Thursday, December 27, 2012

Police officer survives Garcetti objection in free speech retaliation claim

A New York City police officer sued his employer because he suffered retaliation after he complained internally about a quota system within the department, "causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers" and that the quotas were hurting the precinct's relationship with the community." Is this free speech? It might be.

The case is Matthews v. City of  New York, a summary order decided on November 28. Public employee speech claims have been difficult to win ever since the Supreme Court in 2006 held that speech arising from the plaintiff's official job responsibilities is not protected. This was the Garcetti case. Under Garcetti, the public employee has no First Amendment protection from retaliation even if his speech raises a matter of public concern.

The district court threw out the case, holding that the quota objections arose from Matthews' job duties. Technically, that was true. But dismissal was premature. Discovery is needed to see if plaintiff's speaking pursuant to his job duties. The Court of Appeals (Raggi, Hall and Carney) says:

The record in this case is not yet sufficiently developed, however, to determine as a matter of law whether Officer Matthews spoke pursuant to his official duties when he voiced the complaints made here in the manner in which he voiced them. See Garcetti v. Ceballos, 547 U.S. at 424–26 (distinguishing between giving employees an internal forum for their speech and making certain speech a duty of employment). As we have recently observed, “whether a public employee is speaking pursuant to h[is] official duties is not susceptible to a brightline rule.” ... The matter may require some inquiry into “the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.” Here, some discovery as to these matters is necessary before it can be decided whether Matthews can or cannot pursue a First Amendment retaliation claim in this case.

This case is a summary order and therefore it carries little precedential value. But it has its moments for plaintiffs.Garcetti cases have fared poorly in the Second Circuit over the last six years. Matthews certainly spoke out on matters of which he was aware from his daily responsibilities. But was his speech part-and-parcel of his ability to do his job? That's the legal standard in the Second Circuit. Matthews' speech was certainly important. The Second Circuit is reluctant to dismiss the case completely and thinks some discovery and document review may shed further light on all of this.

Wednesday, December 26, 2012

School district was deliberately indifferent to endless racial harassment

School districts are liable for student-on-student harassment if they are deliberately indifferent to the problem. This legal standard contrasts with the more plaintiff-friendly negligence standard governing sexual harassment in the workplace. The Supreme Court devised the higher standard in part because kids do tend to tease each other at school and the school cannot be on the hook for everything. But these cases are still winnable. The plaintiff in this racial harassment case won $1 million in damages.

The case is Zeno v. Pine Plains Central School District, decided on December 3. My office represented the plaintiff at trial and on appeal. Anthony was racially harassed by various classmates for 3.5 years after he moved to Dutchess County from Long Island. The Second Circuit ruling details the harassment on a year-by-year basis, and if you think that we are beyond racial hatred in this country, take a look at pages 2-14 of the opinion. The verbal and physical harassment -- in the classroom, in the hallways, on the bus, in the cafeteria, and elsewhere -- was relentless. Anthony and his mother repeatedly complained to the school about the harassment. The family's lawyer and the local NAACP and Dutchess County Human Rights Commission also complained about it.

The question on appeal was whether the jury could find that the district was deliberately indifferent to the harassment despite punishing individual offenders and sponsoring an anti-bullying seminar and diversity program. (I will talk about the damages portion of the opinion in a later post). The Second Circuit (Chin, Cabranes and Livingston) writes, "In some circumstances, prompt disciplinary action against a student's identifiable harassers may show that a school district was not deliberately indifferent. The sufficiency of a response, however, must be considered 'in light of the known circumstances,' and as the 'known circumstances' change, the sufficiency of a response may also have to evolve." The Court of Appeals has never quite put it this way before, directing schools to reconsider their approach to the harassment if it gets worse or the remedial measures are not working. It cites a Sixth Circuit ruled to the effect that "where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances."

