Tuesday, September 16, 2014

Court of Appeals wants to further cut attorneys' fees in student speech case

Victorious plaintiffs in civil rights case are entitled to attorneys' fees from the losing defendants. This allows plaintiffs without money to hire a lawyer who can pursue the case in the understanding that the attorney will recover fees for his successful effort. The process is not always so simple, however.

The case is Husain v. Springer, a summary order decided on August 29. This case was filed in 1997. CUNY students -- editors of the student newspaper -- sued the college under the First Amendment after defendants retaliated against them for their editorial content. The retaliation took the form of the College's decision to void student government elections because the newspaper had endorsed student candidates in violation of College rules. The Second Circuit's decision in 2007 was so interesting and controversial that it prompted me to start writing this blog in the first instance. Interesting because the 2-1 majority said that voiding the student government election results was a form of retaliation, and controversial because Judge Jacobs dissented from the ruling and said the case was so trivial and silly that he did not even bother to read the majority decision.

Since plaintiffs won the case, their lawyer moved for attorneys' fees. What complicates matters is that plaintiffs each won a dollar in damages. In some civil rights cases, a low damages award disentitles the plaintiff from winning any attorneys' fees. But First Amendment cases often do not result in large damages awards, so fees are available if the plaintiffs as a practical matter did  not merely win a nominal victory. Here, plaintiffs did not win a trivial victory because they defendants' conduct chilled plaintiffs' speech, and they agreed to repeal the offending student election rules that prompted plaintiffs to bring the lawsuit in the first instance. So the district court properly awarded plaintiffs their attorneys' fees.

What the district court got wrong, the Second Circuit (Jacobs, Calabresi and Livingston) says, was awarding plaintiffs approximately $233,000 in fees and costs. Plaintiffs requested more than $800,000 in fees, so the actual award was much less than what they wanted. The Court of Appeals says plaintiffs should recover even less than $233,000 because (1) plaintiffs sought but did not receive any punitive damages against defendants, (2) they abandoned many claims in the course of the litigation and (3) they lost many of the claims on the merits. Also, the case established no new principle of law, calling into question the huge number of hours plaintiffs' lawyer spent on the case. For these reasons, the case is sent back to the district court to reduce the fees award even further.

Friday, September 12, 2014

Pro se excessive force victim wins appeal

It is too early in the case to know if any of this is true, but the plaintiff alleges that police officers yanked his arms without cause, smashed his face into the ground and stood on his hands when he was handcuffed. Other officers watched it happen but did not intervene. The plaintiff sued the officers and the trial court dismissed the case. The Court of Appeals revives the excessive force claim.

The case is Simcoe v. Gray, a summary order decided on August 27. Simcoe represents himself on appeal, by the way, and he appears to be in jail at the moment, which makes his appellate victory even more impressive. While the district court granted the officers qualified immunity upon finding that plaintiff resisted arrest, the Court of Appeals (Walker, Wesley and Livingston) says this was faulty reasoning. The trial court "did not address Simcoe's statements that defendants assaulted him after he was handcuffed." Plaintiff also testified that he did not resist arrest. That testimony is enough to create an issue of fact for trial.

Plaintiff also did enough legal research in the prison law library to learn that you can sue a police officer for failure to intervene when a fellow officer is breaking the law. That claim survives as well. Officers may look out for each other, but they cannot look the other way when someone is beating up someone for no reason. If there is a realistic opportunity for the officer to intervene, he must do so.

What reads like a routine decision gets more interesting when we see that defendants argue that they deserve summary judgment because plaintiff testified at his criminal trial that he remembered being handcuffed and Tasered "and that was about it." He also testified that he was "out of his mind" and lost control that evening. He also did not mention excessive force in an apology letter he wrote to the police department. These are credibility arguments, not conclusive facts that would justify summary judgment for the officers. At best, the criminal trial testimony was ambiguous and it "was not dispositive because it was not necessary to the verdict." The "lost control" testimony is also too ambiguous to establish as a matter of law that the police had no choice but to use force. While he did not mention excessive force in the apology letter, that is not sufficiently contradictory to throw out his civil suit.

