Sort of like a qualified immunity for private defendants

In 2018, a divided Supreme Court said that non-union public employees can withhold their "fair share" union dues if the union activity, including the act of negotiating a new labor contract, violated the First Amendment. Under this interpretation of the free speech clause, forcing employees to pay union dues constitutes coerced speech. This was an expansive interpretation of the First Amendment, to say the least. It also encouraged public employees to withhold their union dues even as they continued to benefit from the union's advocacy. That ruling raises a new issue, addressed in this case.

The case is Wholean v. CSEA SEIU Local 2001, issued on April 15. That Supreme Court ruling was called Janus, which overruled a 1977 Supreme Court ruling called Abood. After Janus came down, plaintiffs asked that the union pay back the union fees they paid out before the Supreme Court issued Janus. So they wanted a retroactive reimbursement of fees that the Supreme Court said in Janus violated the First Amendment.

Is the union required to make this reimbursement? In 1991, the Supreme Court said in Wyatt v. Cole, 504 U.S. 158 (1992), that private citizens who rely unsuspectingly on state laws they have no reason to believe were invalid should have some protection from liability. This is sort of like a qualified immunity doctrine for non-governmental actors. In Wyatt, several Justices believed that a good-faith defense for private individuals who rely on precedent has always existed in our legal system. The Court of Appeals (Cabranes, Lohier and Reiss [D.J.]), writes:

Since Wyatt, every Circuit Court of Appeals to have considered the question has held that a good-faith defense exists under § 1983 for private individuals and entities acting under the color of state law who comply with applicable law, including three circuits who have concluded that a good-faith defense is available to unions that relied on Abood and applicable state law in collecting fair-share fees prior to Janus.

I must say, I was not aware of this good-faith defense to lawsuits in the private context. But it was there all along. The defendant union in this case can invoke the good-faith defense, the Second Circuit says, because noting in Janus suggests the ruling was retroactive, and the unions collected union dues in reliance on Supreme Court precedent that was controlling at the time, the Abood case.

Inmate wins deliberate indifference appeal after another inmate assaulted him

We all know that prisons are violent places. Did you know you can sue the correction officers if they allow prison fights to take place? These cases are hard to win, but this inmate has convinced the Court of Appeals that he has enough evidence for a trial.

The case is Morgan v. Dzurenda, issued on April 15. While incarcerated in Connecticut, plaintiff cooperated with correction officers about gang activity at the prison, developing a reputation as a snitch. The snitch reputation followed plaintiff as he as transferred to a new prison, and he filed an inmate request form for assistance after another inmate, Rodriguez, called him a smith and threatened to snap his neck. A prison captain minimized plaintiff's concerns and told him to "learn to fight like a man" and "stop being a snitch." Plaintiff continued to complain about Rodriguez's threats. You know what happens next, right? Plaintiff's enemy beat the hell out of him.

The Eighth Amendment governs cases like this. The plaintiff must show the jailers were deliberately indifferent to the threats. This extends to protecting prisoners from violence at the hands of other prisoners. The Supreme Court said that in Farmer v. Brennan, 511 U.S. 825 (1994). Inmates have to jump through all sorts of hoops to meet this standard, including proving that the defendant was both aware of the potential harm to the plaintiff and that he was deliberately indifferent to to risk of serious harm. Deliberate indifference is one of the most difficult standards to meet in constitutional law. But plaintiff could win the case, the Court of Appeals (Pooler, Calabresi and Park) says, because plaintiff alleges that the jailers ignored his written and verbal pleas for help, that the jailers were dismissive toward those concerns, and that plaintiff was hurt by the very person he was complaining about. In reversing the grant of summary judgment for the defendants, the Court of Appeals concludes:

we find that Morgan raised a question of material fact as to whether “a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past,” such that a trier of fact could find that Chapdelaine and Godding “had actual knowledge of the risk” posed by Rodriguez. 

1. 
   
   

Bad eyewitness testimony entitles defendant to a new trial

Every judge has his or her own passions. Over the years, Judge Rakoff of the Southern District of New York has written extensively about criminal justice, the power of prosecutors, the death penalty, and related issues addressing the fairness (or unfairness) of the criminal justice apparatus. The New York Review of Books publishes some of his articles. In this case, he addresses a similar issue about the ineffective assistance of counsel and the prejudicial use of eyewitness testimony. He finds that the defendant in this case was denied proper representation because counsel did not object to questionable eyewitness and other evidence.

