Thursday, February 15, 2018

Violence at municipal board meeting does not give plaintiff a false arrest claim

Civic engagement is a good thing, until someone gets slapped in the face. Then it's a bad thing. In this case, plaintiff got arrested for hitting someone at a town meeting. Following his acquittal, he brought a false arrest lawsuit. The Court of Appeals won't have it.

The case is Marom v. Town of Greenburgh, a summary order decided on January 23. Let's savor the facts of this case together:

The complaint arose from an altercation that occurred following a town zoning board meeting involving Marom’s application for an amended zoning variance. A number of Marom’s neighbors, including Deborah Salerno, objected to Marom’s application. Following the meeting, Marom struck Salerno in the face and was subsequently arrested by Officers Herighty and Knoesel for third degree assault. Marom’s wife, who witnessed the incident, informed at least one officer on the scene prior to Marom’s arrest that Salerno had kicked Marom before he struck her. Salerno described the pain caused by the slap to officers as “excruciating.” Herighty, Knoesel, and a sergeant together made the decision to arrest Marom. The third degree assault charge was reduced to second degree harassment the day after Marom’s arrest; he proceeded to a bench trial and was acquitted of that charge.
Third degree assault in New York involves physical injury, defined as impairment of physical condition or substantial pain. Petty slaps, in contrast, don't count and instead constitute harassment and not assault. Even a red mark or a black eye is not enough for an assault charge. The problem for plaintiff is that the victim

complained to police of pain to her face and neck, and she described the pain as “excruciating.” It is also undisputed that there were marks on Salerno’s face that were observed by the arresting officers. In light of Salerno’s characterization of the pain to the officers as “excruciating,”—a description that officers could reasonably interpret as constituting “substantial pain,” N.Y. Penal Law § 10.00(9),—“it was objectively reasonable for the officer[s] to believe that probable cause existed” with respect to the physical injury requirement, “or officers of reasonable competence could disagree on whether the probable cause test was met.” 
While plaintiff says his wife told the police that the victim kicked him before plaintiff hit her, that does not mean the police lacked probable cause. True, self defense is the kind if justification defense that can get you off the hook, but, as the Second Circuit (Winter, Lynch and Droney) says with understatement, "It is not clear from witness statements that Marom’s response to Salerno’s kick
to his shin—slapping her in the face—was necessary to defend himself or another. Marom’s slap could reasonably be viewed by the arresting officers as an unnecessary—and therefore unprivileged—act of retaliation." Since the police are not required to investigate exculpatory defenses prior to making an arrest, plaintiff's case does not survive summary judgment.

This same plaintiff recently lost another constitutional claim against a different municipality. He was a landlord who hosted an open house. The code enforcement officers showed up and issued him a citation for plumbing violations.The Court of Appeals in that case concluded that "Because Marom exposed his house and sauna to the public when he held the open house, the Defendants did not violate Marom’s Fourth Amendment rights by conducting an inspection and viewing the sauna during the event."

Tuesday, February 13, 2018

State law malicious prosecution against private citizen claim goes to trial

I often write about federal false arrest and malicious prosecution claims, many of which are dismissed on motions for summary judgment because the legal standards give the police the benefit of the doubt on threshold issues like probable cause. But in this case, the Court of Appeals revives a state law malicious prosecution claim brought against a private citizen. This case highlights the distinctions between federal false arrest claims and state law malicious prosecution claims.

The case is Shen v. City of New York, a summary order issued on February 9. As Shen and his wife left the federal courthouse one day, a photographer, Shapiro, was there covering Shen's court appearance. Shen made punching and kicking gestures but did not make contact with Shapiro, although Shen's arm became entangled in Shapiro's camera strap. An altercation ensued, but the parties dispute who started it. Shen and Shapiro were injured in the altercation. Shapiro then called the police and said that Shen had assaulted him. Shen was arrested and the charges were later dropped.

Chen claimed the police used excessive force against him during the arrest, but the Court of Appeals (Wesley, Parker and Droney) doesn't see it that way. "The undisputed facts thus show that the officers responded to an incident of reported violence by handcuffing Shen, the suspected aggressor, using two sets of handcuffs to accommodate his shoulder injury and in a way that did not result in any further injury to Shen, for (as relevant here) only the brief period of time that it took to place Shen in an ambulance to be transported immediately to a hospital for treatment of his injuries. In these circumstances, the district court correctly concluded that no reasonable juror could find that the officers’ conduct was objectively unreasonable. Shen’s excessive force claim therefore fails as a matter of law."