Here, five circumstances should have informed the District's continued response to student harassment of Anthony. First, it knew that disciplining Anthony's harassers -- through suspensions or otherwise -- did not deter others from engaging Anthony in serious and offensive racial conduct. (During his sophomore year alone, Anthony was subject to eight separate incidents of harassment.) Second, the harassment directed at Anthony grew increasingly severe. Of the eight incidents that occurred during his sophomore year, two were violent, three were threats on his life, and two resulted in Orders of Protection against the students involved. Third, the disciplinary action had little effect, if any, on the taunting and other hallway harassment, which persisted until Anthony left SMHS, three-and-a-half years after he arrived. Fourth, the District knew that the harassment predominantly targeted Anthony's race and color. And fifth, as early as November 2005, the Dutchess County HRC and N.A.A.C.P. offered the District both a free shadow, to accompany Anthony during the school day, and a free racial sensitivity training series.
The jury could find that the District's remedial response was inadequate and deliberately indifferent for a variety of reasons. While it disciplined many of the students who harassed Anthony, "it dragged its feet. before implementing any non-disciplinary remedial action -- a delay of a year or more. While many cases address delays preceding a school's initial response, once a school is aware of its ineffective response, a delay before implementing further remedial action is no less problematic. At some point after Anthony's first semester, the District should have done more, and its failure to do more "effectively caused" further harassment." Also, "the District's additional remedial actions were little more than half-hearted measures. For example, it coordinated mediation, but did not inform Mrs. Zeno when or where it would be held. Its additional programs either (1) did not focus on racial bias or prejudice, or (2) made attendance optional. This was evident in the District's training for students, parents, and teachers; it was for one day only and focused on bullying and sexual harassment, rather than racial discrimination."

These programs were not enough. The Court writes, "The record indicates that these programs were selected in lieu of the free shadow or racial sensitivity training offered by the Dutchess County Human Rights Commission and N.A.A.C.P. in November 2005, almost a year earlier and only nine months after Anthony was first harassed. Although actually eliminating harassment is not a prerequisite to an adequate response, the District's actions could not have plausibly changed the culture of bias at SMHS or stopped the harassment directed at Anthony." Moreover, the jury could find that "the District ignored the many signals that greater, more directed action was needed."

The deliberate indifference test is still evolving. The Second Circuit borrowed its reasoning from other circuits. That Anthony endured more than three years of harassment did not help the school's position on appeal. Nor did it help that the school ignored certain remedial options that could have made the harassment stop. Liability is affirmed.

Friday, December 21, 2012

The son dies and the parents are arrested: no case

Wrongful death cases against the police are difficult to win for a number of reasons. First, the victim is dead and therefore cannot contradict police accounts of what happened. The plaintiff's relatives -- who bring the lawsuit on his behalf -- may not have any witnesses who can support the argument that the police acted in haste. Second, it's usually (let's face it) difficult people who get into a shootout with the police. Juries like the police and dislike troublemakers on the street. Of course, all this assumes the case reaches the jury. It may not.

The case is Fortunati v. State of Vermont, a summary order decided on November 26. The police shot and killed Joseph Fortunati while attempting to take him into custody. His family sought a jury trial because of a factual dispute over whether Joseph pulled a gun on the police before they opened fire on him. There are some factual disputes in the record, but not enough to undercut as a matter of law the police's argument that they had no choice but to pull the trigger. The Court of Appeals (Jacobs, Pooler and Hall) says,

None of the small differences in testimony Plaintiffs cite creates a genuine dispute as to whether Joseph aggressively drew or reached for his gun immediately prior to being fired upon by the TSU team members. Some officers were able only to see Joseph reach for his waist, but small differences in testimony simply do not rise to the level at which a reasonable jury could find the officers’ credibility damaged. The district court was therefore correct to conclude that there was no genuine dispute of material fact as to the credibility of the officers.
The record also shows that two of the officers shot at Joseph. Here's where the qualified immunity kicks in. Qualified immunity gives police officers the benefit of the doubt in close cases. So that even if the officers violated Joseph's rights, they acted reasonably under qualified immunity. "The Troopers understood Joseph to either be armed or in close proximity to the gun he had brandished hours earlier. The intervening nine hours did not diminish the danger Joseph posed to police and the surrounding community. Thus, the use of non-deadly force by the Troopers who deployed the bean bag ammunition against Joseph meets the objective reasonableness test."

Joseph's parents also sued the police for false arrest after the police detained them for 45 minutes in the aftermath of their son's death. Again, on paper, the police violated their rights in detaining the parents (it does not look as if the parents were charged with any offense). But the police acted objectively reasonably, at least in the eyes of the Court of Appeals:

The encounter was tense; it took place at a crime scene; and the officers had reason to believe that Robert might be armed. The officers were undoubtedly aware that the Fortunati family would be upset over Joseph’s death, and they could also reasonably protect against disruption of the scene of the shooting and interference with their investigative duties. It was therefore objectively reasonable for Defendants to believe that Susan and Mark’s detention did not rise to the level of an arrest, notwithstanding that they may have been detained for a period of up to forty-five minutes after Robert had been taken into custody.

