Tuesday, November 21, 2017

State Court of Appeals upholds protective vehicle search

In this case decided by the New York State Court of Appeals, the judges find that the police were allowed to conduct a limited protective search this guy's car because they reasonably thought the car had weapons.

The case is People v. Hardee, decided on November 16. This brief ruling does not tell us what happened to occasion the search. But a lengthy dissenting opinion from Judge Stein (joined by two other judges, making this a 4-3 ruling) gives more detail. According to the dissent, the police pulled over defendant in Manhattan for driving more than 20 MPH over the speed limit. When the police pulled him over, he seemed nervous and hyper and admitted there was alcohol in the car. He also looked over his shoulder a few times and did not exit the car until the police had asked him to do so two or three times. Once out of the car, he was cooperative during the frisk, but with his hands placed against an adjacent vehicle, he looked over his shoulder a few times toward his car. When the police searched the car, they found a bag inside. They found a gun inside.

The majority said this search was legal under the Fourth Amendment. The dissenters say it was not. They note that the Fourth allows the police to conduct a limited protective search if they reasonably think the car has a weapon inside, and that "it may be difficult for police officers to determine whether suspicious behavior is merely ordinary nervousness related to police encounters, indicates the presence of a weapon" or the existence of other contraband.

Judge Stein makes it clear that suspects do not have to actually retrieve a weapon before the officer may believe the car has a gun or some other contraband. But this case does not cut it, she writes, because "no facts . . . established that, at the time of the search,  defendant had displayed any behavior that would give rise to a belief that a weapon located in the vehicle presented an actual and specific danger to the safety of the officers." She adds, "even assuming that there was a reasonable basis to believe that there was a weapon in the car -- a factor which I do not concede is satisfied here -- there is no record support for a finding that a protective search was justified."

Not only did defendant not evade the police vehicle or refuse to pull over his car, Judge Stein writes, but his nervousness was not sufficient to justify a protective search, as per Court of Appeals case law. He did not reach into his car to retrieve anything, and he exited the car without any hostility. This is a lengthy dissent, particularly since the majority ruling is only a few paragraphs long. But Judge Stein can only get two judges to join her. That's not enough for a majority, so the conviction for possessing an unlawful weapon is sustained.

Monday, November 20, 2017

Inmate religious freedom claim is revived, despite purportedly "bizarre" ritual

I always take notice when a pro se inmate prevails on appeal in the Second Circuit. Lawyers who work for the government are quite skilled. But these lawyers do not always win. A good case is a good case. I don't know what to make of this case, but it returns to the trial court because the district judge erroneously ruled against the plaintiff-inmate.

The case is Grief v. Quay, a summary order issued on November 13. Plaintiff brings this action under the Religious Freedom Restoration Act, a federal statute that provides that the government cannot substantially burden the exercise of sincerely-held religious beliefs without a compelling government interest. This law even protects inmates who want to practice their religious beliefs. The public may not like this, but inmates have rights, too, though those rights are limited since they are incarcerated and the jailers have leeway in regulating what goes on in the big house.

In this case, the trial court threw out the case from the outset, ruling that plaintiff's religious beliefs were too bizarre to qualify for a case like this. The trial court said that Grief's "belief that stuffed animals are necessary for his religious practices falls within the category of beliefs that are 'so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection.'" The Second Circuit opinion does not tell us precisely what plaintiff's religious practices were, or how the stuffed animals factor into those religious practices. But the district court ruling gives us the detail:

“[h]is beliefs stem from his understanding of various religions like bhuddism [sic] and native american and also from science and science fiction as well as his life experiences.” According to Plaintiff, “[o]nce enlightenment is attained your spirit becomes part of the collective consious [sic],” and “[t]hese spirits can embody people, animals, and any objects to help guide you in meditation toward enlightenment,” but “[t]he spirit guide must be physically present to guide you during meditation.” Plaintiff’s spirit guides are animals; he “finds spiritual guidence [sic] from his stuffed animals during meditation,” but “cannot do any meaningful meditation” “[w]ithout being able to posess [sic] an animal or stuffed animal.”
The Second Circuit (Katzmann, Droney and Lohier) revives the case, as the district court's reasoning is improper. The Circuit reasons:

