Friday, September 4, 2015

Prisoner has claim for exposure to unsanitary conditions in jail

This case represents sort of a treatise on the rights of inmates. It also reminds is about the good, the bad and the ugly inside New York jails.

The case is Willey v. Kirkpatrick, decided on August 28. Willey is incarcerated at Wende Correctional Facility. He says he was punished by correction officers after he refused to provide false testimony about another inmate. The officers exposed plaintiff to unsanitary conditions of confinement. As the Court of Appeals puts it, "the most grotesque exposure Willey alleges is that officers placed him in solitary confinement with a Plexiglas shield restricting the airflow to his small cell and then incapacitated the toilet, so that he was reduced to breathing a miasma of his own accumulating waste." He was also detained in an observation cell whose walls and mattresses were smeared with feces and stained with urine. The officers also filed false misbehavior reports against him in retaliation for his refusal to rat out another inmate. The Second Circuit (Katzmann, Pooler and Carney) reinstates plaintiff's claims, as follows:

1. In excluding plaintiff from an in-house disciplinary hearing, the officers violated the Due Process Clause because he was unable to defend himself and call witnesses on his behalf.

2. The Court does not determine whether plaintiff's refusal to falsely implicate a fellow inmate was constititionally-protected speech under the First Amendment. The parties did not adequately brief this issue on appeal. The district court must take up this issue. The Circuit notes that Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), a case I argued, might be relevant. In that case, the Court of Appeals said a police officer had the right under the First Amendment to refuse to file a false report at his superiors' direction.

3. The nasty conditions of confinement violate the Eighth Amendment. While prisons are not required to be comfortable, they "must provide humane conditions of confinement." Reviewing cases from around the country on this issue, the Court says that exposing plaintiff to human waste for at least seven days violates the Constitution. 

4. As for the other claims, plaintiff -- who says the bread was stale and the cabbage usually rotten --states a claim that his inedible food constituted a constitutional violation.The district court must also consider whether the officers' theft of plaintiff's legal documents in retaliation for his refusal to falsely implicate another inmate violated the constitutional right of access to the courts.

Friday, August 28, 2015

Tick-borne disease case heads to Connecticut Supreme Court

This is a sad case about a schoolgirl who went on a school-organized trip to China and contracted tick-borne encephalitis. Her family sued the school for negligence, and the jury awarded them $41.5 million in damages, including $31.5 million in non-economic damages. The verdict is vacated for now so that the Connecticut Supreme Court can decide if we wants these kinds of lawsuits to proceed.

The case is Munn v. The Hotchkiss School, decided on August 3. The school did not warn Cara Munn or her family that you can get this disease in China. Cara and her friends went off the beaten path while exploring China and got bitten by a tick. Because of the illness, Cara lost her ability to speak and has difficulty controlling her facial muscles, causing her to drool. She has also lost some cognitive function.

The Court of Appeals (Walker, Lynch and Lohier) thinks the Connecticut Supreme Court should review this case before the Second Circuit issues a final ruling. Here's why. Any first year law student will tell you there are four basic elements to any tort claim: duty, breach, causation and harm. In plain English, if you breach a legal duty to someone and cause foreseeable injury that causes damages, you are liable for a tort. If Freddie is too lazy to shovel his sidewalk after a snowstorm and someone slips and falls and breaks his leg, then Freddie is liable because he knew damn well that any icy sidewalk could foreseeably cause that result.

The Second Circuit thinks the School had a duty to warn the Munns about the risk that Cara might get the disease if she got bitten by the tick. But that does not end the inquiry. Under Connecticut law, we also ask if "on the basis of a public policy analysis, ... whether the defendant's responsibility for its negligent conduct should extend to the consequences or particular plaintiff in this case." Put another way, is it in society's interests to allow the Munns to recover damages for negligence like this? Sadly for the Munns, it may not be. The Court says:

Courts place a high value on recreational activities for children, even if they sometimes create safety concerns. Although the present case does not involve competitive sports, it also implicates important questions of public policy because of the benefits of educational trips for children.


