Employers are not required to honor reasonable accommodations that violate state law

This is another COVID-19 reasonable accommodation case. This plaintiff did not want to take the vaccine, claiming it violated her religious convictions. She also objected to her employer's alternative to the vaccine: routine COVID testing. Plaintiff objected to that on religious grounds, also. Plaintiff's proposed accommodation would have her working remotely. Plaintiff loses.

The case is Russo v. Patchogue-Medford Sch. Dist., issued on February 26. The pandemic threw everyone for a loop. School teachers like plaintiff were teaching remotely for a while, but the districts eventually re-opened the building. That's when the accommodation requests started. In this case, the district said the accommodation -- continued remote working -- would be an undue hardship because it would violate a New York State regulation that requires routine COVID testing. The other undue hardship is this: the district requires teachers like plaintiff to be present in the building as an essential function of her employment. The district would incur significant expenses were the plaintiff to work remotely, requiring the district to pay someone to incur plaintiff's in-person duties.

The district court granted the school district's motion for summary judgment, and the Court of Appeals affirms. The Second Circuit has previously held that it's an undue hardship if the proposed accommodation would violate federal regulations. This case extends that logic to accommodation requests that would violate state law. The added district expense to pay plaintiff's in-person replacement is an undue hardship.

The other claim involved the Genetic Information Nondiscrimination Act. This may be the first published Second Circuit case involving GINA. Plaintiff said the school district violated GINA in soliciting and using her genetic information by inquiring about her and her child's vaccination histories during the religious exemption signatures. The Court of Appeals (Walker, Leval and Bianco) holds there is no GINA claim "because her family member's vaccine history does not constitute genetic information under the statute." Under the statute, "genetic information" involves an individual's genetic tests, the genetic tests of an individual's family members, and the manifestation of a disease or disorder in an individual's family members.

Supreme Court scales back civil rights attorneys' fees statute

This decision will be of great interest to civil rights lawyers. It will also be of interest to the municipalities that defend civil rights cases. The Supreme Court holds that a plaintiff who wins a preliminary injunction under Section 1983 is not a prevailing party for purposes of recovering an attorneys' fees award. 

The case is Lackey v. Stinnie, issued on February 25. Under 42 U.S.C. 1988, "prevailing parties" in civil rights cases, usually brought under 42 U.S.C. 1983 and the employment discrimination statutes, will recover attorneys' fees from the losing side. The statute provides for this to encourage lawyers to bring meritorious civil rights cases even if their clients have little if any money to finance these cases. Normally, the prevailing party recovers fees following a favorable jury verdict. But over the years, nearly all the federal circuits have said you can recover attorneys' fees even if you win a preliminary injunction, which is an early victory in the case because the judge thinks you have a strong case and the plaintiff will suffer irreparable harm without an injunction. The order granting the preliminary injunction would entitle you to fees. Those cases, including those in the Second Circuit, are now all overruled.

In this case, the plaintiffs won a preliminary injunction challenging a Department of Motor Vehicles rule allowing the State of Virginia to issue certain fines against people with suspended drivers' licenses. They won the case under the Due Process Clause. The Fourth Circuit said plaintiffs were prevailing parties and their lawyers could recover attorneys' fees for their efforts. The state took the case to the Supreme Court.

The fee-shifting statute does not squarely address this particular issue. Lawyers know, but the general public does not know, that much of constitutional law and even statutory analysis is judge-made. Judges will use precedent and logic to reach their conclusions, but any case that reaches the Supreme Court can go either way. This is one of those cases. As I mentioned, nearly all the Circuit Courts have sided with the plaintiffs on whether preliminary injunctions entitle you to "prevailing party" attorneys' fees. But in many instances, the Supreme Court does not defer to the 13 Circuit Courts, and the Supreme Court rarely employs the logic from lower courts to justify its conclusions. The Supreme Court usually decides cases from scratch and draws from whatever Supreme Court precedent that might speak to the issue, even if those cases do so on the periphery.

In this case, the Supreme Court, by a 7-2 vote, reverses the Fourth Circuit and interprets the phase "prevailing parties" to mean you have to prevail in the lawsuit overall, and not at the injunction stage, to recover attorneys' fees. The analysis draws from the statutory construction: what does "prevailing party" mean? The Chief Justice says that dictionary definitions in place when the fee-shifting statute was enacted in 1976 suggest that "prevail" means winning the case overall, not a huge win early in the case that produces a court order favoring the plaintiff on the merits. "Temporary success" early in the case is not enough to qualify as a "prevailing party."