Whether a professed is entitled to free exercise protection under our precedents requires a determination by the "factfinder" regarding "whether the beliefs professed are, in the claimant's own scheme of things, religious." Accepting Grief's allegations as true and construing the complaint in the light most favorable to him, with the special solicitude that we afford to a pro se litigant, we conclude that the district court erred in deciding that Grief's belief regarding stuffed animals could not plausibly constitute a religious belief.

Friday, November 17, 2017

The pitfalls of appellate practice under Section 1983

A key difference between appeals in state and federal court is that in state court you can appeal any court ruling, even if the case is not even resolved. In federal court, you have to wait for the case to be resolved in its entirety before you can take an appeal. This reduces the number of federal appeals. There are exceptions to the federal rule, but those exceptions are narrow.

The case is Latreille v. Gross, a summary order decided on November 15. This is a public employee First Amendment retaliation case. Plaintiff worked for Orange County. The decision is not clear on this, but she was evidently disciplined for disclosing certain public assistance information to law enforcement. Public employees do have some speech rights, but they are limited under Garcetti v. Ceballos, 547 U.S. 410 (2006), which says employee speech is not protected under the First Amendment if the employee speaks pursuant to her job duties and does not speak as a citizen. The trial court denied the County's summary judgment motion on this issue.

Normally, when the court denies defendant's summary judgment motion, the case heads to trial or the parties settle. But in Section 1983 cases, individual defendants can invoke qualified immunity, which gets them off the hook if they did not violate clearly-established law. If the trial court denies that motion, the government defendant can take up an immediate appeal (we call it an interlocutory appeal) on the qualified immunity theory, on the basis that government defendants have the right to get out of the case at the earliest possible opportunity. The kicker, though, is that, in taking up the appeal, the government has to assume for purposes of the appeal that the plaintiff's version of events is correct and that, even under the plaintiff's side of the story, the government defendant is entitled to immunity.

This is easier said than done. Government lawyers certainly know that the rule that in order to take an interlocutory appeal, they have to assume for the time being that the plaintiff's account is true. But in writing the brief, government lawyers will still press their side of the story. The Court of Appeals is wise to this tactic, and it notes in this case that it dismisses these appeals all the time without reaching the merits because it often finds that the case is too fact-specific for appellate review at this early stage. That is what happened here. Here is how the Court of Appeals reasons it out:

Gross and Miller profess — as they must — to pursue their interlocutory appeal based on the facts alleged by Plaintiff-Appellee Nicole S. Latreille. However, upon our review of the record and despite Gross and Miller's representations to the contrary, we conclude that Gross and Miller do not proceed on this basis. We thus must dismiss their appeal for lack of appellate jurisdiction.

As one example, Gross and Miller spend considerable time arguing that Latreille's disclosures to law enforcement of public assistance records, insofar as they related to welfare fraud, were within the scope of her professional responsibilities and therefore not constitutionally protected. Based on the record, we lack jurisdiction to review this challenge. The district court determined that "[t]he parties don't dispute that Plaintiff's investigation was outside of her official job responsibilities." S.A. 15-16 (emphasis added). And there is ample record evidence that Latreille's job responsibilities did not include fraud investigation of any sort, whether it be welfare or mortgage fraud. See, e.g., J.A. 120 (noting that it is not "within [Latreille's] job description to conduct investigations into fraud"); id. at 113 (noting that the work "expanded beyond [her] job duties"); id. at 133 (noting that the information was not "pertinent" to Latreille's job); id. at 269 (noting that her "investigations and disclosures were outside the scope of her work responsibilities");id. at 552 (noting at Miller's deposition that "investigating to begin with" is not part of Latreille's duties); id. at 624 (noting in Bradshaw's complaint letter that "[t]his certainly is not part of our job description"). Some of this record evidence is even cited in Gross and Miller's own Rule 56.1(a) statement.