[A]s Hotchkiss and several amici point out, it is unreasonable to expect a trip organizer to warn students about or protect them against every danger. Field trips are intended to expose children to situations outside of their comfort zones and of the organizers’ control. Such trips thus naturally entail a certain level of risk. Here, the risk of contracting tick‐borne encephalitis was undeniably remote. No American had ever before contracted TBE in China. Thus, although travelers may generally expect a school to warn about or protect against dangers, including serious insect‐borne diseases, no one could have expected that Munn would contract TBE.

Second, international trips and outdoor activities, while sometimes posing substantial health and safety risks, offer important benefits to their participants. The public benefits of international education and student exchanges are written into Connecticut statutory law.
As you can see, there are competing societal values at stake here. If we allow parents to sue a school for this kind of negligence, it may reduce the number of educational excursions that would normally benefit children. And so on. As these issues are unique to Connecticut law, the Second Circuit sends to case to the Connecticut Supreme Court for them to work it out. When they do, the case returns to the Court of Appeals for a final ruling.

Wednesday, August 26, 2015

No expert costs available under the Fair Labor Standards Act

Many labor and employment plaintiffs have no money to pay their lawyers. The law recognizes this, allowing plaintiffs' lawyers to recover their attorneys' fees if they win the case. Once the plaintiff wins, her lawyer files a motion with the court detailing the time she spent on the case and her hourly rate. Counsel may also recover out-of-pocket costs. But what about expert witness fees?

The case is Gortat v. Capala Brothers, decided on July 29. Plaintiffs won their FLSA overtime claim against defendants, recovering nearly $300,000 in damages. Their lawyer moved for attorneys' fees and costs, including expert witness fees in the amount of $10,425. Plaintiffs got over $500,000 in attorneys fees and another $68,000 in out-of-pocket costs, making me wonder why their tried to recover "only" $10,000 in expert fees on appeal. Probably because defendants appealed from the judgment also and plaintiffs filed a cross-appeal because ... why not?

The Court of Appeals (Calabresi, Straub and Livingston) notes that "The Supreme Court has made clear on multiple occasions that, absent explicit statutory authorization, a district court may not award reimbursement for expert fees." Some civil rights statutes authorize the recovery of these fees, and some do not. This is because "costs" does not mean "expert fees," even though the uninitiated may think that "costs" means any financial layout, which would seem to include expert costs. They do not. Congress has to specifically authorize them for plaintiff's counsel to recover them.

Is there any reason why Congress would authorize the recovery of expert costs under some statutes and not others? Is Congress even thinking about this when it drafts a statute? In other words, is it by design that some laws provide for this recovery while others do not? I cannot answer these questions. 

As the FLSA does not explicitly authorize the recovery of expert costs, plaintiff in this case cannot recover them. The case is remanded for the district court to determine if expert costs are recoverable under the state labor laws. 

Monday, August 24, 2015

Videotaped excessive force claim goes to jury

This my favorite Section 1983 case of the year. A divided Court of Appeals holds that a jury must determine whether an Occupy Wall Street protester has an excessive force claim against two police officers who pepper-sprayed her after she refused to give her name and resisted arrest outside a Starbucks at 5:00 in the morning.

The case is Brown v. City of New York. Brown tried to enter Starbucks because she had to go to the bathroom. The Starbucks was closed, and an employee called the police because a noisy crowd, bladders a-bursting, was pounding on the door. When the officers arrived, they asked plaintiff for her identification without explanation, which she declined to provide. The officers then arrested Brown, and after she resisted the handcuffs, they took her to the ground, where she continued to resist until the officers pepper-sprayed her twice. At that point, she was cuffed and taken to the police station.

I think that excessive force claims are the most shocking civil rights violations, because true excessive force means the police are abusing their authority in public and injuring a civilian without good reason. But that is also why these cases are hard to win; we all personally know police officers and cannot imagine them using excessive force, and most of us think that most officers are trying to do a good job. Here is the legal standard for evaluating an excessive force claim, stemming from the Supreme Court's Graham v. Conner decision:

Determining excessiveness requires "a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." This balancing, the Court noted, "requires careful attention to the facts and circumstances of each particular case, including" the following three factors:

1. "[T]he severity of the crime at issue,"

2. "whether the suspect poses an immediate threat to the safety of the officers or others," and