Moving on the federal malicious prosecution claim, Shen can't sue the police because they were able to rely on Shapiro's account of the fight instead of Shen's account. Section 1983 caselaw allows the police to credit the account of the putative crime victim unless the police have reason to believe they have no credibility. The Court notes that "we have found probable cause where a police officer was presented with different stories from an alleged victim and the arrestee." So the police are off the hook.

But Shapiro is not off the hook on the state law malicious prosecution claim. "In the context of a malicious prosecution claim under New York state law, a plaintiff can defeat a showing of probable cause “by evidence establishing that the police witnesses have not made a complete and full statement of facts . . . to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence[,] or otherwise acted in bad faith.” This exception to the finding of probable cause applies when a private citizen provides false information to the police. Here, since two disinterested witnesses claim that Shapiro and not Shen was the aggressor, and since Shen himself claims he was innocent, "these facts place the veracity of Shapiro's account into substantial question, and prevent summary judgment as to whether there was probable cause for the malicious prosecution claim against Shapiro."

Monday, February 12, 2018

Public access channel in NYC is a public forum under the First Amendment

The Court of Appeals holds that a public access non-profit elevision channel in New York City is a public forum for purposes of the First Amendment, which means it can be sued for suspending individuals involved in public access TV programming from using the corporation's facilities.

The case is Halleck v. Manhattan Community Access Corp., decided on February 9. The public forum doctrine is among the most complicated issues in constitutional law. If an entity is a public forum, the First Amendment places great restrictions on how the entity can regulate speech, especially political speech. We normally associate public forums with public entities, like the lawn in front of City Hall or a public square. But in this case, the defendant is a non-profit TV entity that is not quite a governmental organization.

A public service commission regulation in New York requires a cable TV system with a capacity for 36 or more channels to designate at least one full-time channel for public access use. Manhattan Community Access got the cable franchise in New York City.  Plaintiffs were suspended from the public access channel because of disapproval of the content of a TV program that Halleck had submitted to defendant's programming department. At first glance, you would think plaintiffs could not sue the community access channel because it is a private entity, and the constitution does not regulate private entities. But the Court of Appeals (Newman and Lohier, with Jacobs in dissent) says the channel is a state actor for First Amendment purposes, and therefore may be sued.

The majority parses a lengthy Supreme Court ruling, Denver Areas Educ. Telecomm. Consortium v. FCC, 518 U.S. 727 (1996). That case produced six separate opinions. The Second Circuit adopts the reasoning from Justices Kennedy and Ginsburg, who said "A public access channel is a public forum" as "they provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas." They added that "public access channels are public fora created by local or state governments in the cable franchise."

The Second Circuit concludes that "because facilities or locations deemed to be public forums are usually operated by governments, determining that a particular facility or location is a public forum usually suffices to render the challenged action taken there to be state action subject to First Amendment limitations."  But for plaintiffs to proceed in this case (it was dismissed for failure to state a claim), they must show the individuals behind the censorship decision "have a sufficient connection to governmental authority to be deemed state actors." They do. The Manhattan Borough President designated Manhattan Community Access Corp. to run the public access channels, so the employees of that corporation are not "interlopers in a public forum" but instead "are exercising precisely the authority to administer such a forum conferred on them by a senior municipal official."

The complex nature of this case is reflected in the concurring opinion by Judge Lohier and Judge Jacob's dissent, as well as the flurry of district court rulings that have reached conflicting results. But for now, the law is settled in the Second Circuit on this issue. The case is remanded for discovery.

Friday, February 9, 2018

Telemarketing text-spam case gets the heave-ho

The Telephone Consumer Protection Act prevents telemarketers from sending unwanted texts to your cell phone without consent. If the Act is violated, you can actually bring a lawsuit over this. This case is dismissed because the plaintiff gave his consent.

The case is Latner v. Mount Sinai Health System, decided on January 9. In 2003, plaintiff went to a Mt. Sinai facility for a health checkup. He signed a form that gave the hospital consent to use his health information "for payment, treatment and hospital operations purposes." Eight years later, long after plaintiff most likely forgot that he had even signed the form, the hospital hired a third party to send out flu shot reminder texts. He then got a text message reminding him that it was time for a flu shot. In the face of this outrageous breach of plaintiff's privacy, he brought this putative class action.