Thursday, December 20, 2012

One more try for the inmate litigant

We have not yet reached the point where pro se inmates are prohibited from filing lawsuits against their jailors. I'm sure if such a measure came up for a popular vote, no inmate would be allowed to bring lawsuits, at least if they cannot find a lawyer willing to take on the risks of the litigation. That day is not upon us, probably because the anti-litigation forces have not thought about such a ballot proposal. In the meantime, we are reluctant to pull the plug. We know that inmates get slapped around when no one's looking.

The case is DeBoe v. DuBois, a summary order decided on November 27. Plaintiff's civil rights lawsuit against Orange County corrections officers was dismissed. The district court said that DeBoe's complaint did not state a claim under Rule 12(b)(6). The Second Circuit (Walker, Katzmann and Hall) reinstates the lawsuit because plaintiff has the right to re-plead his failed claims. The Court of Appeals reasons:

In his complaint, DeBoe alleged that, after he refused [Orange County Correctional Facility] officer Kessner’s “sexual demands,” Kessner threatened DeBoe, “punish[ed]” him, and instituted “[p]unitive retaliations.” Given these allegations, we cannot say at this juncture that, if the district court had provided DeBoe with an opportunity to amend his complaint, he would have been unable to state a § 1983 claim under the due process provisions of the Fourteenth Amendment. We therefore find that a remand is necessary to permit DeBoe to amend his complaint against the OCCF defendants.
Who knows what happened to this guy at the Orange County Jail? The Complaint was probably too conclusory to exit the starting gate. The Court of Appeals knows the plaintiff is an inmate who doesn't know how to draft a complaint. But his conclusory allegations may lead to something, so he gets another chance.

Wednesday, December 19, 2012

Second Department upholds sexual harassment verdict

Any lawyer who prepares clients for deposition will certainly advise him not to volunteer anything. Any lawyer who takes depositions knows to ask enough questions to box in the witness on critical facts before closing out the deposition. How does this play out at trial?

The case is Cheathem v. Ostrow, decided by the Appellate Division, Second Department, on November 21. My law partner and I tried the case, and I argued the appeal. This is a sexual harassment case that went to trial in Orange County Supreme Court in February 2009. The plaintiff worked for a small employer who persisted in seeking sex and groped and touched her over the course of two weeks, causing her quit her job because she couldn't take it anymore. At deposition, counsel asked her to describe the harassment. Each time, she testified about more incidents. But plaintiff was never asked the "close out" question that would box her in, i.e., "have you told me everything he did to you?" So, at trial, she testified for the first time that her employer wanted to play "Simon Says" at work. He took off his shirt, suggesting that she do the same.

On cross-examination, defendant's counsel wanted to impeach plaintiff for not testifying about Simon Says at deposition. The trial judge said this was impermissible because plaintiff did not have the opportunity to testify about this in deposition. Plaintiff went on to win this he-said she-said case; the jury awarded her $25,000 for pain and suffering. The Appellate Division affirms, reasoning that the trial court did not abuse its discretion in limiting the scope of cross-examination:

At trial, the plaintiff testified that her employer, the defendant Stephen Ostrow, required her to play the game “Simon Says,” and that during this game, he instructed her to hop on one foot and expose her bare chest to him. Although the plaintiff did not testify about this event during her deposition, the plaintiff was not asked in her deposition whether she testified to every alleged instance of sexual harassment. Under these circumstances, the use of the plaintiff’s deposition testimony to impeach this portion of her trial testimony would have been confusing and unfairly prejudicial, and the Supreme Court properly precluded defense counsel from doing so.
A contrary ruling would allow the jury to think the plaintiff was making up the story because she did not mention Simon Says at deposition. There is nothing like getting the plaintiff to admit that her account was omitted (or different) from her prior sworn testimony. In a close case, that kind of impeachment can turn the case around. What this case tells us is that the plaintiff should not volunteer testimony at deposition, and that defendants have to box-in the plaintiff so there are no surprises at trial.