3. "whether he is actively resisting arrest or attempting to evade arrest by flight."
And, ... the "'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. The Court also made clear that the standard is one of objective reasonableness, and the officer's state of mind, whether evil or benign, is not relevant.
This "totality of the circumstances" test means that many excessive force claims go to trial, as the court cannot resolve these questions on a cold record without live testimony. Juries are better able to sift through these issues than a judge sitting in his chambers. In this case, though, it's not just deposition testimony that tells the story but video footage. The Court of Appeals (Newman and Calabresi) says the case goes to trial. The offense for which the officers initially arrested Brown (disorderly conduct, for the loud banging on the Starbucks door) was relatively minor. She did not try to run away or threaten the officers. While the videotape shows Brown was in fact resisting arrest, the Second Circuit's reasoning is interesting:

The officers could be entitled to a summary judgment only if there existed a per se rule that an arrestee’s refusal to submit to the easy application of handcuffs always permitted police officers to use substantial force, including taking a person to the ground and incapacitating her with pepper stray, to accomplish handcuffing. We know of no such rule. Indeed, by focusing only on resistance to the arrest, such a rule would disregard the three-factor analysis that the Supreme Court required in Graham. Even resistance sufficient to result in conviction for resisting arrest does not preclude a finding of “excessive force in effectuating the arrest.”


Here, on the undisputed facts, even shaded with the officers’ account of the episode, no reason appears why, with Brown standing, each officer could not have simply held one of her arms, brought it behind her, and put handcuffs on her wrists. Or they could have simply surrounded her, at least for a few moments, making it clear that she could not leave until she submitted to handcuffing. We do not mean to imply that the availability of a less aggressive way of accomplishing an arrest necessarily means that the technique that was used is thereby shown to have been excessive. Police officers must be entitled to make a reasonable selection among alternative techniques for making an arrest. But when the amount of force used by two police officers involves taking a 120-pound woman to the ground and twice spraying her directly in the face with pepper spray, the availability of a much less aggressive technique is at least relevant to making the ultimate determination of whether excessive force was used. The assessment of a jury is needed in this case.
What makes the case even more interesting is that Judge Jacobs' lengthy dissent calls out the majority for being too soft on Brown and too critical of the police for not subduing her in other ways. Jacobs posts three videos online so we can all see how she actively resisted arrest. Apart from making fun of Occupy Wall Street protesters, endorsing the officers' sarcastic comments to Brown when she asked where she could go to the bathroom (they told her to "piss in the park") and accusing Borwn (through post-arrest text messages) of "claiming the glamour of having spent a night in jail after having resisting arrest," Judge Jacobs revives his oft-repeated claim that cases like this will place the defending officers' personal finances at risk and potentially force them to spend their childrens' college funds to pay out the liability judgment. In addition, Judge Jacobs provides a blow-by-blow account of Brown's interaction with the officers. Judge Jacobs concludes with this:

The only excessive features of this case are the elaborate constitutionalization of the routine arrest of a disorderly individual, the unfair attack on the professional reputation of two NYPD officers, the absurd waste of judicial time that has ensued and will follow on remand, and the imposition on the valuable time of jurors.

 The majority objects to Judge Jacobs' dissent in a couple of ways. First, as for the "piss in the park" comments, the majority notes that police officers are supposed to be courteous, not sarcastic, in dealing with pedestrians. More importantly, the majority takes issue with the idea that police officers could be ruined financially from a nonsense settlement or jury verdict. Judge Newman writes:

The dissent speculates, without any support in the record, that, in the event that a jury finds the police officers liable, the judgment will be paid out of their children’s college funds. For support, the author of the dissent cites only his own previous speculation, see Gonzalez v. City of Schenectady, 728 F.3d 149, 162 (2d Cir. 2013). A far more likely speculation is that a payment, if any, will be made by the City after a settlement. See, e.g., “New York City Settles With 6 Occupy Wall Street Protesters Pepper-Sprayed by the Police,” New York Times, July 6, 2015. And, if a jury were to hold the officers liable for damages, payment is almost certainly going to be made by the City by way of indemnification or by the police union. See Richard Emery & Illan Margalit Maazel, Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution, 28 Fordham Urban L. J. 587 n. 2 (2000). A study for the six years from 2006 to 2011 revealed that $348,274,595.81 was awarded in civil rights settlements and judgments against New York City police officers, of which $114,000 (0.03 percent) was required to be paid by police officers, and the study does not indicate whether some or all of even this amount was paid by the police union. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 913, 962 (2014).  
A few other thoughts. The videos are interesting not only because we can see what happened, but because they were probably made by civilians who decided to use their iPhones to record the incident. You can see a few of them standing with their cell phones out. Part of the video breaks away to someone who provides a brief summary of what happened before the cameras began rolling. One bystander is telling the officers how to do their jobs. Others are loudly objecting to the officers' actions ("What's wrong with you people?"). Had they kept it up, some of these meddlers could have been arrested for Obstructing Governmetnal Administration. And we also see that the sidewalk outside Starbucks is totally disgusting with cigarette butts and other garbage all over, some of it perilously close to Brown's face as the officers held her down in trying to place handcuffs on her. 

