Two out of three ain't bad on inmate-plaintiff's excessive force claims

Excessive force claims are not uncommon in the prisons and jails. The question is whether anyone will believe the inmates who claim their jailers beat them up for no good reason. I've seen plaintiffs win and lose these cases, including my own clients, but you can imagine how difficult it is for an inmate to convince a jury that a correction officer broke the law in using force inside the prison walls. In this case, the plaintiff has two excessive force claims reinstated after the trial court dismissed them on summary judgment. Whether the jury will believe the plaintiff at trial is another story, but for now, plaintiff will savor this victory.

The case is Frost v. New York City Police Department, issued on November 12. This is the case that keeps on giving, as the various issues give rise to three blog entries at this link (reinstating the fabrication of evidence claim) and that link (relating to the malicious prosecution claim, which has been dismissed). The final discussion for this case involves excessive force. 

There were three incidents that give rise to plaintiff's case. First, on October 9, 2012, plaintiff says he was transported to Bronx Supreme Court for an attorney visit. Plaintiff told one of the escorting CO's, "I should spit in your fuckin' face." At deposition, plaintiff admitted that he might have said this. As an initial point, inmates who say this to law enforcement are asking for trouble. I am not suggesting they deserve to be beaten up for such a thing, but you know how the world works. In response to plaintiff's comment, the officers took him to the ground, kicked him in the ribs and dragged him by his leg shackles. Plaintiff suffered a ruptured eardrum and bruising on his forehead and cheek. While the district court dismissed this claim because the courts have rejected excessive force claims when inmates spit or threatened to spit on correction officers, this was not really a threat but a statement that plaintiff "should" spit on the officers. A minor distinction, but enough for trial. "Although  it is possible that this statement would have been interpreted as a threat, . . . it is also possible that it would have been interpreted as an insult or an expression of disdain." If the jury agrees with the latter interpretation, then plaintiff can win, as the record does not establish that he had otherwise provoked the beating. You cannot assault inmates simply because you are mad at them.

The next incident took place on January 16, 2013, when plaintiff hid something in his rear-end and would not take it out when the CO's demanded that he do so. The officers used force to get the potential contraband, and they found that plaintiff had been secreting a small weapon. Video footage of the incident shows that the officers did not use excessive force. Rather, plaintiff had resisted the officers and tried to prevent them from doing their jobs. He also struggled with the officers. The Court of Appeals finds that plaintiff cannot win this claim at trial, and it's gone, goodbye.

The third incident happened on July 16, 2013, when CO's had to extract plaintiff from a recreation yard and plaintiff had resisted their authority during that maneuver. Video footage convinces the Court of Appeals that the officers did not use excessive force in trying to do their jobs. But plaintiff can still win this claim because after plaintiff was subdued following a "vigorous" struggle, an officer struck him. One of the officers had repeatedly moved his knee toward plaintiff's head, and other inmates were yelling at the officer to stop striking plaintiff. This sounds like a close call, but the Court of Appeals thinks there is enough for plaintiff to win this claim, even if plaintiff is not the most sympathetic plaintiff in the world, having resisted the officer's authority on multiple occasions.

Supreme Court stays Cuomo's order restricting religious gatherings in New York

The other day, I wrote about a Second Circuit ruling that upheld Governor Cuomo's Covid-19 executive order limiting the size of religious gatherings, rejecting a constitutional challenge that the order violated religious freedoms. That Second Circuit ruling has now been stayed by the Supreme Court, which holds that the order likely violates the Free Exercise Clause of the First Amendment.

The case is Roman Catholic Diocese v. Cuomo, issued on November 25. While you were preparing Thanksgiving dinner, the Justices were working on this case. The Court summarizes the issue as follows:

[Plaintiffs] seek relief from an Executive Order issued by the Governor of New York that imposes very severe restrictions on attendance at religious services in areas classified as “red” or “orange” zones. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25. The two applica- tions, one filed by the Roman Catholic Diocese of Brooklyn and the other by Agudath Israel of America and affiliated entities, contend that these restrictions violate the Free Exercise Clause of the First Amendment, and they ask us to enjoin enforcement of the restrictions while they pursue appellate review. 