Wednesday, September 10, 2014

Habeas petition granted because someone else may have pulled the trigger

The habeas corpus law that Congress enacted in the mid-1990s makes it harder to challenge the constitutionality of a state court criminal conviction. Even if a federal court finds in hindsight that a conviction violated constitutional standards, the inmate will not win the habeas petition unless the state court violated clearly-established constitutional law. In this case, the inmate overcomes that hurdle.

The case is Alvarez v. Ercole, decided on August 18. Alvarez was convicted of manslaughter resulting from a drive-by shooting in The Bronx in which a drug-dealer died. The criminal case was not open-shut: eyewitness accounts were sketchy. But the police had other leads on who might have pulled the trigger. The police did not develop those leads, and Alvarez's lawyer tried to prove at the criminal trial that the police investigation was shoddy and that someone else was guilty of the crime. The criminal court judge prevented counsel from exploring this defense at trial, ruling that evidence of other leads into the killing was hearsay.

The Court of Appeals (Calabresi, Livingston and Jacobs) disagrees and finds that the habeas petition should have been granted. Alvarez had a clearly-established right to effectively cross-examine the detective whose notes showed that he possessed the names of other possible suspects. As the Second Circuit puts it, the trial court's restriction on cross-examining the detective prevented Alvarez from pursing his best defense: "that the police investigation into the murder was flawed and had improperly disregarded a promising alternate suspect." This was especially damaging to Alvarez's case because the prosecutor told the jury in summation that the police did a good job and that defendant was merely speculating about the police investigation.

Habeas petitions are hard to win, in part, because of the legal standard that Congress adopted 20 years ago when it amended the habeas laws after Republicans took over Congress. I recall that the argument in support of deferring to state-court judgments was that federal courts were infringing on state's rights in second-guessing criminal convictions. The solution was to require federal courts to defer to state court judgments. Even if the conviction is found to be unconstitutional, the conviction stands unless the state court unreasonably applied Supreme Court authority. As I see it, this creates a two-tiered constitutional system. State courts are allowed to get it wrong (even on constitutional matters) so long as they don't totally blow it. As the Second Circuit notes, “[A]n unreasonable application of [Supreme Court law] must be objectively unreasonable, [and] not merely wrong.” In this case, Alvarez still wins the habeas action despite these stringent standards.

Monday, September 8, 2014

Circuit says Erie County jail compliance records are open to the public

The U.S. Department of Justice sued Erie County, New York, because its jails were unconstitutional rat's nests. When that case settled, the parties agreed that periodic compliance reports would be filed with the court to ensure that the County lived up to its end of the deal. The New York Civil Liberties Union seeks  access to those compliance reports. The district court said no. The Court of Appeals says yes. NYCLU gets the reports.

The case is United States v. County of Erie, decided on August 18. Judges love First Amendment cases, and this is a classic First Amendment case. The principal question, though is more mundane: are the reports judicial documents and, if so, does the public have the right to them? The Court of Appeals finds they are judicial documents because they play a significant role in allowing the trial court  to know if the County is in compliance with its obligations under the settlement.

We then apply the usual balancing test to decide if the pubic has a right to review these documents. "To determine whether this First Amendment right attaches in circumstances such as the one before us, we look, first, to whether 'experience and logic' support making the document available to the public. That is, we consider (a) whether the documents 'have historically been open to the press and general public' (experience) and (b) whether 'public access plays a significant positive role in the functioning of the particular process in question' (logic). Once a First Amendment right of access to judicial documents is found, the documents 'may be sealed [only] if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.' And, '[b]road and general findings by the trial court . . . are not sufficient to justify closure.'”