Friday, August 21, 2015

Bergstein & Ullrich prevail in civil rights case against Orange County
 Judge: County investigators violated Constitution
5-year-old questioned without parents' consent

By Gittel Evangelist
Times Herald-Record

Aug. 21, 2015
  • A federal judge ruled Wednesday that Orange County violated the U.S. Constitution when it questioned a 5-year-old girl about secondhand child-abuse allegations without her parents’ consent.
    Judge Sidney H. Stein of the Southern District of New York in Manhattan granted the girl’s motion for summary judgment against the county. The case will go to trial in January to determine damages, said Stephen Bergstein of the law firm of Bergstein & Ullrich in Chester, which represents the plaintiffs.
    Stein also ruled the jury must determine whether the Goshen School District violated the Constitution when it allowed county caseworkers to question the girl at her school.
    The lawsuit, filed in 2010 by the girl and her parents, Marie Condoluci and Steven Phillips, arose when a state hotline received a call from Pastor Robin J. Hogle of Hopewell Presbyterian Church in Thompson Ridge, who said parishioner Thresa Falletta had concerns the parents were sexually abusing their daughter. Hogle cited a photo of the child wearing a mermaid costume, seen by Falletta on the family’s refrigerator, according to the suit. Falletta previously worked as a babysitter for the family, according to the lawsuit.
    On the basis of this account, the state hotline transmitted the report to Orange County Child Protective Services. CPS then assigned the case to the Orange County Child Abuse Investigation Unit.
    While the investigators did not believe the girl was in imminent danger, they questioned her in the assistant principal’s office at her school, without notifying the parents, Bergstein said. Investigators then searched the parents’ home without their consent.
    “The investigation into these flimsy allegations was intrusive and totally inappropriate,” Bergstein said. “The county had no basis to embarrass and humiliate the family by pursuing these allegations, and it went over the line when it took the child out of class in order to ask her embarrassing questions about child abuse without her parents’ knowledge.”
    Orange County spokesman Justin Rodriguez said, “The county will review its protocol based on the court’s decision. We strive to protect all children who need our services. Our Social Services Department will continue to act in the best interest of all children they serve.”

Thursday, August 20, 2015

Theft of services/false arrest case goes to trial

False arrest cases are hard to win. The police can detain you for any reason so long as they have probable cause. Probable cause is not hard to establish. If the police have any objective basis to think you are violating any law, then the police have probable cause, and your lawsuit goes nowhere. This lawsuit goes somewhere.

The case is Simpson v. City of New York, decided on July 15. Simpson was about to board a city bus when the driver closed off the front entrance and made everyone enter through the rear door. Officer Nelson was on the scene and thought Simpson was cute, so he hit on her. She rebuffed his advances. He then charged her with theft of services, accusing her of trying to get on the bus without swiping her MetroCard. The district court granted the officer's motion for summary judgment. The Court of Appeals (Hall, Lynch and Carney) reverses, finding that Simpson has a case.

