Friday, January 19, 2018

Wandering Dago, Inc. wins free speech case in the 2d Circuit

The Supreme Court has been taking an absolutist view on free speech over the last decade, ruling that campaign donations are free speech (Citizens United) and that even the most offensive speech imaginable is protected under the First Amendment (military funeral protests by the anti-gay Westboro Church). Last year, the Court held that the federal government could not deny a trademark to an entity that used an ethnic slur to promote its product. That was the Matal case. Matal compels the Court of Appeals to now hold that New York State cannot deny a food vendor a license based on its name, an ethnic slur.

The case is Wandering Dago, Inc. v. Destito, decided on January 3. Wandering Dago is the name of a food vendor that wants to sell food in the Capitol complex in Albany, where a series of government buildings surrounding the State Capitol that empties out during lunchtime in a huge park-like concourse that is home to food vendors and tourists who admire the beautiful Empire State Plaza that Gov. Rockefeller built with his bare hands as a means to impress foreign dignitaries. The State of New York denied Wandering Dago permission to sell food at Summer Outdoor Lunch Program because the business name is a slur against Italians.

Nowadays, the public is increasingly aware of offensive speech and the need to be "politically correct." At the same time, when it comes to free speech, anything goes at the Supreme Court, including ethnic slurs. In 1995, the Court held in the Rosenberger case that the government discriminates against viewpoints when it disfavors certain speech because of the "specific motivating ideology or the opinion or perspective of the speaker." In 2007, the Court said the Patent Office could not issue a trademark for a rock band called The Slants, a slur against Asians. The Court reasoned that the trademark denial was unconstitutional viewpoint discrimination. Justice Kennedy said in concurrence that the government policy of "mandating positivity . . . might silence dissent and distort the marketplace of ideas" even if the policy is applied evenhandedly to all participants. In other words, it is not for the government to decide what is offensive. That case is Matal v. Tam, 137 S.Ct. 1744 (2017).

The reasoning in Matal strikes down New York's policy guiding the Summer Outdoor Lunch Program. The Court of Appeals (Carney, Calabresi and Amon [D.J.] says: 

Ultimately, we think Matal compels the conclusion that defendants have unconstitutionally discriminated against WD's viewpoint by denying its Lunch Program applications because WD branded itself and its products with ethnic slurs. Although ethnic slurs are used to express a variety of opinions and obtain a variety of effects, under Matal the mere use of these potentially offensive words in the factual setting presented here reflects a viewpoint and cannot be framed by the government as a larger viewpoint-neutral category of speech content available to advance multiple viewpoints and therefore subject to less First Amendment protection.
In addition, the viewpoint discrimination is not justified, the Second Circuit holds. This form of censorship is legal only if the government identifies a compelling reason for it. "Defendants have not argued that their actions, if correctly characterized as viewpoint discrimination against WD's private speech, were sufficiently justified by OGS's governmental interests to survive First Amendment scrutiny. Nor do we think that that argument could be successfully made here, but we address it briefly to complete the analytical picture."

Thursday, January 18, 2018

Supreme Court vacates death sentence because of racist juror

The Supreme Court has been cracking down on racism in the criminal justice system lately. In this case, decided without oral argument, the Court says a man on death row deserves a new trial because one of the jurors signed an affidavit demonstrating that racism factored into the verdict. Three Justices dissent.

The case is Tharpe v. Sellers, decided on January 8. Post trial, the defense team got one of the jurors, Barney Gattie, to sign an affidavit stating that he thought "there are two types of black people: 1. Black folks and 2. Niggers." He also said the defendant "wasn't in the 'good' black folks category" and "should get the death penalty for what he did," and that "some of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn't my reason." Gattie also said, "after studying the Bible, I have wondered if black people even have souls."

The Supreme Court says that this "remarkable affidavit," which Gattie never retracted, "presents a strong factual basis for the argument that Tharpe's race affected Gattie's vote for a death verdict."

Justice Thomas writes the dissent, which Justices Alito and Gorsuch join. Thomas is not happy with the majority. He writes, "If bad facts make bad law, then 'unusual facts' make unusual decisions." He accuses the majority of "bending the rules" to "show its concern for a black capital inmate." Then, in a Scalia-like barb, he writes, "the Court must think it is showing its concern for racial justice. It is not."

After summarizing the gruesome details of the murder, Thomas notes that Gattie signed a second affidavit that said he "did not vote to impose the death penalty because Tharpe was a black man" but because Tharpe was guilty and showed no remorse. The second affidavit also said that Tharpe's lawyers took his statements out of context and they "were deceiving and misrepresented what they stood for." In a later deposition, Gattie said that on the day he signed the first affidavit, he drank "maybe a 12 pack, and a few drinks of whiskey." In addition to attacking the procedural defects surrounding the defendant's habeas corpos petition, Thomas says "no reasonable jurist could debate the question of prejudice in light of the second affidavit in which Hattie said he did not swear to the first affidavit  and "had consumed a substantial amount of alcohol on the day he signed it." The other jurors denied imposing the death penalty out of racial prejudice. In the end, Thomas says, the Court should defer to the lower court's credibility determination on this issue, which found against racial prejudice.