Citing a variety of remarks made by the Governor, Agudath Israel argues that the Governor specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included. Both the Diocese and Agudath Israel maintain that the regulations treat houses of worship much more harshly than comparable secular facilities. And they tell us without contradiction that they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.

To win an injunction in the Supreme Court, you have to show (1) you will likely win the case and (2) without the injunction, you will suffer irreparable harm that cannot be undone even if you ultimately win the case a year from now. Injunctions are not easy to win, as you are asking the court to declare preliminary victory at the outset of the case. 

By a 5-4 margin, the Supreme Court says the religious plaintiffs are likely to win the case. The Justices say the executive order singles out houses of worship "for especially harsh treatment." How so?

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.

When the government singles out religion in issuing regulations, it must show these restrictions are necessary to satisfy a "compelling" interest and that they are narrowly-tailored. That did not happen here, the Court says. 

Stemming the spread of COVID–19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as “narrowly tailored.” They are far more restrictive than any COVID–related regulations that have previously come be- fore the Court, much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.

Since the denial of constitutional rights even for a limited period of time creates irreparable harm, the religious plaintiffs easily satisfy that standard as well. 

The Court sums up this way:

Members of this Court are not public health experts, and we should respect the judgment of those with special exper- tise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.

The four dissenters include the liberal Justices (Sotomayor, Kagan, and Breyer) and Chief Justice Roberts, who write that since the Governor has since revised the regulations, this case is moot. The majority says the case is not really moot because the restrictions could resurface at a later date. On the substantive issue, Justice Sotomayor writes that there really is no discrimination on the basis of religion because the executive order treats everyone the same when it comes to public gatherings, where large groups of people are more likely to infect each other. That is different from more generous rules guiding retail establishments, which do not typically attract large groups of people.

New York applies “[s]imilar or more severe restrictions . . . to comparable secular gatherings, including lectures, con- certs, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” Likewise, New York “treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.” That should be enough to decide this case.

    . . .  

Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today. The Constitution does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives. 

The newest Justice, Amy Coney Barrett, voted with the majority. Since Justice Barrett replaced Justice Ginsburg, who probably would have voted the other way on this issue, this final Trump appointment to the Supreme Court is already having consequences for constitutional law. 

I was telling someone the other day that constitutional law is interesting because every case is a puzzle, and there are technically no right or wrong answers in that way that math may only have one right answer to a problem. Constitutional law is in the eye of the beholder. The Free Exercise Clause on its own terms says nothing about how courts should interpret and enforce it. We leave that to judges. In any 5-4 ruling, both sides may have a good point. But five votes wins and four votes loses. Had this case arisen a year ago, the religious plaintiffs would have lost. Had Justice Ginsburg lived, same result. 

Every few years, the Court seems to adopt a legal issue that predominates its rulings. In the 1950s and 1960s, it was school segregation and the rights of criminal defendants. During the Vietnam War years, we have First Amendment cases involving the rights of antiwar protesters. In the 1970s, we had a series of due process cases that rewrote the standard for general governmental fairness in decision making. And so on. The current Supreme Court is on a mission to strengthen religious freedoms under the Constitution. This case highlights that trend.

 

Court upholds Cuomo's executive order on Covid-19 restrictions

We are slowly but surely developing a body of case law on rights and responsibilities arising from the Covid-19 pandemic. When the government began limiting public behavior in Spring 2020, I wondered if anyone would sue over these measures that would clearly be unconstitutional in the absence of a serious public health emergency. People have sued, and these cases are now wending their way through the courts. In this case, the Second Circuit finds that Gov. Cuomo had lawfully restricted public assemblies, rejecting the religious freedom objections raised by the plaintiffs. 

The case is Agudath Israel of America v. Cuomo, issued on November 9. The Governor issued a "red zone" for certain high-infection neighborhoods in New York City, prohibiting non-essential gatherings of any kind, closing non-essential businesses, prohibiting restaurants from seating customers, and preventing houses of worship from hosting more than 10 people or more than 25 percent of their maximum capacity, whichever number is lower. 