This ruling also follows from prior Supreme Court rulings in attorneys' fees cases. In 2001, the Court held in Buckhannon v. West Virginia, that you are not a prevailing party if your lawsuit compels the government to change the challenged policy in your favor before the court has a chance to rule in the case. These were called "catalyst fees." You don't hear the phrase "catalyst fees" anymore because the Court in a 5-4 vote, said you need a court order to qualify for attorneys' fees, and if the government moots out the case by changing the challenged policy, there is no court order or judgment and the case withers away without fees for the lawyers who did all the work that led to the changed policy. Buckhannon also rejected the views of nearly all the Circuit Courts that held that Section 1988 recognizes catalyst fees. 

Justices Jackson and Sotomayor dissent. The third liberal on the Court, Kagan, voted with the six conservatives. The dissenters interpret the contemporary dictionary definitions of "prevailing party" quite differently from the majority. The dissenting opinion says the majority is missing the point of the fee-shifting statutes: to allow plaintiffs access to the courthouse by allowing their lawyers to recover attorneys' fees when they win the case and/or achieve a great result for their clients. When Justice Jackson joined the Court, people were excited that someone with her credentials and background would have a voice on the Court for the first time. I said that it would mostly mean that we would be reading good dissents like this one.

I wonder how this case will affect civil rights litigation in the future. Bear in mind that a permanent injunction will entitle you to fees, even if a preliminary injunction will not. Plaintiffs' lawyers, especially non-profits who bring these cases without charge, rely on Section 1988 to pay the bills when they win the case. Injunctions are sought with the understanding that the court will award attorneys' fees when the plaintiffs recover an early injunction due to the strength of the case. Justice Jackson cites an amicus brief that says that "losing the ability to recoup fees for securing interim relief will jeopardize their missions." She adds that "there is thus every reason to believe that the net result of today's decision will be less civil rights enforcement in the long run."

Court says conservative group may proceed with lawsuit challenging Pfizer's student fellowship program

The Court of Appeals has withdrawn a prior ruling involving a conservative group's challenge to a corporate fellowship intended to increase minority representation at Pfizer, the pharmaceutical company. In the first ruling, the Second Circuit held that the group, Do No Harm, could not sue because it lacked standing to seek a preliminary injunction in failing to identify any of the students who wanted to benefit from the fellowship. This time around, on a motion for reconsideration, the Court of Appeals says Do No Harm can bring the suit after all.

The case is Do No Harm v. Pfizer, issued on January 10. The original ruling issued in March 2024. Discussion on the original ruling is at this link.  The plaintiff organization claims the Pfizer program benefits Black, Latino, and Native American students at the expense of whites and Asian-Americans in violation of the civil rights laws. In support of its case, the plaintiff group filed anonymous declarations from two of its members who sought the fellowship. They claimed they met all the eligibility requirements for the fellowship, i.e., they were college students with good grades and took part in campus life. 

While Do No Harm did not have standing to seek a preliminary injunction against the program (on the basis that it did not identify the aggrieved students), that does not mean the case had to be dismissed at the district court level. That's the holding of the Court of Appeals (Jacobs, Robinson and Wesley in dissent), which reinstates the lawsuit. In seeking a preliminary injunction, the plaintiff's burden to establish standing is higher than their burden to prove standing at the outset of the lawsuit, when the plaintiffs are not seeking injunctive relief and are willing to litigate their claims the old-fashioned way, through depositions and other discovery. 

The D.C. Circuit Court of Appeals has already held that an inability to establish standing in seeking a preliminary injunction does not mean the plaintiff lacks standing to pursue the case. But if the lack of standing in seeking an injunction demonstrates that the plaintiff cannot prove standing going forward on the case, then the case may be dismissed. This is highly nuanced, as you can see. Here is the basis for the distinction:

if the failure to establish standing arises from the insufficiency of the plaintiff’s evidence of standing, and that insufficiency may be remediable, dismissal of a plaintiff’s claims because the plaintiff has failed to muster sufficient evidence to  establish standing for a preliminary injunction would be premature. A determination that the plaintiff hasn’t presented enough evidence to establish standing in the preliminary injunction context doesn’t mean the plaintiff won’t be able to do so at a later stage in the proceeding. The most obvious circumstance in which this may arise is when the plaintiff may require jurisdictional discovery to get the evidence needed to support the plaintiff’s standing.