Wednesday, January 17, 2018

Defendants have the burden of pleading and proving Title VII exhaustion issues

The Second Circuit says for the first time that the defendant has the burden of showing that the plaintiff in a Title VII suit did not properly exhaust his administrative remedies.

The case is Hardaway v. Hartford Police Department, decided on January 12. Hardaway claims that management subjected him to racial discrimination in employment. To bring a claim under Title VII, plaintiffs have to file an administrative charge of discrimination with the EEOC or the state human rights office within 300 days of the discriminatory act. We call this "Title VII exhaustion," which is not a jurisdictional requirement. That means the defendant can waive its objection to an untimely Title VII action. Also, the Title VII exhaustion requirement is "subject to equitable defenses."

In the past, the Second Circuit has said compliance with the Title VII filing deadlines operate as an affirmative defense. It has also said the failure to exhaust administrative remedies "can be asserted by the government as an affirmative defense" in Title VII cases bought by federal employees, whose cases are governed separate statutory provisions and regulations.

Further developing this exciting line of cases, the Court of Appeals (Winter, Pooler and Calabresi) adopts the view taken by most of the other circuits, holding that "the burden of pleading and proving Title VII exhaustion lies with defendants and operates as an affirmative defense." This decision "follows from other areas where administrative exhaustion is an affirmative defense," such as in prisoner litigation under the PLRA.

Thursday, January 11, 2018

Some confrontation clause for you all

This is an interesting habeas corpus ruling that is relegated to the land of summary orders and will not get attention despite its take on a recent Supreme Court ruling on the confrontation clause and criminal prosecutions.

The case is Cook v. Bayle, issued on December 27. The framers of the Constitution did not want people being thrown into the slammer on the basis of eyewitness testimony that the defendants had no opportunity to cross-examine. Hence, the confrontation clause, part of the Sixth Amendment. The Supreme Court lately has shed light on this concept, ruling that the key to this equation is that the evidence must be "testimonial." In those cases, the Court "addressed the meaning of testimonial in the context of laboratory testing of . . . purported narcotics and actual blood for its blood alcohol content."

In this case, the defendant got pulled over and failed four field sobriety tests. The police also used a breathalyzer test that reported his blood alcohol content as .12 percent. During the arresting officer's testimony, the government introduced into evidence records relating to the breathalyzer, establishing it was working properly that night. Defendant has been arguing ever since that these records were "testimonial" and their introduction at trial violated the confrontation clause.

Defendant raises interesting arguments in this habeas case, which did not prevail in the district court. It also fails in the Second Circuit. Habeas corpus petitions will not succeed unless the defendants can show the constitutional violations violated clearly established Supreme Court precedent. You need a case on point from the Court for the habeas petition to prevail. This case does not make it. The Second Circuit (Livingston, Lynch and Rakoff [D.J.]) states,

First, it is not clearly established that all crime lab records are testimonial. Those “created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial” may be introduced at trial without implicating the Confrontation Clause. Nor has the Supreme Court held that records accompanied by signatures and a seal are testimonial by virtue of such formalities. Next, and most significantly, although the records’ creators may have anticipated that they might be used at trial, what matters is the records’ primary purpose. And here, a reasonable court
could conclude that these records had a primary purpose other than to be a substitute for in-court testimony. . . . Exhibits 5, 6, and 12, while relevant to establish that Cook was guilty, were not created for that purpose. When the relevant breathalyzer tests were performed, the primary purpose of the tests was to confirm that the breathalyzer worked, “not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time.” And irrespective of their evidentiary value, crime labs are required by New York State health regulations to create and keep these records.

Tuesday, January 9, 2018

2d Circuit reinstates evidence fabrication claim

One of the worst things a police officer can do is fabricate evidence intended to arrest and convict someone. Someone victimized by this can bring a lawsuit against the officers, but the burden of proof is difficult to meet. The Court of Appeals notes that "to state such a fair trial claim, a plaintiff must plausibly allege that investigating officers fabricated information that was likely to influence a jury’s verdict, forwarded that information to prosecutors, and that the plaintiff suffered a deprivation of life, liberty, or property as a result." In this case, the plaintiff states a plausible claim on his fair trial case.

The case is Hicks v. Marchman, a summary order decided on January 5. This appeal arrives in a Rule 12 posture, which means a well-pleaded complaint can survive a motion to dismiss even if the case ultimately fails on a motion for summary judgment.

