs as a cult and object to their views (some of which involve not taking medication for illness, and alien visits to Earth). The altercations at the heart of this case got pretty nasty: tables were knocked over, displays were torn down, people were threatened and assaulted, etc. Hence this lawsuit.

Are the table set-ups "places of religious worship"? The Second Circuit (Carney, Walker and Leval) says they are not. The statute does not answer this question directly, so the Court has to review dictionary definitions and legislative history. The dictionary definition could go either way, as "place of worship" "is susceptible to more than one plausible interpretation. The dictionary says this phrase  is defined as "a place where believers regularly meet for religious worship, esp. a building designed for or dedicated to this purpose." That does not help us, so the Court looks to the legislative history.

The legislative history shows that that Congress in enacting the law in 1994 contemplated that the statute prohibits harassment and threats at "a place recognized or dedicated as one primarily used for religious worship." That can include a fixed location, but other places as well. As applied to this case, the tables don't qualify for protection under the statute. They are not a place "whose primary purpose is religious worship." Rather, these tables are "a site for political protest activity against the Chinese Communist Party, even if some incidental religious practice took place at the tables."

If you are a Commerce Clause fan, Judge Walker's concurrence is for you. He believes that Congress has no authority to protect the tables as a place of religious worship because the Supreme Court has already held that the Commerce Clause does not reach "noneconomic, violent criminal conduct . . .  based solely on the aggregate effect on interstate commerce." The Court said that in United States v. Lopez and United States v. Morrison, in 1995 and 2000.

What happens when the case fails to settle?

What happens when settlement fails? A law professor/mediator has reviewed the numbers.

Vivian Berger has written in the past on the success rate for trials in the Southern and Eastern District of New York. This time around, she looks at the cases she has mediated over the last 35+ years.

Parties who file employment cases in the Southern and Northern Districts of New York are ordered to mediation. The courts do this because they know that early mediation can save everyone a lot of time and aggravation and, since most cases settle at some or another anyway, why not try to resolve the case early? 

Mediation is difficult for all parties. The plaintiff may enter the process in a state of anger over her unfair treatment. She may or may not listen to her lawyer's advice about the value of the case and whether to put the conflict behind her. The defendant is enraged that it's even being sued; no defendant will ever admit to breaking the law or discriminating against anyone, and the employer probably sees the entire exercise as extortion. The mediator, meanwhile, is handling the proceeding without charge (or for a small fee under the district court rules) and the process is tedious as he tries to bring all sides to a middle number. That can take hours and even multiple mediation sessions. Of course, when you're talking about money, emotions, and anger, it is hard to resolve the case. 

Yet, most cases wind up settling, if they are not dismissed on a motion for summary judgment. This is why we have so few civil trials. Berger's research shows that, of the 435 discrimination and wage & hour cases that she has mediated, most of them did settle at some point or another, if not with Berger than later on with assistance from the court or through the parties' attorneys working it out themselves. Berger was able to track 29 of the cases that were resolved on the merits. In 25 of those cases, it ended badly for the plaintiff, with 19 grants of summary judgment for the employer, two sui generis dismissals with prejudice, three defense verdicts following trial, and one defense victory following an EEOC hearing. The employee prevailed at trial four times, three times in federal court and once in arbitration.

Berger does not conclude that the best course for the plaintiff is to always settle at mediation, partly because he may get a better deal later on through independent settlement discussions. She also notes there are reasons a case does not settle, not only because the employer may not offer any money (or offers a nuisance amount) but because plaintiffs may "seek even an improbable victory in order to teach the employer a lesson and, it is hoped, prevent others from suffering discrimination in the future. Or they may wish to inflict pain on their adversary by forcing it to spend a lot of money in mounting a defense." When that happens, "if a claimant understands the risks she confronts and is conscious of the basis for her decision — rather than, say, so blinded by emotion that she is not really making a knowing choice among options — she is acting in her own interests, whether or not these appear rational in strictly economic terms." (Emphasis is Berger's).