The case is United States v. Nolan, issued on April 15. Judge Rakoff is sitting by designation in this appeal. Judges Sack and Hall agree with his analysis. Judge Rakoff surveys the recent social science research on the unreliability of eyewitness accounts. Then he gets into the facts, involving the defendant's alleged involvement in an armed robbery. The witnesses identified defendant, but all four such identifications had serious reliability problems, i.e., they did not identify defendant until they saw his photo in an array presented to them more than one month after the crime. But defendant's lawyer did not move to preclude these eyewitness accounts, and defendant was found guilty, as the prosecutor relied in part on those eyewitness accounts in summation. He now gets a new trial on this habeas corpus appeal.

The Second Circuit says that defense counsel could have prevailed on such a motion to preclude based on these problematic eyewitness accounts. And even if the motion failed, counsel could have educated the trial judge about "the frailty of the identifications." Judge Rakoff points out, in part, that while all the victims were black and Hispanic, defendant is white. "It is well established that eyewitnesses are materially less accurate when identifying individuals of a different race, or a different ethnicity." Also, many weeks elapsed between the crime and when the victims were shown the photo array. Precedent and social science research confirms that such a time gap is troublesome. The Court adds:

Finally, and perhaps most egregiously, the police employed highly irregular procedures in pursuing the witnesses’ identification of Nolan, potentially biasing the victims’ identifications by, for example, allowing them to talk among themselves about Nolan’s identification and allowing them to view his photos on Facebook. Studies have demonstrated that the memories of eyewitnesses are extremely susceptible to contamination by external information, a common source of which is “cowitness interaction.”

Another problem with trial counsel's performance was that he did not object when the prosecutors showed the jury defendant's Facebook picture holding a BB gun that looks like a handgun. The photo is not direct evidence of the crime, and it does not place defendant at the scene of the crime. While the government says the photo proves defendant's access to and comfort with firearms, that's a weak argument, the Court says, and it "must be weighed against the obvious prejudice to the defendant that would result from showing the jury a photo of a defendant charged with armed robbery posing with a gun of any kind." In the least, counsel should have asked the trial court for a limiting instruction on this photo to minimize the unfair prejudice. What it all means is that the conviction is vacated and defendant will have a re-trial.

Exciting res judicata issue headed for New York Court of Appeals

Well, maybe not exciting, but important. This case presents a dilemma. Plaintiff says she was denied overtime wages in violation of the Fair Labor Standards Act and the New York Labor Law. But her federal lawsuit was not her first go-round on this issue. She had previously filed an action in small claims court for nonpayment of wages, and that court awarded her $1,000. Does that mean plaintiff cannot now sue again in federal court?

The case is Simmons v. Trans Express Inc., issued on April 13. We got ourselves a res judicata problem. That's a Latin phrase for "another court already took up this issue, so you can't raise it here." Under New York City Civil Court Act section 1808, the res judicata statute pertaining to New York City small claims judgments,

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.

One interpretation of this section is that Section 1808 narrows the preclusive effects of res judicata for small claims judgment and allows for subsequent litigation of claims arising from the same or similar facts as those arising from the small claims actions. Except that your small claims judgment reduces the federal judgment so you don't recover twice. That's how plaintiff sees it. The Second Circuit agrees that plaintiff's interpretation "has persuasive force." But the appellate divisions have reached different interpretations. The confusion seems to turn on whether the courts think the second lawsuit raises claims that are sufficiently related to the small claims actions. The Second Circuit (Hall, Sullivan and Bianco), writes:

We are thus left to survey a landscape of conflicting Appellate Division decisions. All the New York courts that have interpreted Section 1808 agree that it has some preclusive effect, despite the statute’s clear language that “a subsequent judgment obtained in another action or court involving the same facts, issues and parties” would seemingly not be precluded but merely be “reduced by the amount of a judgment awarded” in small claims court. However, the New York courts do not agree on the details of Section 1808’s preclusive effect. On the one hand, the Second Department interprets Section 1808 not to preclude a plaintiff from asserting claims in Supreme Court that arise out of the same facts or occurrences as claims previously asserted in small claims court. On the other hand, the First and Third Departments interpret Section 1808 to bar such claims.