However, the Court of Appeals states:

But even in cases where the plaintiff’s failure to muster sufficient evidence to establish standing to secure a preliminary injunction arises from the plaintiff’s failure to proffer sufficient evidence to establish standing, the consequence of that failure is that the plaintiff isn’t entitled to a preliminary injunction. We see nothing in the law or rules of procedure that requires plaintiffs who opt to seek a preliminary injunction on incomplete evidence to risk outright dismissal, even if their allegations are otherwise sufficient to establish standing at the pleading stage.

The district court adopted the wrong rule in dismissing the case outright. The case returns to the district court to determine if the plaintiff has sufficiently pled standing to bring this lawsuit.

 

 

 

 

This case is for federal practice junkies only

This case reviews the federal statute that allows you to bring state law claims in federal court. For a variety of reasons, many plaintiff's lawyers are more comfortable in federal court than in state court. Not this case. Plaintiff wanted the case to be handled in state court. 

The key statute in this area is 28 U.S.C. 1367. The issue here: what happens if the plaintiff sues in state court under state and federal law, the case is removed to federal court (because of the federal claim), and the plaintiff then drops the federal claim in order to return to state court?

The case is Royal Canin USA v. Wullschleger, issued by the Supreme Court on January 15. This case alleges the defendant engaged in deceptive marketing practices. The product is dog food. The lawsuit asserted claims under state and federal law. Since plaintiff filed this case in state court, defendant successfully removed the case to federal court. But plaintiff did not want her case in federal court; she wanted to return to state court, for whatever reason. In fact, plaintiff wants so badly to litigate the case in federal court that she is willing to litigate the case all the way to the Supreme Court. Had plaintiff been OK with federal court, the case might have been decided by now.

This is what plaintiff did: she amended the complaint to remove all mention of federal law. She argued that this maneuver would allow the case to return to state court. At least, that's the argument. After all, as the Court says, federal courts "are courts of limited jurisdiction." You can file in federal court if you assert a federal claim. You can also file in federal court if the parties are from different states and the amount in controversy exceeds $75,000. If the case asserts claims under state and federal law, the federal court can decide issues under state law, unless the issue is so esoteric that the federal court does not feel comfortable resolving state law issues without giving the state judges a chance to resolve these issues first. 

The federal statute on this issue, 28 U.S.C. 1367, was enacted in 1990, and it has its complexities, but it does not speak to the issue in this case. The Supreme Court holds without dissent that once the federal claim is dropped from the lawsuit, the case has to return to state court. 

You may think this is a simple issue, but simple issues do not reach the Supreme Court. The certiorari petition says that the Eighth Circuit's decision in favor of remanding this case to state court was an outlier, and that the other circuits had gone the other way on this issue. The petition states:

Only the Eighth Circuit has concluded that, in a properly removed action, the district court must look to an amended complaint to determine whether it possesses federal-question subject-matter jurisdiction.  Every other circuit has come to the opposite conclusion; namely that once an action is removed to federal court, the pleading on which removal was predicated is the source of the district court’s subject-matter jurisdiction, notwithstanding any subsequent amendment.

This is the rare case where the Supreme Court sides with the reasoning advanced by an outlier Circuit in resolving a legal issue.
 

New York's Chief Justice attacks criminal conviction of mentally-ill man

This criminal case is notable not for its holding but its dissenting opinion, where the Chief Judge of the State of New York wonders why a mentally-ill defendant was convicted of burglarizing a CVS store in Manhattan. The dissent (to which only Judge Halligan signed on) offers a rare sociological attack on the criminal justice system.

The case is People v. Williams, issued on February 18. Defendant was charged with burglary in the third degree based on his trespass on the premises of a CVS with intent to steal Red Bull energy drinks The majority holds the jury could have found that defendant knew his entry into the store was unlawful based on the trespass notice that defendant had signed, prohibiting his entry into any CVS location. What about the intent element? Surveillance footage depicted the defendant outside the CVS acting in a furtive manner. The store manager testified that defendant slammed the Red Bull items down and stormed out when the manager demanded that defendant turn over the Red Bull. Defendant later admitted to the police that he "fucked up," he "did it," and "all I took was a Red Bull."