The Second Circuit (Calabresi, Parker and Lynch) says NYCLU can review the reports. We know the Court will rule this way even before it applies the complicated balancing test above. That's because the Court prefaces the decision with language extolling the virtues of public access to court records. It says:

The notion that the public should have access to the proceedings and documents of courts is integral to our system of government. To ensure that ours is indeed a government of the people, by the people, and for the people, it is essential that the people themselves have the ability to learn of, monitor, and respond to the actions of their representatives and their representative institutions. This principle, as it applies to courts, has a long history.
With language like this, do you really think the Second Circuit will allow the documents to remain under seal? The County does not offer compelling reasons to deny public access to these records. The County "posits a supervening need for frank, and hence confidential, discussions among the parties. In doing so, it analogizes this case to ones involving settlement negotiations. But that argument ignores the crucial fact that, in the case before us, a settlement has already been reached." Moreover, the Court says, the issues raised by these documents raise matters of high public interest. "As the Supreme Court succinctly put it, the 'conditions in this Nation’s prisons are a matter that is both newsworthy and of great importance.'”

Thursday, September 4, 2014

NYC rule against Orthodox circumcision ritual may violate Free Exercise Clause

This case acquaints us with a religious ritual that few of us know about. During the circumcision ceremony, some Orthodox Jews "perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b' peh." Since it determined that this ritual poses a health risk (the spread of herpes simplex virus), New York City issued a regulation that prohibits anyone from performing this ritual without obtaining written permission from the parents. The consent form says that New York City "advises parents that direct oral suction should not be performed." That regulation may be stricken from the books.

The case is Central Rabbinical Congress v. New York City Department of Health & Mental Hygiene, decided on August 15. The religious plaintiffs sought a preliminary injunction against enforcement of this regulation, claiming it constitutes coerced speech and also violates their freedom of religion. The district court denied the motion but, according to the Second Circuit (Livingston, Lohier and Carney), that court applied the wrong legal standard. Since this regulation targets a specific religious practice, the district court must evaluate its constitutionality under the "strict scrutiny" test, which is usually the death-knell in reviewing statutes and regulations.

The decision provides an interesting summary of the ritual. It also tells us that most adults have some form of Herpes Simplex Virus, though we do not show any symptoms. But HSV in newborns can be serious and life-threatening. The virus can be passed through oral contact with an open wound. Plaintiffs say there is no DNA proof that HSV has ever been transmitted through this ritual.

Under the Free Exercise Clause of the Constitution (which provides for "freedom of religion"), the government cannot pass a law or regulation that targets a religion or religious conduct. The Court of Appeals finds that the regulation here does in fact target such conduct, as it "purposefully singles out religious conduct performed by a subset of Orthodox Jews. And the Regulation applies exclusively to the religious conduct performed by this religious group." Even if the rule is facially neutral, it is not neutral in operation. "The religious ritual it regulates is the only conduct subject to the Regulation," the Court says. In other words, the regulation does not apply to any other religious practice.

This means that the government cannot defend the rule simply by showing a rational, or reasonable, basis for it. Under the rational basis test, the government usually wins by articulating any reason that is not totally off-the-wall. In this case, the government has to satisfy the "strict scrutiny" test, which is a much narrower window to crawl through. The Court of Appeals will let the district court worry about whether the regulation satisfies that test.

Wednesday, September 3, 2014

Dodd-Frank does not apply overseas

Under the Dodd-Frank Act, employers cannot retaliate against employees who blow the whistle on certain improprieties. This case examines the territorial reach of that statute.

The case is Meng-Lin v. Siemens AG, decided on August 14. Plaintiff worked as a compliance officer in the health care division of Siemens China, Ltd. The New York connection to this firm was that Siemens China is a wholly owned subsidiary of Siemens AG, a German corporation with shares listed on the New York Stock Exchange. Plaintiff was shown the door after he reported that "Siemens employees were indirectly making improper payments to officials in North Korea and China in connection with the sale of medical equipment in those countries." Plaintiff sued in federal court to challenge his termination, but the case was dismissed under Rule 12. The Court of Appeals affirms, and the case is over.