As revised in 2012, the telemarketing rules said the texting party needs prior written consent for this kind of telemarketing. The consent rule does not apply to "wireless cell numbers if the call 'delivers a health care message made by, or on behalf of a covered entity or its business associate.'" The district court dismissed the case, and the Court of Appeals (Cabranes, Livingston and Goldberg [C.I.T.]) affirms.

Plaintiff loses the case because he provided his cell phone number to the Mt. Sinai facility in 2003, agreeing that the hospital could share his information for "treatment" purposes. "Considering the circumstances, we hold that Latner provided his prior express consent to receiving a single text message about a 'health-related benefit' that might have been of interest to him."

Thursday, February 8, 2018

Job duties in rehabilitation program may be covered under FLSA

The pro se plaintiff defeats one of the largest law firms in the world in this Fair Labor Standards Act case in which a man who was ordered to participate in a drug rehabilitation program was not sufficiently compensated.

The case is Vaughn v. Phoenix House New York, a summary order issued on January 16. The large law firm is Cravath, Swaine and Moore. In rehab, plaintiff was required to perform certain "job functions" and told that he would go to jail if the program kicked him out for not doing his work. The trial court dismissed the case, holding that plaintiff was not an employee because received "the principal benefit of his participation in the rehabilitation program, which he had entered to resolve the criminal charges against him rather than for the purpose of receiving monetary compensation."

The district court got it wrong, the Court of Appeals (Katzmann, Walker and Calabresi) says, because it did not address an important precedent, Glatt v. Fox Searchlight Pictures, 811 F.3d 528 (2d Cir. 2016), which considers when unpaid interns are "employees" who deserve compensation. In that case, the Court said "the proper question is whether the intern or the employer is the primary beneficiary of the relationship” and set out a non-exhaustive set of factors for courts to weigh as they consider “the ‘economic reality’ of the relationship.” While that analysis was "confined to internships" and does not necessarily "apply to training programs in other contexts," "the nature of that relationship may have some resemblance to the vocational training aspects of certain rehabilitation programs, a context in which other courts have looked to the purpose of the work performed because “the presence of a rehabilitative element does not preclude an employment relationship.” Williams v. Strickland, 87 F.3d 1064, 1067 (9th Cir. 1996). No one cited Glatt in the district court. I understand why a pro se plaintiff would overlook Glatt, but a huge law firm? They should read this blog.

Interesting how the Second Circuit relies on an old Ninth Circuit case for this issue, all the while confining this decision to summary-order-world, which strips the case of serious precedential value. Still, it's a win for Vaughn, at least for now. The case is sent back to the district court to reexamine the case through the Glatt factors.

Tuesday, February 6, 2018

Metaphysical doubt not enough to avoid summary judgment in high speed chase ase

I have never witnessed as high-speech police chase, but I litigated a police misconduct case arising from a high-speed chase 20 years ago, when the police attacked the driver when the chase came to and end. What I learned is that the courts do not regard these drivers as sympathetic figures. They are deemed dangerous individuals who put everyone else at risk. Unfortunately for the bystanders, there is also no case when the police have to chase down the guy who initiates the chase.

The case is Mfon v. County of Dutchess, a summary order issued on January 25. Plaintiff says he suffered injuries when he was struck by a driver who was fleeing police officers. Under New York law, the driver of an authorized emergency vehicle is exempted from certain traffic laws during an emergency operation. The driver is not exempt, however, from the consequences of his reckless disregard for the safety of others. The New York Court of Appeals has said that "a police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others.” Saarinen v. Kerr, 84 N.Y.2d 494, 501 (1994).

The district court said, and the Court of Appeals (Katzmann, Kearse and Pooler) agrees that the police did not act recklessly as a matter of law, which means the jury will never hear the case.