Now for the dissent. This may seem like a routine case, but the Chief starts out with this:

Two cans of Red Bull cost about $6. Seven years of incarceration costs anywhere between $800,000 and $4 million, depending on the location within New York State. For attempting to take two cans of Red Bull from a CVS, Raymond Williams was convicted of third-degree burglary, a felony, and sentenced to three and a half to seven years in prison. Mr. Williams was a perpetual petty shoplifter with substance abuse and mental health problems, so perhaps this result makes sense to someone. It does not to me.

The Chief adds:

Mr. Williams's story is not uncommon. For much of his life, he has struggled with homelessness and drug addiction. Both factors disproportionately increase the risk of being caught up in the criminal justice system and sentenced to spend time in prison. Mr. Williams had previously been found guilty of many minor shoplifting offenses, including from other CVS stores. His problems were addressed by sentences of incarceration and probation, not treatment.

Mr. Williams's prosecution occurred in 2017. His appeal comes to us 8 years later, and the People's brief in our Court explains that what happened to Mr. Williams back then is not what would happen now:

"For retail-theft cases where a defendant does not present a serious public safety risk, the Office now typically pursues multiple alternatives to incarceration. Defendants charged with a retail-theft felony are frequently diverted to the problem-solving courts under CPL Article 216 or similar provisions, where, in place of incarceration, they can receive programming to address underlying problems of substance abuse, mental health, and more. Defendants charged with a retail-theft misdemeanor are also routinely directed to an array of behavioral health court parts and programs, including the Midtown Community Justice Center, Manhattan Justice Opportunities, and others."

Apart from the psychiatric and fiscal wisdom of charging and convicting defendant, the Chief states that the jury could not have reasonably convicted him of intending to steal the two Red Bulls. The surveillance video shows defendant entering the CVS with a bag. He took two cans from the beverage cooler but did not exit the store with them. Instead, he headed to the front of the store. Nor did he put the cans in his bag or pockets. A CVS recognized defendant as someone subject to a trespass notice, and when a manager confronted defendant, he handed over the Red Bulls and left the store.

This evidence, Judge Wilson states, is not enough to convict defendant. Any suggestion that defendant entered the store with intent to steal the Red Bulls is conjecture. Nor did defendant's statements to the police a month later ("I fucked up") support a finding of guilt, as these "admissions" are taken out of context. He did not actually admit to taking any Red Bulls from the CVS.

The Chief returns to the broader social implications of a conviction like this. He writes:

Imprisoning someone for attempting to walk off with two cans of Red Bull—even a recidivist Red Bull shoplifter—for three and a half to seven years is very hard to justify to the public. Belatedly, one of the jurors in Mr. Williams case recognized that, and also explained that the jury convicted Mr. Williams based not on the evidence of his conduct that day, but on the trespass notice from a prior incident, thus underscoring the point that the evidence offered as proof of Mr. Williams's intent to steal was insufficient to persuade the jury. At trial, the court instructed the jury that the trespass notice could not be used to show that Mr. Williams intended to steal or had a propensity to steal, but could be used by the jury solely to establish that Mr. Williams's entry to the CVS was unlawful, which is a necessary element of burglary.

A juror wrote to the trial court about the case, stating that defendant did not deserve to be imprisoned for this offense. The juror adds that she tried to persuade the other jurors that defendant was innocent. While the juror herself voted to convict, she wrote, "I now have tremendous doubt about that decision, but I recognize that it's too late. I feel deep remorse[.]

The Chief then says:

A 2020 survey of more than 1000 Americans, conducted by the Associated Press-NORC Center for Public Affairs Research, showed that more than two-thirds of those surveyed believed the U.S. criminal justice system (including the police, prosecutors, defense counsel, courts and prisons) either needed reforms or a complete overhaul. More than four times as many thought a complete overhaul was required than those who thought no changes were needed. Those findings are in line with many other studies conducted over the past decade. A majority of Americans also support treating addiction as a health problem rather than a criminal problem, and support treatment over incarceration for people with drug addiction and mental illness.

Mr. Williams's case illustrates so many of the reasons for that lack of trust and confidence. Persistent recidivist shoplifting is a significant problem. It is constantly frustrating for shoppers, who have to wait to have displays unlocked, and for retailers, who lose countless items to theft. But charging the attempted theft of two Red Bulls as felony burglary reveals a different persistent problem: the prosecutorial overcharging of petty offenses. As explained by the current Manhattan District Attorney's office in its brief in this appeal, treating petty offenders with mental health and/or substance abuse problems as dangerous criminals is unhelpful, is a huge waste of taxpayer dollars that could be better spent on addressing those problems instead of incarceration, and is not now the paradigm used by that office.