Monday, December 17, 2012

Second Circuit awards summary judgment to false arrest plaintiff

The Court of Appeals has affirmatively granted summary judgment on a false arrest claim in favor of the plaintiff, who was arrested for third-degree menacing after he approached a woman in her driveway and asked questions about her family and accused her of sideswiping his vehicle. While the district court granted summary judgment to the defendant police officers, that ruling is reversed. Instead, the plaintiff wins liability on appeal. 

The case is Ackerson v. City of White Plains, decided on November 29. The police report said that Ackerman went to a woman's house and claimed that she sideswiped his car that day. The woman said that her husband was driving the car.. The woman had heard that plaintiff was a stalker and she feared for her safety. Plaintiff also asked about her daughter. The district court held that the officers had probable cause to arrest this guy for menacing, knocking out the case. The Court of Appeals reverses, and the plaintiffs wins the case. This is rare. Normally, summary judgment in favor of the defendants is reversed and the case is remanded for trial. What makes it even more unusual is that false arrest cases are hard to win because the police are often given the benefit of the doubt and probable cause carries a low threshold.

There is no probable cause as matter of law to arrest plaintiff for menacing. Here's the law on menacing in New York:

"A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.” N.Y. Penal Law § 120.15. The defendant must take a physical action with the intent to make another reasonably afraid of an “imminent danger; that is, the perceived danger must be immediate.”
In addition, "[o]ral statements alone do not constitute a physical menace and must be accompanied by a physical action beyond approaching someone to talk with them." Third-degree menacing also requires a well-founded fear of imminent physical injury. As the Court of Appeals (Wesley, Chin and Larimer [D.J.] sees it, "Ackerson approached the woman, came within a few feet of her in her driveway, asked her questions, and left. ... [T]he woman never stated that she felt physically threatened or that Ackerman took any assaultive actions." There was no probable cause, and there was also no qualified immunity for the officers since, the Second Circuit holds, no reasonably competent police officer would believe there was probable cause to arrest plaintiff for menacing. "Being tall, approaching someone, and asking them questions (even in an accusatory tone) does not arguably satisfy the elements of any crime." 

Friday, December 14, 2012

How to draft a notice of appeal

You think it's easy to write up a notice of appeal. Just pull it from your hard drive and change the caption. You'd better take another look at that template.

The case is Gusler v. City of Long Beach, decided on November 26. The plaintiff sued the City and 12 individual defendants under 42 U.S.C. sec. 1983, claiming retaliation. All the defendants moved to dismiss; nine were successful in getting the claim dismissed. As for three of the defendants, the district court denied their motions to dismiss on qualified immunity, and they took up an interlocutory appeal. So counsel for defendants filed a notice of appeal that read:

Notice is hereby given that the defendant Nassau County hereby appeals ... to the extent that the [District] Court denied defendants' motion to dismiss the claims against the individual defendants on the grounds of qualified immunity.
Here's the problem: while the City of Long Beach is situated in Nassau County, Nassau County is not a party to the case. Somebody blew it. But a good lawyer can work with the rules to get what he wants. Or he can at least try. Under Federal Rule of Appellate Procedure 3(c)(1)(A), the notice of appeal has to “specify the party or parties taking the appeal by naming each one in the caption or body of the notice” and permits “an attorney representing more than one party [to] describe those parties with such terms as ‘all plaintiffs,’ ‘the
defendants,’ ‘the plaintiffs A, B, et al.,’ or ‘all defendants except X.’”

The notice of appeal does not quite say the three defendants want to appeal. So it's defective. The only argument for defendants to save the appeal (a proper notice of appeal is jurisdictional) is that their names are in the caption of the notice of appeal. That won't work. The Court of Appeals (Jacobs, Carney and Gleeson [D.J.]) says:

the reference in Rule 3(c)(1)(A) to “naming [the party] in the caption” is best understood to mean that the notice of appeal is sufficient even if the party taking the appeal is named nowhere but in the caption if--and only if--it is manifest from the notice as a whole that the party wishes to appeal. The notice of appeal then meets the requisite of “specify[ing] the party or parties taking the appeal.”

In addition, "An appeal must not be dismissed ... or failure to name a party whose intent to appeal is otherwise clear from the notice." This notice of appeal doesn't work because the three defendants' intent to appeal is not clear. The Second Circuit says, "The three defendants against whom claims remain are among the parties listed in the caption, but the body of the notice states that someone else is appealing the district court's order."