When the Second Circuit is confronted with a state law issue that has not clearly been resolved in the state courts, it certifies the issue to the New York Court of Appeals, which can then issue a definitive ruling. That is what the Second Circuit does here. And that's where this issue is now headed.

Third Department holds that falsely reporting hate crime is not disorderly conduct

The jury properly found this defendant had falsely reported a racially-motivated assault on a bus transporting SUNY Albany students back to the campus one night. The appellate court reaches that holding because it cannot find evidence in the video footage of racist comments. But the conviction is overturned in any event because the Appellate Division, Third Department, says the provision of the disorderly conduct law under which the defendant was convicted does not criminalize public, noncommercial speech, even if false.

The case is People v. Burwell, issued on April 9. The statutory provision is P.L. 240.50(1), which makes it unlawful to "falsely report[] an incident . . . when, knowing the information reported, conveyed or circulated to be false or baseless, he or she initiates or circulates a false report or warning of an alleged occurrence . . . of a crime . . .  under circumstance in which it is not unlikely that public alarm or inconvenience will result."

This provision is unconstitutional because it regulates speech based on content in that it only criminalizes a certain type of speech. Even false speech is protected under the First Amendment, but only this kind of false speech is illegal under the statute. There is in fact a compelling governmental interest in singling out this kind of false speech, i.e. hate crimes, as the government has the right to prevent public alarm and the waste of public resources predicated on false reports. Even so, the statute does not attack this misconduct from the least-restrictive means, as required under the First Amendment, because the defendant's false comments (including her comments on Twitter) are not the kind of "public alarm or inconvenience" that the statute was intended to prohibit. The statute is impermissibly broad under the First Amendment.

The Third Department goes on to ask, "although it was not unlikely that defendant's false tweets about a racial assault at a state university would cause public alarm, what level of public alarm rises fo the level of criminal liability?" General concern by those reading the tweets "does not rise to that level, nor does proof adduced at trial, which established that defendant's tweets were 're-tweeted' a significant number of times," which constituted nothing more than "a charged online discussion about whether a racially motivated assault did in fact occur, which falls far short of meeting the standard set forth in" Justice Breyer's concurrence in United States v. Alvarez, 567 U.S. 734 (2012). The Appellate Division offers some language that could only arise from the modern era:

The remedy for speech that is false is speech that is true, and social media platforms are information disseminating fora. By the very nature of social media, falsehoods can quickly and effectively be countered by truth, making the criminalizing of false speech on social media not 'actually necessary' to prevent alarm and inconvenience. This could not be more apparent here, where defendant's false tweets were largely debunked through counter speech," which means this portion of the disorderly conduct statute "was not actually necessary to prevent public alarm and inconvenience."

Plaintiffs lose funeral access case under the First Amendment

This case is fascinating and a good example of why we love the Constitution and the federal courts. Plaintiffs sued a town in Connecticut under the First Amendment because they were not allowed to attend their granddaughter's funeral. The First Amendment does protect the right to public assembly. I never thought it could apply to a case like this. The plaintiffs lose, not because there is no First Amendment right to attend a funeral but because there was strong evidence of a bitter dispute between plaintiffs and their adult child, the parents of the deceased.

The case is Rockwell v. Town of Hamden, a summary order issued on April 8. After plaintiffs were told they could not enter the church, they were sent to a public viewing area, where they could hear the audio of the funeral. This must have been quite a family dispute, which the Court of Appeals does not further explain. The Second Circuit is not a place for gossip; it is a place for the law.

First Amendment cases are complex because the courts have to apply multi-part balancing tests to decide whether the plaintiff's speech rights outweigh the governmental interest in maintaining order. In cases like this, courts apply the "time, place and manner" rule, which asks whether the speech restriction is related to governmental objections to the speech or public assembly, and whether the restrictions provide the plaintiff an alternative channel for communications. My experience is that the time, place and manner test tilts the equation in favor of the government, particularly when controversial speakers bring these lawsuits. But this test has been with us since at least the 1980s.