 He adds, 

Punishing Mr. Williams for offenses growing out of his addiction and poverty is neither necessary nor fair—not just unnecessary and unfair to Mr. Williams, but to the community at large. People living with mental illness or addiction in New York are much more likely to encounter the criminal justice system—even though community-based treatment is cheaper and more effective than services in prison. Unhoused people are also much more likely—up to 11 times more likely—to be arrested than those who are housed^. But incarceration does nothing to address their health and housing needs. Misdemeanor convictions for offenses such as petty larceny reduce earning potential and deepen inequality. The resources we use to incarcerate those populations could be better spent on housing, job training and educational support. "Let's just be honest: there's nothing compassionate about letting people suffer without treatment on the streets."

 

 

Second Circuit vacates whistleblower verdict due to bad jury charge

The Court of Appeals vacates a $903,000 whistleblower verdict on the basis that the trial court did not properly charge the jury about the plaintiff's burden of proof. We have a strong dissent.

The case is Murray v. UBS Securities, LLC, issued on February 10. Plaintiff was fired after he reported to a supervisor that coworkers had violated Securities and Exchange Commission regulations. The case went to trial, plaintiff won, the Second Circuit took the verdict away, and the case went to the Supreme Court, which held that, contrary to the Second Circuit's analysis, plaintiff did not have to prove the employer acted with "retaliatory intent" because intent or "animus" is not an element of any retaliation claim under the Sarbanes-Oxley Act of 2002. On remand from the Supreme Court, the Second Circuit again erases the verdict and remands the case for new trial on the basis of defendant's other jury charge objections, which no appellate court has ruled upon until now.

Under the statute, the employer is liable if its whistleblowing was a contributing factor to the unfavorable personnel action, i.e., the plaintiff's termination. The trial court charged the jury as follows: a contributing factor is one that "tended to affect in any way UBS's decision to terminate plaintiff." The Court of Appeals, by a 2-1 vote, says this instruction was incorrect and a new trial is in order.

First, the Court holds, "tended in any way to affect" the decision to fire the plaintiff is wrong because the jury has to be told that the whistleblowing is at least "partly responsible for" the adverse action. But, the Court holds, this charge is bad because "[w]histleblowing may 'tend to affect' termination generally, without being partly responsible for a particular plaintiff's termination." Taken literally, this charge allows the jury to rule in the plaintiff's favor if the jury merely thinks that whistleblowing in general might tend to result in someone's termination, even if the whistleblowing did not affect this particular plaintiff's termination. In other words "the words 'tended to' 'increased the level of abstraction such that a jury might look beyond whether the whistleblowing activity caused the termination to whether it was the sort of behavior that would tend to affect a termination decision."

Second, the Court holds, the "in any way" language was misleading because it allowed the jury to consider effects that did not contribute to plaintiff's termination. The Court reasons that "in any way" might produce a plaintiff's victory even if the employer's reaction to the whistleblowing was not actually a contributing factor, such as if the whisteblowing caused the company to consult counsel to weigh the risk of a potential lawsuit before terminating the employee, as the "whistleblowing could be said to have 'affected' that termination by 'producing an . . . alteration' in how it came about, even if the decision to terminate was not 'based on whistleblowing -- not even a little bit."

In dissent, Judge Perez writes that the majority's reasoning "takes a pessimistic view of the jury's grasp of the trial proceedings (and of the English language) because no reasonable juror would be so myopic as to be knocked off course by six words in a charge comprising more than fifty-seven hundred," and the charge as a whole accurately conveyed plaintiff's burden of proof by variously stating that plaintiff must prove his whistleblowing "was a contributing factor in the termination of his employment." We usually examine jury charges as a whole and examine the offending language in context. Judge Perez says "'tended' to affect' is a reasonable, nontechnical way of conveying that burden -- that is, of conveying that Murray needed to show that his whistleblowing increased the probability that UBS would fire him but not that it was a but-for cause of him being fired" As for the "affect in any way" portion of the charge, that was proper because "surely a reasonable juror would know that Murray did not sue UBS because of the manner in which he was fired." Rather plaintiff sued "because he was fired."