The courts do not seem to squarely resolve a threshold issue: whether the government has any authority to impose restrictions like this at all. At this point, we are just assume the Governor can impose restrictions on public behavior. The Court in this case starts off with grim statistics about the death toll caused by Covid-19. These are not ordinary times, when even a slight speech restriction can result in liability against the government. Now the government is able to impose serious public assembly restrictions that would never survive constitutional scrutiny in normal times.

Plaintiffs argue that the religious components of the Executive Order violate the Free Exercise Clause of the First Amendment. That's the freedom-of-religion clause. Plaintiffs are bringing the hail-Mary of legal arguments: an immediate injunction against this order, prior to trial. To win such an injunction, the plaintiff has to show it will likely win the case, will suffer irreparable harm without the injunction, and that the public interest favors its position. Plaintiffs cannot satisfy that high burden.

Governmental rules or laws violate the Free Exercise Clause when they single out a religion and treat that religion unequally from secular entities and people. In 1990, the Supreme Court said these rules do not discriminate against religion so long as these rules apply to everyone. The Court of Appeals (Lohier, Rakoff [D.J.]) rules against the religious plaintiffs because, while the Executive Order does impact these houses of worship, they are not being singled out by the Order. The color-coded zones that Gov Cuomo created depend on the severity of the infection rates in those neighborhoods. "Within each zone, the order subjects the religious services to restrictions that are similar to or, indeed, less severe than those imposed on comparable secular gatherings." The Circuit court cites a recent Supreme Court and Seventh Circuit case to support its holding, recognizing that a body of Covid-19 case law is starting to develop.

Judge Park dissents, demonstrating these are still difficult issues. The dissent looks at the record differently than the majority, writing that, within the same zones, houses of worship are subject to more strict restrictions than certain "essential" businesses, some of which have no restrictions. Judge Park adds, "the executive order does not impose neutral public health guidelines, like requiring masks and distancing or limiting capacity by space or time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retain stores, and construction) for favorable treatment, calling them 'essential,' while imposing greater restrictions on 'non-essential' activities and religious worship.'" This seems to be the key distraction between the majority and dissenting opinion. While the majority says the distinction between essential and non-essential was based on epidemiological evidence, Judge Park disagrees, stating there is no data or scientific study in the record, only observations by public health officials.

No malicious prosecution claim for plaintiff who was acquitted in murder case

Malicious prosecution claims are hard to win because, in addition to showing the criminal proceeding terminated in your favor (and an ACD does not count), the plaintiff has to prove the officers proceeded with the prosecution maliciously and there was no probable cause to justify the proceeding. That last element is what dooms this claim.

The case is Frost v. New York City Police Dept., issued on November 12. I wrote about Frost in a different context, at this link, where the Court of Appeals held that the plaintiff was able to proceed with his fabricated evidence claim against the police after proffering evidence that the police coerced an "eyewitness" to claim that plaintiff was involved in a murder for which plaintiff was ultimately acquitted at trial.

That acquittal was a great victory for plaintiff, but that does not mean he can sue the officers who arrested him. Acquittal at trial is an important first step in going after the police, but acquittal does not necessarily mean the police lacked probable cause. This reality is confusing for clients, many of who assume that they can seek money damages after the police put them through the wringer in arresting them in the first place. The problem with that logic is that the case law allows the police off the hook if there was probable cause to arrest, even if the guy was ultimately proven not guilty.

Probable cause exists when the police have information that "would lead a reasonable person to believe the plaintiff is guilty." The Second Circuit (Katzmann, Kearse and Bianco) finds the police had probable cause because they saw surveillance video depicting plaintiff and someone else walking down and then running up a stairwell from which the victim was shot, immediately after the victim was shot. The other guy identified plaintiff as the shooter. The police also believed plaintiff had a motive to shoot the victim, because the victim's friends had assaulted plaintiff the night before. This supports probable cause as a matter of law; there is no reason to bring this issue before a jury. 

While plaintiff says probable cause cannot exist merely because he was near the scene of a crime and a fellow suspect had identified him as the culprit, cases in this Circuit already hold that "an individual's presence in the location from which shots are fired can support a finding of probable cause. The cases cited in support of this proposition are unpublished Second Circuit rulings. While citation to cases like that are frowned upon in the Second Circuit, they can still provide guidance on the issues if they are close enough to the case at hand. To the extent that no published case has supported probable cause on facts like this, then this case provides the precedent once and for all.