Thursday, November 16, 2017

No false arrest case following workplace fracas

What you need to know about false arrest lawsuits is that the police officers win far more frequently than they lose. Probable cause is a defense to any false arrest case, even if the plaintiff was acquitted at the criminal trial, and even if the police dropped the charges prior to any trial. Nor do the officers have to conduct a thorough investigation prior to making an arrest that is later abandoned by the district attorney. And if all else fails, the police officers are immune from suit if the court finds the arrest was objectively reasonable, even if was a bad arrest in hindsight.

The case is Iocovello v. City of New York, a summary order decided on November 14. Plaintiff, a supervisor at the Department of Sanitation, was arrested for assaulting King, his subordinate, after a verbal dispute. Officer Francis spoke to plaintiff and King. Both men were arrested. Eyewitnesses to the fracas prepared written statements, each of which said King attacked plaintiff. While the parties dispute whether Francis read those statements before making the arrests, that does not matter, the Court of Appeals says, because even if Francis did see the statements, she had arguable probable cause to arrest plaintiff "based on King's statement alone."

You read that right: "arguable probable cause." That is a court-made doctrine that allows police officers to invoke qualified immunity in false arrest cases. The police can arrest you based on someone else's eyewitness account, even if that account is wrong or even a lie. The police cannot make the arrest if they know the statement is unreliable or tainted in some way. But that's tough to prove. Case after case is dismissed because the police do not have to conduct a thorough investigation prior to making the arrest.

How does plaintiff get around this? He says that his injuries were worse than King's injuries, and that King is a much larger man than plaintiff. "However, a reasonable officer responding to this workplace incident may have assumed that a fight involving both Iocovello and the much larger King could logically lead to the smaller person having the greater signs of injury. There was also no need for an in-depth investigation once Officer Francis heard King's version of the events, viewed evidence that a scuffle had occurred between Iovovello and King, and had no reason to doubt the veracity of King's statements." 

Monday, November 13, 2017

Supreme Court upholds death penalty for man who does not remember committing the crime

The Supreme Court resolved this death penalty case without hearing oral argument. It decides the case on the briefs. The Court holds that the State of Alabama can apply the death penalty to a man who no longer remembers killing his victim.

The case is Dunn v. Madison, decided on November 6. The facts are not complex. More than 30 years ago, Madison killed a police officer at close range. As his execution neared, Madison claimed he was not competent to be executed because he suffered a stroke. A court-appointed psychologist said Madison "understands the exact posture of the case at this point" and knows that Alabama is seeking retribution for his criminal act. Madison's expert said that while Madison does not remember the crime, he knows what he was tried for and knows he is in prison for murder even though he believes he "never went around killing folks."

This case arises in the posture of a habeas corpus proceeding. You can get habeas relief if the federal court finds that the state court conviction violated the U.S. Constitution. But a mere constitutional violation is not enough to win the habeas petition. You have to show the state court unreasonably applied clearly-established Supreme Court precedent. In other words, if the Supreme Court has not clearly addressed the issue raised in your habeas petition, you lose, even if, upon reflection and in hindsight, it appears the state court did violate the Constitution. Madison prevailed in the Eleventh Circuit. The Supreme Court reverses the Eleventh Circuit and Madison will be executed.

In Panetti v. Quarterman (2007), the Supreme Court said "the retributive purpose of capital punishment is not well served where the prisoner's mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole." In 1986, the Court questioned the "retributive value of executing a person who has no comprehension of why he has been singled out." That case was Ford v. Wainwright. These cases are close, but no cigar. These cases did not squarely address the issue raised by Madison's case: whether "a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case."

Justices Ginsburg, Breyer and Sotomayor concur in the Court's ruling. They write that "The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court." But that is not enough for the Court to hear the case. "Appropriately presented, the issue would warrant full airing." Under the habeas corpus law that Congress enacted in 1996, which talks about clearly-established Supreme Court authority and whether the state court committed a clear constitutional violation, Madison must lose.