The Court of Appeals (Lynch, Raggi and Lohier) says that what happened to plaintiff was a foreign event, not a domestic event, and that Dodd-Frank therefore does not provide him any redress. We presume that laws passed by Congress apply domestically. The Court quickly finds that plaintiff's retaliation was not a domestic event. Everything happened abroad. Plaintiff is a resident of Taiwan and reported the corruption to superiors in China and Germany. Superiors in China and/or Germany decided to fire him. The Court says it doesn't matter that the company had a class of securities listed on New York Stock Exchange.

The question then becomes whether plaintiff may still invoke the statute. He cannot. "There is absolutely nothing in the [statute], or in the legislative history of the Dodd-Frank Act, that suggests that Congress intended the antiretaliation provision to regulate the relationships between foreign employers and their foreign employees working outside the United States." While plaintiff's lawyer offers various arguments to get around this, the Court is not buying it, prefacing its analysis as follows: "Liu's effort to cobble together indirect, circumstantial suggestions of extraterritorial application faces powerful headwinds." 

Thursday, August 28, 2014

Botched SWAT raid produces pro-plaintiff qualified immunity ruling

This case involves a SWAT raid gone awry, or as the Court of Appeals puts it, a "botched" SWAT raid. The victims of this raid sued the police. The district court allowed some of the claims to proceed to trial, but defendants take up an immediate appeal. For the most part, the Court of Appeals rejects defendants' arguments and says the case must proceed to trial

The case is Terebesi v. Torreso, decided on August 21. The police got a search warrant for Terebesi's home after they had reason to believe he had stashed away a small amount of drugs. The SWAT team ram-jammed their way into the house, using stun-grenades. The raid did not go quite as planned. An occupant of the house was accidentally killed, and the stun-grenades started a fire in the house. The police found a small amount of crack cocaine, but no weapons were found.

Plaintiff sues for excessive force. Since this claim arises from Section 1983 (the federal civil rights statute), the police officers can get off the hook on qualified immunity grounds. This immunity gives the police the benefit of the doubt if they acted objectively reasonably at the time of the incident or if the law at the time was not clearly-established. The Second Circuit (Sack, Chin and Droney) provides a tutorial on qualified immunity in explaining why the case can go to trial.

First, there is no clearly-established right under the Fourth Amendment to be free from a tactical SWAT raid to execute a search warrant. If the cases are not clear in this area, the Court will not expect the police to be legal scholars and anticipate future court rulings that might frown upon the practice. That is what law professors are for. So that claim dies.

The other claims survive, however. The Court says the case law has held over the years that officers who authorize or direct a raid that employs the use of force to effect a search or seizure must comply with Fourth Amendment standards. This clearly-established body of law puts the officers on notice that they could be sued for a bad raid plan that violates the Constitution.

As for the stun-grenades (which can cause fires and "detonate with a blinding flash of light and deafening explosion ... to temporarily stun people in a targeted building" until law enforcement can get inside), the Court says that "the principles governing police use of force [as set forth by Supreme Court precedent) must be applied to claims challenging the use of the distraction device when executing a search warrant." The use of all sorts of police weaponry can violate clearly-established law even if no case in particular address a particular weapon. As the Court reminds us, you do not need a case that is precisely on point to show that the law governing that activity violates clearly-established law. Since this was not a high-risk search -- but a more routine one -- involving a search for a small amount of drugs that the occupant had for personal use, the jury must decide whether the use of the stun-grenades was reasonable at the time, particularly since the officers had no reason to know that plaintiff had a propensity toward violence.

Qualified immunity is also denied on other claims,including whether it was reasonable for the officers to enter the house without knocking and announcing. The jury must decide whether this tactic was reasonable in light of evidence that defendants knew the drugs were for the plaintiff's personal use and that he was not guilty of any violent or grave offense.

If you handle Section 1983 cases, this is the case for you. Enjoy the thorough summary of qualified immunity principles and some new language on police techniques that can give rise to litigation. One small point of interest to qualified immunity junkies is the Court's observation that clearly-established law can be determined by reviewing not just Supreme Court and Second Circuit cases but also rulings from other federal appellate courts.