This case reminds us that, on a summary judgment motion filed by the defendant, we have to view the evidence in the light most favorable to the plaintiff. The district court failed to do that. It simply said the officer had probable cause to arrest plaintiff for theft of services because "'he saw [Ms. Simpson] board a bus through the rear doors, which were marked ‘no entry,’ without paying the fare,' concluding that this undisputed fact was 'sufficient to provide [Officer] Nelson with the belief that plaintiff intended to obtain bus
service without payment of the lawful charge.'” But there was more to the story, at least from plaintiff's perspective, which the district court overlooked. The Court of Appeals says "there is a genuine issue for a jury as to whether a reasonable officer in Officer Nelson’s position could have had reasonable grounds to believe that she intended to commit, or was committing, theft of services." In particular:

First, Officer Nelson was aware of the problems with the mechanical lift which blocked the front entrance to the bus, given that he was only an “arm’s length” from Ms. Simpson while she waited to board the bus. Next, by the same token, Officer Nelson was in a position easily to hear the bus driver direct passengers to “Go around, go around” to the back of the bus and also to witness the bus driver open the back doors. In fact, viewing the facts as we must, Officer Nelson would have had to have been visually and aurally impaired to miss this chain of events. Finally, according to Ms. Simpson, Officer Nelson observed Ms. Simpson board the bus and wait in line to pay her fare before arresting her.
You know the old saying, "There are two sides to every story"? This case illustrates that. The officer said he saw plaintiff use the back door when the other passengers boarded through the front door, raising questions about whether the front door really was inaccessible. That may be, but since plaintiff has a different account, summary judgment is improper because if the jury credits her account, she wins the case.

Tuesday, August 18, 2015

Police beating case goes to trial.

Excessive force claims are all around us. They are also in the news. Some of the claims have merit. We let the juries sort it out unless there is no way the plaintiff can win, and the trial court grants summary judgment. In this case, the trial court threw out the case. The Court of Appeals brings it back.

The case is Rogoz v. City of Hartford, decided on August 10. Plaintiff brought $50 worth of heroin and drove off when an unmarked police car approached and an unidentified man got out and walked toward him. Plaintiff drove away at a high rate of speed, not realizing the police were after him. When the police got to him, he complied and was made to lay on the ground with his hands behind his back. While he did not resist, the police fractured of of his ribs and his spine in two places.

Sounds like a great case, right? It may not be a great case, actually. The evidence set forth above is plaintiff's side of the story. The police have a different account, claiming plaintiff knew he was fleeing the police. Their lawyers moved for summary judgment, claiming the evidence compels only one conclusion and that plaintiff cannot win. The district court granted the motion. The Court of Appeals reverses and sends the case back for trial.

Along the way, the Court of Appeals (Kearse, Parker and Wesley) provides a thorough discussion of what summary judgment means. The Court does not break new ground, but it does compile from other cases all the language that makes it clear that trial courts (a) cannot weigh the evidence; (b) resolve credibility disputes or (c) view the evidence from the defendant's point of view. The Court also reminds us that excessive force claim are often fact-specific and do not lend themselves to summary judgment.

The Court also notes that defendants conceded many facts that would help plaintiff win the case:

the police officer defendants expressed in their brief on appeal "no material disagreements" (Watson brief on appeal at 5) with Rogoz's assertions that, before Watson broke his back and rib, Rogoz had "complied with each of the officers' commands" and had "not resist[ed] in any way" (Rogoz brief on appeal at 6). Based on these facts a jury could easily infer that Rogoz--out of his car, prone on the ground, and compliant when Watson jumped on his back--did not "pose[] an immediate threat to the safety of the officers or others" and was not "actively resisting arrest or attempting to evade arrest by flight."
The Court concludes:

Given the undisputed facts that on the highway, Rogoz had pulled over when he noticed the police vehicles, had complied with officers' orders to exit his car, and had complied with their orders to lie face down on the ground with his hands behind his back, and had done so without any show of  resistance, a jury could find that, by that time, there was no urgency that necessitated jumping on Rogoz's back. And if the jury were to find that Watson in fact proceeded to jump on Rogoz's back with such force that he broke Rogoz's rib and/or his spine, it could well find that Watson had used more force than was necessary. Of course, the jury is not compelled to find either that Watson jumped on Rogoz's back--an assertion by Rogoz that is conceded by the police officer defendants only "for the purpose of" defending "Summary Judgment" (Watson brief on appeal at 5-6)--or that the amount of force used by Watson in fact broke Rogoz's spine and rib, an issue that remains in dispute. But if Watson jumped on the back of the prone, compliant Rogoz, breaking his spine and rib, it is surely at least arguable that the force used was excessive.