As the Court of Appeals notes, "The statement in the text of the notice--that the appeal concerns the district court’s order 'to the extent that the Court denied defendants’ motion to dismiss the claims against the individual defendants on the grounds of qualified immunity'--may give reasonable grounds for concluding that only the individual defendants have an interest in appealing." However, the notice of appeal is still ambiguous because it says that all the defendants want to appeal, including the ones who won their motion to dismiss the case. "And if it should transpire in the future that it was error to dismiss the claims against them, it is not clear whether they would be bound by any decision we issued in this appeal with respect to their entitlement to qualified immunity. Thus, the notice fails to meet the basic requirement of informing the court and the opposition of who is taking the appeal."

If you want to know the policy reasons for the above rules, read the opinion. The rules do allow for some flexibility, but the Court of Appeals will not bend them to help the defendants in this case. The Court concludes, "Because the notice of appeal did not specify which defendants were taking an appeal of the district court’s decision, we lack jurisdiction to consider their appeal."

Wednesday, December 12, 2012

Courtroom closure during voir dire gets defendant a new trial

This case tells us a few things: first, that a seemingly inconsequential technicality may entitle a convicted felon to a new trial under the Constitution. And second, lawyers really ought to keep up with case law developments.

The case is United States Gupta, decided on November 8. During jury selection, the defendant's brother and his companion were asked to leave the courtroom because there was no room for them in light of the large jury pool and also to ensure that potential jurors did not hear anything about the case. Defendant's lawyer had no idea this was even happening; he was too busy conducting jury selection. After defendant was convicted, he told his lawyer about the expulsion of his brother and companion. Meanwhile, the case was on appeal to the Second Circuit. But in light of a recent Supreme Court decision that addressed when the public may be excluded from jury selection, counsel told the Court of Appeals about the expulsion for the first time and the case was remanded to the district court for factfinding on this issue. That recent Supreme Court decision helped defendant here.

Back up on appeal, the Court of Appeals vacates the conviction. The courtroom closure was unjustified under Supreme Court precedent. The government even concedes this in its appellate brief. But the government says this was a trivial courtroom closure, you know, no harm no foul. The Court of Appeals (Parker, Walker and Hall) disagrees, reasoning:

Whatever the outer boundaries of our “triviality standard” may be (and we see no reason to define these boundaries in the present context), a trial court’s intentional, unjustified closure of a courtroom during the entirety of voir dire cannot be deemed “trivial.”

Much of the Government’s argument rests on its observation that the voir dire proceedings here failed to produce any contentious issues. We do not necessarily disagree. Most voir dire proceedings are uncontroversial. But the public trial right is not implicated solely in discordant situations. Rather, “the value of openness” that a public trial guarantees “lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known.” Thus, the regularity of the proceedings is an important impression with which the courts should leave observers. While a public presence will more likely bring to light any errors that do occur, it is the openness of the proceeding itself, regardless of what actually transpires, that imparts “the appearance of fairness so essential to public confidence in the system” as a whole.

Monday, December 10, 2012

Public employee fired for filing civil rights lawsuit

Did you know that, with few exceptions, public employees can be legally fired in retaliation for filing a non-frivolous lawsuit against their public employers? It's true. These are not First Amendment cases anymore. The plaintiff files these lawsuits at his own risk.

The case is Connolly v. City of Rutland, a summary order decided on November 5. Years ago, federal judges in the Second Circuit held that the First Amendment prohibited employers from firing public employees who filed civil rights cases against their employers. But if you follow First Amendment retaliation cases in the Second Circuit (and around the country) you know that public employee speech rights have dwindled over the last decade or so.

Connolly's initial lawsuit alleged that the City violated her due process rights under the Constitution in terminating her employment. Although it is not clear in the Second Circuit or district court opinions, Connolly was somehow retaliated against by the Town after filing that lawsuit. She claimed the First Amendment protected her from retaliation for bringing the lawsuit because it raised "a matter of public concern," the legal standard for protected speech by public workers. But the lawsuit does not raise a matter of public concern. While Connolly tries to satisfy this test by arguing that the due process case highlights the way the City manages its affairs, that argument doesn't cut it these days. The district court wrote:

Connolly argues that her lawsuit is protected speech because its content "is of significant importance and interest to the citizens of Rutland" and the lawsuit "concerns the means and methods by which the City's . . . budget and property tax rates were adopted." Connolly further asserts that the content of the speech "concerns [Mayor Louras's] claim, made in the City's Annual Report . . . that he had to eliminate funding for three full-time employees in order to achieve his political goal of `maintaining the tax rate.'" Connolly's original Complaint, however, raised claims arising out of Defendants' conduct in connection with her termination. Just as the plaintiff in Huth v. Haslin, 598 F.3d 70 (2d Cir. 2010), the nature of Connolly's lawsuit is personal to her and generally related to her own situation. Likewise, there is no suggestion in her complaint that Connolly seeks to "debate issues of discrimination" or obtain "relief against pervasive or systemic misconduct by a public agency or public officials." Nor is there any indication that this lawsuit is part of an overall effort to correct allegedly unlawful practices or bring them to public attention.

Nearly every public employee lawsuit against his employer will in some way implicate the public budget or personnel policies or some other matter of esoteric interest to the community. But you need more than that to show the lawsuit raised a matter of public concern. The district court said,

Connolly's lawsuit does not directly 'concern' the City budget or claims made in its Annual Report. Her lawsuit was neither brought to '[d]iscuss[ ] . . . current government policies,' nor 'aimed at uncovering . . . breaches of public trust.' Connolly's only argument related to the City budget pertains to her claim that the City's 'lack of funds' is a sham. This argument constitutes a complaint about Connolly's  'own dissatisfaction with the conditions of [her] employment.' Accordingly, Connolly's lawsuit does not pertain to a matter of public concern.

The Second Circuit (Raggi, Pooler and Leval) upholds this reasoning, and the case is dismissed.

Thursday, December 6, 2012

Qualified immunity takes the fun out of due process lawsuit

In this due process case, the plaintiff was a tenured school guidance counselor at a Connecticut high school. Then she took on a guidance counselor position at a different high school because she couldn't get along with the principal at the first high school. Then she took on another guidance counselor position at a third high school (Cheney Technical High School) after getting assurances that she could return to the second high school in March 2008.

Before plaintiff could return to the second high school, she was informed in writing that her durational position at Cheney would be eliminated. Plaintiff argued that she had a protected property interest in her position and that the termination letter violated due process because she had no opportunity to be heard before losing her job. She loses the case on qualified immunity grounds.

The case is Coolick v. Hughes, decided on October 24. Under qualified immunity, the defendant wins the case if the law is not clearly established at the time of the violation. This means that even if in hindsight the defendant violated the Constitution, the defendant is off the hook because the case law was not clear at the time and the public official defendant is given the benefit of that doubt. Here, the defendant who fired the plaintiff did not proceed in an objectively unreasonable manner.

The Second Circuit has held that where the plaintiff is subject to a union contract that provides for adequate post-deprivation procedures, that contract is in effect due process. Those adequate post deprivation procedures constitute due process because some neutral arbitrator or decisionmaker can rule on whether you were treated fairly. That is what happened here. The Court of Appeals (Winter, Hall and Hellerstein [D.J.]) notes that plaintiff utilized the grievance procedures under the contract and she actually won that grievance, which reinstated her with back pay and benefits. She did not lose her tenured status even though she had moved around from position to position at the high schools.

But while plaintiff wins her grievance in proving that defendants violated the union contract, she cannot proceed with her Section 1983 claim under the Due Process Clause. (She proceeded with the federal suit in order to recover punitive damages and attorneys' fees). As a constitutional matter, this case falls into a grey area, the Court of Appeals says. Precedent suggests that there was no constitutional violation at all. But, at a minimum, the law was not clear at the time that plaintiff's constitutional rights were violated. This kills the lawsuit on qualified immunity grounds.

Monday, December 3, 2012

Bergstein & Ullrich sustain $1 million racial harassment verdict

NY court OKs $1M school racial harassment award

Published: December 3, 2012 Updated 1 hour ago

— One of the biggest awards ever issued for racial harassment in high school - $1 million - was upheld Monday by a federal appeals panel that said it was fair for a jury to conclude a school district should have done more to stop demeaning, threatening and violent conduct directed at a student.

The decision by the 2nd U.S. Circuit Court of Appeals in Manhattan left in place the award for Anthony Zeno, a former student at Stissing Mountain High School in Dutchess County. The award had been reduced from the $1.25 million a jury originally awarded the now 23-year-old haircutter during a 2010 trial. The appeals court said the award wasn't unreasonable given that payouts for harassment in similar cases have ranged from the low six figures to $1 million in one other instance.