Jonathan Besze fled from one or more police officers for approximately nine miles over a ten-minute period, for an average speed of 54 miles per hour. The chase took place after midnight, in clear weather, and on dry roads. During the chase, Besze illegally passed other vehicles, ran five red lights, and, on one occasion, drove the wrong way around a traffic circle. A passenger in Besze’s car submitted an affidavit stating that he feared for his life. The drivers encountered between 12 and 20 other cars on the road. The police officers testified, and no witness disagreed, that the drivers encountered no pedestrians. The chase ended when Besze struck Mfon’s car, causing him to sustain a cerebral concussion and traumatic brain injury.
This evidence supports the dismissal of Mfon's case, even though Mfon was an innocent bystander. Plaintiff does give it the college try. He argues that traffic conditions on the chase route were busier than recounted above. He references a traffic camera video of the intersection where the collision occurred and a video of a driver retracing the chase route two years later. This will not cut it. At best, this evidence only creates “some metaphysical doubt” about traffic conditions on the night of the chase and is insufficient to survive summary judgment. The Second Circuit cites Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), for the metaphysical doubt principle. What it really means is the creative arguments that sound great in the law office do not always make it in court because they consist of speculation, not substance. Mfon also says the chase was unusually long and that the officers failed to keep a supervisor fully apprised of the facts of chase, but these factors do not raise a triable issue of fact on recklessness where the chase took place late at night over dry, quiet streets and at moderate speeds.

Monday, February 5, 2018

Some injustices will simply go unremedied

This really bears repeating. The police are allowed to make an arrest based on the victim's say-so, even if the person under arrest turns out to be innocent. Unless the police have reason to doubt the victim's first-hand account, the police have probable cause to credit that account.

The case is McIntosh v. City of New York, a summary order decided on January 25. We had a judge in the United States Courthouse in White Plains who used to say that when the police arrested someone but then dropped the charges, the police were giving him a ticket to the courthouse. That was only partially true. You could file the suit and frame the complaint in a way that makes it look like the police lacked probable cause, but an acquittal or dismissal without a criminal trial does not mean you can successfully sue the police.

In this case, the plaintiff got into a fight with her boyfriend, who called the police and showed them her injuries from the fight. The charges against McIntosh were later dropped. McIntosh then sued the police for false arrest. The Court of Appeals (Katzmann, Pooler and Kearse) affirms the grant of summary judgment against the plaintiff. Not only were the arresting officers dispatched to the scene after the boyfriend alleged that plaintiff had attacked him, but the police saw the boyfriend's  scratches and bite marks. This was enough to arrest plaintiff for assault and harassment.

In trying to avoid summary judgment, plaintiff argued that the police should have known better than to believe the boyfriend's version of events and that they should have credited plaintiff's account instead. This argument has been rejected in prior cases. "Absent circumstances that raise doubts about the victim's veracity, the veracity of citizen complaints who are the victims of the very crime they report to the police is assumed." That language is from Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir. 1997).

Interesting footnote turns up in this case. Plaintiff argues the police fabricated evidence against her, a substantive due process violation. But manufactured evidence by itself does not give you a case, especially if the arrest is otherwise supported by probable cause. As it happens, the Court of Appeals says in a footnote, the district court said the existence of probable cause is enough to defeat the due process claim. That was incorrect, the Circuit says, as per a Second Circuit ruling, Garnett v. Undercover Officer, 838 F.3d 265 (2d Cir. 2016), which said a Section 1983 case based on an officer's false information can proceed even if the police have probable cause to arrest. But that is harmless error in this case because the trial court reached the correct result. The footnote continues with this:

although we note that there may be some tension in our jurisprudence concerning the fabrication of evidence, we need not resolve any such confusion here because McIntosh was not subjected any deprivation due to fabricated evidence. Compare, e.g., Dufort v. City of New York, 874 F.3d 338, 355 (2d Cir. 2017) (“Mere attempts to withhold or falsify evidence cannot form the basis for a § 1983 claim for a violation of the right to due process when those attempts have no impact on the conduct of a criminal trial” because “[t]he constitutional right on which [such a] claim rests is the right to have one’s case tried based on an accurate evidentiary record that has not been manipulated by the prosecution.”); with Garnett, 838 F.3d at 277 (“The setting of bail, which may make the difference between freedom and confinement pending trial, and the prosecutor’s decision to pursue charges rather than to dismiss the complaint without further action, may depend on the prosecutor’s and magistrate’s assessments of the strengths of the case, which in turn may be critically influenced by fabricated evidence. Thus, a further deprivation of liberty can result from the fabrication of evidence even if the initial arrest is lawful.”).
So we have some confusion in the Second Circuit about when you can sue over false police evidence. That conflict will be resolved some day, just not this case.