Fabrication of evidence claim is revived on appeal

The Court of Appeals has reinstated a claim alleging that the police has manufactured evidence against a criminal defendant in the course of a murder investigation. The Second Circuit clarifies that evidence fabrication claims in this jurisdiction will continue to be analyzed as due process violations, notwithstanding a recent Supreme Court ruling that the dissenting judge believed changes the legal standard.

The case is Frost v. New York City Police Dept., issued on November 12. While investigating a murder in the Bronx, police investigators found two witnesses who had implicated plaintiff. But plaintiff alleges that the police had coerced one of these witnesses, Vega, into implicating him. After plaintiff was acquitted at trial, he sued the officers for evidence fabrication, a claim grounded in the due process clause, as the Court of Appeals has held since at least 1997, when it issued Riccuiti v. N.Y.C. Transit Auth., 124 F.3d 123 (2d Cir. 1997). While the police argued that they had an evidentiary basis to prosecute plaintiff even without Vega's coerced statement, the Court of Appeals (Katzmann and Bianco) says that "probable cause is not a defense to a fair trial claim based on the fabrication of evidence" and that "even if a privileged arrest accounted for at least some portion of the deprivation of a Section 1983 plaintiff's liberty, a plaintiff may still suffer a deprivation of liberty as a result of an officer's fabrication." It is therefore irrelevant that "there was sufficient evidence to prosecute Frost without Vega's identification."

While Judge Kearse in dissent states that the coerced identification did not taint the trial, since Vega did not testify at trial, that does not matter, the majority says, because "a criminal defendant's right to a fair trial protects more than the fairness of the trial itself. Indeed, a criminal defendant can bring a fair trial claim even when no trial occurs at all." What matters is that the tainted evidence "would be likely to influence a jury's decision, were that evidence presented to the jury."

The monkey wrench in this case is a 2017 Supreme Court ruling, Manuel v. City of Joliet, 137 S.Ct. 911 (2017), that says a Section 1983 plaintiff can challenge his pretrial detention based on fabricated evidence under the Fourth Amendment even if a judge determines this evidence constitutes probable cause. The argument is that if this is a Fourth Amendment claim, the Fourteenth Amendment due process analysis does not apply, which could lead to a different result in the civil action. The City has been arguing in other cases that Manuel makes it easier to dismiss these cases, including a case that I am handling. But, the majority says, "our precedents establish that a fair trial claim under the Due Process Clause may accrue before the trial itself," which means that Manuel does not preclude this claim. 

Did he jump or was he pushed? Is this issue for a jury?

This is an interesting case about employment discrimination law and summary judgment. I argued the appeal, in which the Second Circuit holds the plaintiff did not present enough evidence that he was fired from his job.

The case is Ware v. L-3 Vertex Aerospace, a summary order issued on November 5. To make out a prima facie case of retaliation under Title VII, the plaintiff must show he was subjected to an adverse employment action, usually a termination or demotion. When they have lost their job, Plaintiffs will lose on this element of the claim when they argue they were constructive discharged, a difficult burden because the plaintiff must prove his job conditions were so bad that a reasonable person would have been compelled to resign. Prior to this one, I have not yet seen a case where the Court said the plaintiff was unable to prove that he was fired.

After plaintiff spoke out against racial discrimination in the workplace, he got on the phone with a supervisor, who had been one of the targets of plaintiff's complaints. When the call ended, plaintiff was out of a job. The question is how his job ended. The supervisor testified that plaintiff resigned his position. Plaintiff said at deposition and in his summary judgment affidavit that he never resigned. But he never affirmatively testified that he was fired, as in, "I was told my services were no longer needed," or that "I was fired." Should a jury decide if plaintiff was fired? The Court of Appeals (Lynch, Parker and Livingston) says this issue is not suitable for trial. Here is how the Court resolves this issue:

Ware contends that a material issue of fact exists as to whether Jardee terminated his employment during this conversation or whether Ware resigned. He asserted at his deposition that he “thought [he] was terminated” by Jardee and that he “never resigned.” But he also testified that he was “honestly . . . not sure” how his employment ended. Id. Apart from his own equivocal statements during his deposition, there is no other evidence that Ware was terminated. 