Thursday, November 9, 2017

Court finds no legal duty to protect crime victims

One of the real epiphanies in law school is when students learn that the law does not require people, and even the police, to affirmatively protect people. New York does not have a good samaritan law, such that if you see someone lying in the street calling for help, you are not legally required to help him. A related rule governs police conduct. We see that in this case.

The case is Torres v. Graeff, a summary order decided on November 8. In DeShaney v. Winnebago County (1989), the Supreme Court said the family of a young boy who was severely by his father could not sue the Department of Social Services for failing to protect the boy, even though DSS knew or should have known the boy was at risk, particularly since the boy was not in DSS custody.

The reasoning in DeShaney has been applied to the police. The Second Circuit has stated that "a [state actor's] failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." However, the Court has also stated that a state actor, such as the police, may be held liable to a victim of private violence under a theory of "state-created danger" if the police engaged in conduct that "affirmatively enhanced the risk of violence." That case is Okin v. Cornwall on Hudson, 577 F.3d 415 (2d Cir. 2009). Under Okin, the police may be found to have enhanced the risk of violence against someone "by providing the aggressor with assurances that he would be permitted to act with impunity." A plaintiff can allege the police had implicitly communicated with the violent actor through a showing of "repeated, sustained inaction by officers in the face of potential acts of violence."

This case does not satisfy that standard. There is no sustained inaction here. Plaintiff alleges that the police responded to a single report that a mentally-ill man was acting violently by placing him under custodial arrest under New York Mental Hygiene Law section 9.41. They also utilized force to handcuff and detain the man in the back of a police car, removing him from the premises and taking to the hospital for a mental health evaluation and instructing hospital staff to contact the police at a specified time before releasing him. The Court (Jacobs, Lynch and Crotty [D.J.]) writes:

The fact that the officers asked to be contacted at the conclusion of the medical evaluation rather than remain physically present during it cannot be read as having transformed their affirmative “interference” with Bumbolo’s violence and their unwaveringly adversarial posture toward him throughout the interdiction into a “plainly transmitted [] message that what he did was permissible and would not cause him problems with authorities.” The complaint therefore fails to state a constitutional claim against the officers. On the facts pled, the tragedy that ensued is simply not
one for which the officers may be held liable under the Due Process Clause.

Tuesday, November 7, 2017

Pro se plaintiff wins due process and Title VII appeal

Due process is enshrined in the Constitution, but the courts have made it difficult to sue over due process violations. In this case, the pro se plaintiff wins her appeal, reinstating her due process claim against the City of New York.

The case is Xu v. City of New York, a summary order decided on November 2. We don't know much about the due process claim, but the Second Circuit notes that if your due process rights are violated, the usual procedure is to bring an Article 78 following the property or liberty deprivation. That rule applies when a relatively low-level government employee shafts you through an "random or unauthorized act[]." In those cases, the Article 78 procedure is the due process. That rule does not apply, however, when the deprivation was perpetrated by "officials with final authority over significant matters, which contravene the requirements of a written municipal code, and can constitute established state procedure."

Since plaintiff "was improperly fired without a postdeprivation hearing because Municipal Defendants wrongly believed her to be a probationary employee who was not entitled to such a hearing," and plaintiff claims a high-level official orchestrated her termination, plaintiff has a due process claim. Plaintiff does not have to worry about the CPLR. She can avail herself of the beauties of the Federal Rules of Civil Procedure.

Plaintiff also has a discrimination claim under Title VII. She says a younger white male was treated more favorably on the basis of race. The disparate treatment included plaintiff receiving negative feedback while the white comparator got positive feedback. These and other allegations of disparate treatment allow plaintiff's case to proceed. Since this was a Rule 12 dismissal, mind you, the parties must pursue discovery. No doubt, the City will move for summary judgment once discovery is complete. Hey, why not? Government lawyers love moving for summary judgment.