Plaintiff alleges "that the officers used impermissibly suggestive identification procedures to encourage the victim, T.T., to identify Hicks as her assailant from a photographic array and then failed to disclose the use of those suggestive procedures to the District Attorney’s Office." That allegation is not enough to pursue a claim like this, "because the state criminal court assumed the
procedures were suggestive, excluded the resulting identification, and determined that there was an independent basis for T.T.’s later identifications of case that he relied on in his complaint." But the complaint goes further than that. Plaintiff also claims

(1) a detective deliberately gave T.T. prejudicial information about Hicks during the photo array procedure and hid this misconduct from the court and prosecutors; (2) the officers lied to the prosecutors that Hicks had bragged about being the “Bronx Rapist” and that Hicks’s mother told them that Hicks was the person depicted in the sketch T.T. had created; (3) Hicks’s parole officer ultimately refused to credit T.T.’s identification of Hicks after interviewing T.T.; (4) the officers failed to preserve the photographic array from which T.T. identified Hicks; and (5) two other victims were unable to identify Hicks. In view of Hicks’s ultimate exoneration, these allegations together raise a plausible inference that the officers fabricated information that was likely to influence a jury’s verdict and that they forwarded that information to the prosecutors. Hicks has also adequately alleged that he was arrested as a result of the fabricated information and that the information influenced the prosecutors’ “decision to pursue charges rather than to dismiss the complaint without further action[.]”
Since plaintiff was ultimately exonerated, these allegations raise a plausible inference that the officers fabricated information that was likely to influence the jury's verdict and that they forwarded that information to the prosecutors. The case will proceed to discovery.

Monday, January 8, 2018

Back to the basics on discrimination/retaliation claims

This case is an employment discrimination case that was dismissed on summary judgment and affirmed on appeal. The Second Circuit runs through some basic concepts governing these cases, refreshing us all in this new year as to how these cases work and why they get dismissed.

The case is Carvalho v. Associated Brands, Inc., a summary order issued on December 28. Plaintiff sues under the Americans with Disabilities Act and the Family and Medical Leave Act for discrimination and retaliation. On the promotion denial claim, he says defendant (which makes custom-branded food products) did not choose him to fill a position to which he had applied, a "bouillon machine operator." Plaintiff says he was denied the promotion because of his anxiety disorder.

The Court of Appeals (Parker, Lynch and Droney) assumes plaintiff makes out a prima facie case. Courts will do that from time to time since the prima facie case is easy to make out under the de minimus standard. The Court goes straight to the pretext analysis. Under the framework, if the plaintiff makes out a prima facie case, there is an initial presumption of employment discrimination. Once the employer articulates a legitimate reason for the promotion denial (and it always does), the plaintiff can win the case by showing that reason is a pretext for discrimination. Proving pretext is not easy, and the Second Circuit does not easily find the employer has articulated a false or bad faith reason for an adverse action. This case is no different. Management says it simply did not fill the open position after accepting application for it. The Second Circuit finds no reason to second-guess that business judgment. This case reminds us that courts do not like to second-guess personnel choices.

There is also a retaliation claim. The same analysis governs retaliation claims: plaintiff must proffer some evidence to suggest there was retaliation in the form of a prima facie case. If he does, management articulates a reason which the plaintiff will attack like a pinata. No dice here. Plaintiff does not make out an adverse action. He claims the adverse action took the form of management's treating his FMLA leave as unexcused form FMLA purposes, before later correcting the absence as excused. Management reversed course on this "as a sign of good faith and giving Carvalho the benefit of the doubt" after he complained about it. "This temporary mistaken designation of Carvalho's leave as unexcused is not a 'materially adverse change in the terms, privileges, duration,or conditions of his employment."

Wednesday, January 3, 2018

NY Court of Appeals endorses cross-racial identification jury instruction

What do we tell the jury about eyewitness identifications in cases where there is a cross-racial identification, such as when a white witness says a black man was at the scene of the crime? The New York Court of Appeals takes up that issue, holding that when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, a party is entitled to a charge on the risks inherent in cross-racial identification.

The case is People v. Boone decided on December 14. The Court of Appeals reviews the scholarship and literature on the likelihood of misidentification when an identification is cross-racial, noting that "the phenomenon is known as the cross-race effect or own-race bias." The scholarship says that generally, "people have significantly greater difficulty accurately identifying members of other races than members of their own race. . . . [P]articipants were 1.56 times more likely to falsely identify a novel other-race face when compared with performance on own-race faces."

This phenomenon is problematic in criminal cases where the defendant is identified as the perpetrator based on eye-witness identification. While 47 percent of jurors are familiar with the cross-race effect, this is "by no means a universal belief shared by all. The need for a charge on the cross-race effect is evident." So here is the how the Court of Appeals wraps up this issue:

in a case in which a witness's identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness's identification.  The instruction would not be required when there is no dispute about the identity of the perpetrator nor would it be obligatory when no party asks for the charge.