After their phone call, Jardee emailed, “Roy, Per our recent telephone conversation on December 22 we accept your resignation of employment effective immediately.” The subject line of the email was “Resignation.” Ware replied, “Yes you will here [sic] from my lawyer soon Todd for your discrimanation [sic] and unethical treatment towards me as a L-3 employee.” Although Ware argues now that he did not understand at the time that he was saying “yes” in response to an email stating that he resigned, such testimony is, absent any other support in the record, self-serving and inconsistent with the evidence. See Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 22 (2d Cir. 2014) (citing Jeffreys v. City of New York, 426 F.3d 549, 555 n.2 (2d Cir. 2005)).

The email evidence is interesting because I argued the "yes" was the equivalent of a verbal tick where you say something without really meaning it, as in normal conversation, and that it cannot by itself foreclose a trial or that he was conceding that he had resigned. The Court of Appeals disagreed, further noting that right after the call, the supervisor told others in management that plaintiff had resigned his position.

Courthouse argument leads to misdemeanor conviction

Mens rea is a Latin phrase that normally arises in criminal cases. It means the defendant's mental state contributed to the criminal or unlawful conduct. In this case, the Court of Appeals explores mens rea in a case where a woman showed up to the federal courthouse in Binghamton looking for a fight. She got one, and she got convicted.

The case is United States v. Wasylyshyn, issued on November 3. Defendant showed up at the courthouse, which also houses the IRS, claiming she wanted to visit that agency. The guards told her she needed to make an appointment. She said she only wanted to pick up some tax forms. The guards told her "this is how it is done." Next thing you know, an argument broke out. Defendant said she was a doctor and that the guards were public servants who paid her salaries (public officials hate when you say this). The shouting got loud. In the end, defendant was charged with disorderly conduct in violation of federal noise regulations. The U.S. Magistrate Judge tried the case without a jury and ruled against defendant, who challenges her conviction on appeal.

The appellate argument is that the federal regulation does not articulate a mens rea element and that she did not have the mens rea for the violation because she did not know her conduct was wrongful. This is an interesting argument, but the Court of Appeals (Carney, Livingston and Berman [D.J.]) rejects it. Criminal statutes are presumed to contain a mens rea element. "We apply a canon of statutory interpretation to read criminal statutes that are silent or ambiguous as to the required standard of mens rea[] to demand knowledge of enough facts to distinguish conduct that is likely culpable from conduct that is entirely innocent.”

The Court reads into the federal regulation "only a general intent requirement, i.e., that the defendant possessed knowledge with respect to the actus reus of the crime." Actus reus is another Latin phrase, sort of the brother of mens rea, which means the defendant committed the act that leads to the criminal violation. Under this principle, the court will "focus on 'knowledge of wrongdoing,' which, we have explained, 'requires knowledge only of facts that in a reasonable person would create an expectation that his conduct was likely subject to strict regulation.'”

The Court finds that defendant must have known she was doing wrong when she raised her voice at the courthouse. The Court puts it this way:

Courthouses are formal spaces where solemn government business takes place; a reasonable person would understand that shouting at security officers in a courthouse is a “non-innocent act,” likely subject to some form of regulation. Hence, a general intent requirement suffices to distinguish “likely culpable” from “entirely innocent” conduct. To convict Wasylyshyn of violating the Noise Regulation, the government had to prove that she had knowledge she was creating a “loud or unusual noise or a nuisance” on federal property, 41 C.F.R. § 102-74.390(a), not that she knew of a specific regulation proscribing her conduct.

Since the trial judge created the security officers' testimony that defendant was shouting at them and her voice could be heard 40 to 45 feet away, and she did not stop shouting after they told her to calm down, the court was able to find that she knowingly created a loud noise or a nuisance.

By the way, it took over a year for the Court of Appeals to resolve this appeal, as it raised complicated issues, including the mens rea question. All to address a misdemeanor conviction that carried a $50 fine and $30 processing fee. There was no jail time.