A couple of observations here. First, Judge Park wrote the majority ruling, and Judge Menashi agreed with it. Judge Perez wrote the dissent. We have two Trump appointees in the majority and a Biden appointee in dissent. This case shows us the ideological divide on the Second Circuit, though not every case has this particular panel. Second, I wonder what the jury in this case would think of this ruling? The jury probably does not know this case is still going on, years after it rendered its verdict. Nor is the jury likely to know that the case went to the Supreme Court, or that the Court of Appeals just vacated the verdict because it thinks the jury could have been misled by the jury instructions. Jurors reach a verdict and then leave the courthouse to return to their lives. They never know that the case is far from over, or that judges and lawyers might spend the next several years picking through the case and evaluating how the jury might have analyzed the case.

Court clarifies when "adverse inference" charge results from lost ESI evidence

This case went to trial in federal court in White Plains. The plaintiff alleged that City of Yonkers police officers used excessive force in arresting him by activating their Taser. The plaintiff lost at trial, but he appeals on the basis that the jury should have been allowed to hold it against the City for not producing the Taser video. Plaintiff loses the appeal.

The case is Hoffer v. Tellone, issued on February 13. At trial, plaintiff testified that the police Tased him twice in the lower back while he was incapacitated, lying face down his hands under his stomach, and being kicked and punched by 8 to 10 officers. I have represented people who got Tased, and they will tell you it is the world's worst pain. The body is immobilized for five seconds, and during that five-second period, which feels like five hours, you feel like you are being electrocuted. The police will Tase people who resist arrest and there is no other way to get them under control. You cannot Tase someone merely to punish them.

The officers admitted that plaintiff was Tased, but they explained that they did so because after the first Tasing, plaintiff tried to get up and and run away. The tiebreaker would bre the video generated by the Taser gun. The officer said the second Tasing overrode the first video. But plaintiff's girlfriend, Goff, who was present at the scene, testified that she heard the officer tell a colleague that the USB drive in his hand "shows everything that we did and nothing that he did."

This all led plaintiff to ask the trial court to issue an adverse inference instruction, which allows the jury to assume that the police intentionally or negligently discarded the video and that the video, therefore, may have helped plaintiff's case. The trial court denied the charge and jury ruled in favor of the police after deliberating for two days. So this was a close case.

In 2015, the Federal Rules of Civil Procedure were amended to address what happens when a party does not produce electronically-stored information, or ESI. If the ESI is wrongfully lost, the court can take "measures no greater than necessary to cure the prejudice." Sanctions against the offending party may include issuing an adverse inference charge to the jury. Key to this rule is the offending party's "intent to deprive" the other side of relevant evidence. The Court of Appeals reaffirms that standard, which applies to this case and results in the appellate loss for plaintiff, who could not prove the police intended to misplace or destroy the USB drive. 

The party desiring the adverse inference must show the offending party violated the ESI protocols by a preponderance of the evidence. The Court of Appeals (Walker, Park and Nathan) articulates this rule for the first time. The preponderance test is used in most other civil cases, so it makes sense to apply it here. This rule does not just apply to police cases. It will apply to your case, also, whether it involves employment discrimination or a civil fraud claim.

What it means for plaintiff is that the court, and not the jury, must determine whether the offending party deserves the adverse inference sanction. Rule 37 makes that clear, the Court of Appeals notes, and the trial court is usually responsible for determining an appropriate discovery sanction. The trial court in this case said the police did not intend to deprive plaintiff of the USB video. 

The astute reader can predict how the Court of Appeals resolves this issue in this case. Once we agree that the trial court makes the factual finding on "intent to deprive," and we know the trial court ruled against plaintiff on this issue, it is almost impossible for plaintiff to win the appeal. The standard of review in challenging the trial court's factual findings is "clearly erroneous," and standard is the kiss of death. Sure enough, that's what happened in this case. Here is the reasoning:

In  denying  Hoffer’s  request  for  an  adverse  inference instruction, the district court, applying the correct “intent to deprive” standard, concluded that the evidence was insufficient to establish that any defendant acted with the intent to deprive Hoffer of the use of the first taser video.  The district court reasoned that it did not “know what to make of” the taser report, which reflected only one use of the taser during the arrest, and that there was “just not enough evidence for [the court] to be even convinced” that there ever existed a video of the first taser deployment. The district court further observed that it was “not at all clear” what Officer Goff meant by  information  being  “overwritten,”  and  that  “nothing  about Sergeant  Goff’s  testimony  suggested  that  he  had  any  direct knowledge or experience with the document management system for these taser videos, let alone anything having do with this particular video.” These findings were not clearly erroneous.