Having said that, Berger concludes that "if, for whatever reason, she decides to prosecute her case till adjudication by a judge or a jury, she is extremely likely to lose." (Berger's emphasis). Here are the sobering numbers:

plaintiffs have a roughly 38.9% chance of surviving a summary judgment motion (at least, in our local federal courts) and a 30.0% chance of obtaining a favorable verdict at trial. In other words, the combined overall rate of success is a mere 11.7% (.389 times .330), even less than the 13.8% probability revealed in this account of my failed mediations. In addition, focusing just on summary judgment, the 65.5% rate of loss experienced by my claimants — which can be inversely expressed as a 34.5% survival rate — comes close to the 38.9% rate documented in my earlier study of the subject.

Citations to this research are found in the mediation article.  

Why do cases fail to settle? Berger suggests the following:

Although each matter presented its own peculiar dynamics, more often than not actions taken by the claimant’s side scotched resolution. When impasse occurred, it was frequently because either the employee started “too high” — at times, so much so that the employer declined to respond, thereby depriving the plaintiff of the chance to elicit a potentially acceptable offer — or, in the end, held out for “too much.” I use the quoted normative terms not just because 20-20 hindsight revealed that the game was not worth the candle, but also because my evaluation of the case at the time indicated that I believed the plaintiff was taking a very big gamble and making a mistake (at least, if she hoped to maximize her monetary gain).

Sometimes, the lawyer overvalued the case; often the client did, disregarding the mediator’s cautions and, I suspect, her attorney’s advice. Occasionally, both client and counsel had drunk the same Koolaid, or the latter may have feared losing the former’s confidence by pushing too hard. In no small number of instances, however, defendants created the barrier to settlement by taking a no-pay position or offering only nuisance value. While later events (often in the form of summary judgment) may have validated their view of the complaint’s absence of merit, usually any consideration of their prospective attorneys’ fees would have justified offering more.

NY Court of Appeals broadly interprets employment law protecting convicted job applicants

Did you know it is illegal in New York to decline to hire someone because of their criminal record? You can only slam the door if management shows an unhealthy connection between the crime and the job, i.e., a convicted embezzler cannot work as the comptroller. This case broadly interprets the statute.

The case is Sassi v. Mobile Life Services, issued by the New York Court of Appeals on October 12. Plaintiff worked for Mobile Life. After Sassi began working there, he was convicted for calling in a false emergency to 911. He was sentenced to 60 days' incarceration, which of course cost him his job. When Sassi was released from jail, he told Mobile Life that he wanted his job back. Human Resources told Sassi that the company had previously fired others who had been incarcerated and so, consistent with company policy, it could not bring him back, either. Sassi sues under the Correction Law article 23-A over this refusal to re-employ him.

The lower courts said Sassi has no case because he was convicted during his employment. The Court of Appeals unanimously reverses and finds that Sassi can return to work provided his crime does not create any kind of risk for Mobile Life, what we call the "direct relationship" test under the statute. Under the Correction Law, these protections apply to "any application by any person for a license or employment . . . who has previously been convicted of one or more offenses." 

Writing for the Court, Chief Judge DiFiore states that while the legislature may not have considered this precise scenario -- a request for re-employment with a pre-incarceration employer -- the statute protects Sassi in any event. The statutory language makes a difference here, stating that the law protects "any application by any person" for employment. "Any" means any. That would include re-employment to your old job that you lost upon the conviction. What also help Sassi is the statutory objective: allowing convicted persons a chance at re-entering society and making a living without having your criminal record follow you around for the rest of your life.

I would guess that Mobile Life will argue on remand that it cannot re-hire Sassi because there is a direct connection between Mobile Life's mission (it is an ambulance service) and Sassi's conviction (falsely reporting an emergency to 911). But that is for the lower courts to worry about. For now, the Court of Appeals offers what is perhaps the broadest interpretation of this statute in years