While the plaintiffs were not protesters but instead wanted to attend their granddaughter's funeral, the government still had an important interest in keeping the peace, "particularly in light of the warning by [plaintiff's son] to the Hamden police that the Rockwells' appearance at the funeral would be disruptive and cause his family additional distress." In addition, plaintiffs received an "ample" access to the funeral, at least according to the Court of Appeals (Walker, Cabranes and Sack), because they were sent to the viewing area where other attendees were gathered. This was not a "perfect substitute, the Second Circuit says, but plaintiffs "received as much access as any other person who could not be seated." As the government satisfies the time, place and manner test, it was legally able to keep the plaintiffs away from the funeral, and the case is dismissed.

Supreme Court issues pro-plaintiff age discrimination ruling

A hidden trend over the last decade or so is that the federal courts have redefined the causation standard for employment discrimination cases. In 2009, the Supreme Court interpreted the Age Discrimination in Employment Act to mean that plaintiffs must prove the discrimination was the determining factor in the discrimination, not merely a motivating factor. In another case, the Court then interpreted Title VII's anti-retaliation provision the same way, distinguishing those cases from the language in Title VII's other provisions against disparate treatment, which only require proof that discrimination was a "motivating factor." The new standard is known as "but-for causation. The Supreme Court earlier this year also interpreted Section 1981, which prohibits racial discrimination in the making and enforcement of contracts, to require but-for causation. But it follows that up with this case holding that the more plaintiff-friendly motivating factor test guides the age discrimination law involving federal employees. Even more surprising for those of us who follow this issue, this was an 8-1 ruling.

The case is Babb v. Wilkie, issued on April 6. The reason why the Supreme Court interprets some federal discrimination statutes to require "but-for" causation and others only apply the "motivating factor" test is that the statutes all use different language. Some say that certain forms of discrimination or retaliation "because of" a protected characteristic or activity is illegal. Other statutes say discrimination cannot be a motivating factor. Whether Congress actually intended that these statutes apply different causation standards is a matter for legal scholars. What matters for us is that the Supreme Court is applying the language in the statutes as if Congress did intend that each of these phrases was put there for a reason.

The provision of the Age Discrimination in Employment governing federal employees uses different language than the provisions affecting everyone else. It says that "All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age." Under the plain language of the statute, Justice Alito writes for the majority, "age need not be a but-for cause of an employment decision for there to be a violation of" this provision.

The Supreme Court likes to consult old dictionaries to see what the operative language in federal statutes really means. That means the Court has the best set of dictionaries in America. Using dictionaries from 1966, 1969 and 1976 (the ADEA was enacted in 1967), the Court says that "the phrase 'free from' means 'untainted' or 'clear of (something that is regarded as objectionable)." In "common talk," to be "free from" has the same definition. As for the phrase "shall be made," dictionary definitions "emphasize the important of avoiding the taint." The Court then considers how these phrases interact with each other. In the end, "age must be a but-for cause of discrimination -- that is, of differential treatment -- but not necessarily a but-for cause of a personnel action itself. . . If age discrimination plays any part in the way a decision is made, then the decision is not made in a ay that is untainted by such discrimination." This is complex, but the Court provides an example of how this works:

To see what this entails in practice, consider a simple example. Suppose that a decision-maker is trying to decide whether to promote employee A, who is 35 years old, or employee B, who is 55. Under the employer's policy, candidates for promotion are first given numerical scores based on non-discriminatory factors. Candidates over the age of 40 are then docked five points, and the employee with the highest score is promoted. Based on the non-discriminatory factors, employee A (the 35-year-old) is given a score of 90, and employee B (the 55-year-old) gets a score of 85. But employee B is then docked 5 points because of age and thus ends up with a final score of 80. The decision-maker looks at the candidates' final scores and, seeing that employee A has the higher score, promotes employee A. 

This decision is not “made” “free from any discrimination” because employee B was treated differently (and less favorably) than employee A (because she was docked five points and A was not). And this discrimination was “based on age” because the five points would not have been taken away were it not for employee B's age. 

It is true that this difference in treatment did not affect the outcome, and therefore age was not a but-for cause of the decision to promote employee A. Employee A would have won out even if age had not been considered and employee B had not lost five points, since A's score of 90 was higher than B's initial, legitimate score of 85. But under the language of § 633a(a), this does not preclude liability.