The appeals court's opinion noted that Zeno is "dark-skinned and biracial, half-white, half-Latino." It said he "had been menaced, threatened and taunted" at a school where minorities represented less than 5 percent of the student population.

"He endured numerous serious - and sometimes life threatening - incidents of harassment," it said.
It said the Pine Plains Central School District, the defendant in a lawsuit brought by Zeno, knew Zeno was called numerous racial slurs during his 3 1/2 years at the high school from 2005 to 2008 and it was fair for a jury to conclude that school officials should have known that greater action was required beyond punishing individual students each time an attack occurred or offering optional sensitivity training sessions.

The opinion written by Circuit Judge Denny Chin said the appeals court concluded that the school district's "deliberately indifferent responses effectively caused Anthony's continued harassment."

Zeno's lawyer, Stephen Bergstein, praised the ruling, saying: "It's going to help a lot of kids."

"Districts will put better programs in place, keep a better eye out on the kids that are being harassed," he said. "The school was reactive, and you have to be proactive."

Lawyers for the school district did not return a call for comment Monday.

The harassment began in February 2005, weeks after Zeno transferred from Long Island, with racial slurs and frequent taunts. Over time, his harassment worsened, with a football teammate punching him, a student being restrained as he was about to throw a chair at him and his discovery of bathroom wall graffiti saying, "Zeno will die," the 2nd Circuit said. Other students filled his locker with garbage and taunted him with references to lynching, including displaying a noose and threatening to take a rope to the nearest tree, the court said.

The school district suspended some harassing students, typically for five days, and moved one student to another school. Twice, Zeno obtained orders of protection.

New York's concealed handgun law does not violate Second Amendment

The Supreme Court in 2008 gave life to the Second Amendment, holding that the right to bear arms prevented the District of Columbia from banning handguns in the home. That ruling, United States v. Heller, held for the first time that the Second Amendment protects an individual right to own a gun in certain cases. For the next 25 years, courts will have to explore the contours of that right.

The case is Kachalsky v. County of Westchester, decided on November 27. When it comes to interpreting the Second Amendment, the Second Circuit is just getting started. It holds that the Constitution allows New York to make you demonstrate "proper cause" before you can carry a concealed handgun in public.

This case arises from a series of plaintiffs who were denied permits to carry a concealed handgun.Unless you work in certain professions that need a gun as a job or safety requirement, potential handgun owners have to "demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." A generalized need for self defense is not enough. You also have to undergo a mental health, criminal history and moral character check. Do these requirements violate the Second Amendment? They do not.

Heller does not mean that every plaintiff will win his Second Amendment case. Heller struck down the D.C. gun prohibition because a man's home is his castle, and constitutional law generally keeps the home off-limits to government intrusion. But once you step outside with a pistol, the government has a heightened interest in making sure that guns are not in the hands of every Tom, Dick and Harry who wants one. The Second Circuit (Katzmann, Lynch and Wesley) labors to find the right standard of review in a case like this. It settles on intermediate, and not strict, scrutiny. The gun restriction is legal if it is substantially related to an important government interest., the same test governing sex discrimination. The Court says, "while the state’s ability to regulate firearms is circumscribed in the home, 'outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self defense.' There is a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety."

The proper cause requirement under New York State law satisfies this test. The state decided 100 years ago to regulate handguns like this. The Second Circuit sums it up:

Given New York’s interest in regulating handgun possession for public safety and crime prevention, it decided not to ban handgun possession, but to limit it to those individuals who have an actual reason (“proper cause”) to carry the weapon. In this vein, licensing is oriented to the Second Amendment’s protections. Thus, proper cause is met and a license “shall be issued” when a person wants to use a handgun for target practice or hunting. ... And proper cause is met and a license “shall be issued” when a person has an actual and articulable—rather than merely speculative or specious—need for self-defense. Moreover, the other provisions of section 400.00(2) create alternative means by which applicants engaged in certain employment may secure a carry license for self-defense. As explained earlier, a license “shall be issued” to merchants and storekeepers for them to keep handguns in their place of business; to messengers for banking institutions and express companies; to state judges and justices; and to employees at correctional facilities. Restricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York’s interests in public safety and crime prevention.