A Rikers Island inmate who claims he was beaten up by the correction officers is getting a new trial because the trial court prevented the jury from viewing evidence that was critical to his case.
The case is Rentas v. City of New York, decided on March 8. Rentas says that officers at Rikers Island beat the hell out of him and fabricated evidence against him, leading to his prosecution and prolonged detention at Rikers. He also sued them for malicous prosecution, but that claim got dismissed pre-trial. The jury instead heard evidence about the excessive use of force and fabricated evidence. At trial, the judge allowed the jury to see some but not all of the officers' reports about the incident; it was those reports that Rentas claimed supported his fabrication-of-evidence claims. Rentas also brought his Intentional Infliction of Emotional Distress claims to trial. The jury liked that claim and awarded him $67,000. While the jury also found in Rentas's favor on the excessive force and fabrication claims, it only gave him nominal damages on those claims.
The Court of Appeals (Parker, Lohier and Carney) issues a slew of rulings. First, on the malicious prosecution claim that got dismissed prior to trial, the Court of Appeals says the trial court got it wrong in finding that plaintiff could not show the charges that the officers filed against him in connection with his altercation with the officers lacked probable cause, an essential element of any malicious prosecution claim. While defendants said probable cause arose from the testimony of other inmates, those statements were merely quoted in an investigation report prepared by one of the defendants, and it is not clear these statements were independent and untainted information which prosecutors could rely in charging plaintiff with assault. In addition, plaintiff testified that the charges against him were false, and other evidence -- like photos which did not show that he suffered the injuries that would have existed had he attacked the officers -- further showed the charges against him lacked probable cause.
The "fair trial" claim arising from the officers' fabricated reports against plaintiff went to trial. Rentas won on this claim, but the jury gave him only nominal damages. The trial court allowed the jury to see some but not all the officers' reports. That was wrong, the appellate court says. While the City argues the reports were cumulative of other testimony, that misses the point. The reports themselves were a central part of Rentas's claim that the officers had falsified the reports. The reports also supported his excessive force claims. Even the jury wanted to see the reports during deliberations, to no avail. Rentas gets a new trial on his federal claims.
Rentas did spend three years in jail awaiting trial on his criminal charges which were dismissed, leading to his malicious prosecution claim. He wants the Court of Appeals to tell the trial court that it must allow the jury to award him compensatory damages for this, not nominal damages, which typically amount to a dollar. The Court of Appeals finds that nominal damages were permissible because the jury could have found that Rentas's detention was not caused by the fake evidence but "rather by whatever independent, untainted evidence supported probable cause." The jury found that some defendants fabricated evidence but that others did not. "The jury could have also found that the submission of the non-fabricated evidence would have resulted in Rentas's loss of liberty even in the absence of fabricated evidence." Were that the case, the jury could award only a dollar. On retrial, the jury will again be charged that they could give plaintiff compensatory damages or nominal damages.
Finally, the Court of Appeals says the jury was able to award plaintiff money on his state law IIED claim. Even assuming medical evidence is needed for this claim, plaintiff had that evidence in the form of hospital records showing anxiety, loss of sleep and PTSD. For those of you who want the big bucks in police misconduct cases, remember that this guy only got $67,000 for this.
In civil rights cases, the winning plaintiff recovers her attorneys' fees from the losing defendant. So if the plaintiff's lawyer spent 100 hours on the case and is entitled to $300 per hour, the defendant pays out $30,000 in addition to whatever damages the jury awarded. This is mostly a one-way street, though. As a general rule, winning defendants get bubkis from the losing plaintiff.
The case is Nicholas v. City of Binghamton, a summary order decided on March 10. This police misconduct went to trial, and Nicholas lost. Here is the rule governing reverse attorneys' fees:
A prevailing defendant should not be awarded fees unless a court finds that the plaintiff’s claim was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” “The fact that a plaintiff may ultimately lose [her] case is not in itself a sufficient justification for the assessment of fees” in favor of a defendant. Courts should not “engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.”
In other words, if the plaintiff fought the good fight, she does not get penalized for losing. As the Court of Appeals says in this case, "Ordinarily, a claim should not be deemed “groundless where the plaintiff has made a sufficient evidentiary showing to forestall summary judgment and has presented sufficient evidence at trial to prevent the entry of judgment against him as a matter of law. As the decisions of this Court demonstrate, it is very rare that victorious defendants in civil rights cases will recover attorneys’ fees.” In other words, bupkis.
The district court calculated defendants' attorneys' fees entitlement as $31,865. But since plaintiff is out of work and has little money, the court reduced her fee liability by two-thirds, to about $10,000.
The district court awarded the City attorneys' fees, but the Court of Appeals (Winter, Hall and Droney) vacates that award. Plaintiff may have lost, but her claims were not frivolous. There is a difference. Here is how the Second Circuit reasons through it:
A large portion of the district court’s fee award was attributable to Appellant’s excessive
force claim, which was not deemed unsuccessful until it was litigated at trial. Although several of the witnesses disputed Appellant’s version of events, the mere fact that the jury ultimately chose to disbelieve Appellant did not render her claim frivolous. Moreover, contrary to Appellees’ arguments as to the medical evidence, Appellant’s trial evidence, including conclusions rendered by her treating doctors, supported her claim that the trauma of the handcuffs could have exacerbated the underlying arthritis in her wrists. Even though Appellant’s excessive force claim was not particularly strong, it was not frivolous, unreasonable, or groundless.
A pro-Israel organization that hates Jihad wanted to place a public service advertisement on the MTA buses in New York City. The City said the mobile billboard could not be posted because it would incite violence. A federal court then struck down the regulation that allowed the City to quash the sign. After the City amended its signage rules, the federal court dissolved the injunction as moot. The Court of Appeals agrees with that mootness finding.
The case is American Freedom Defense Initiative v. MTA, decided on March 3. The advertisement portrayed Muslims in a negative light and made reference to killing Jews and Jihad. Like I said, a federal judge said the provision invoked by the MTA in rejecting the sign violated the First Amendment. But that injunction went out the window when the City rewrote the signage rules. The signs can be seen at this link. The plaintiffs want the injunction to continue because, they say, the new rules are similar and also violate the First Amendment in that they prohibit advertisements that are "political in nature." The Court of Appeals (Katzmann, Kearse and Schofield [D.J.[) finds the district court it right. This case is moot.
Cities and other municipalities are given the benefit of the doubt when they change the rules that people challenge in court. If the court finds there is no likelihood that the old rules will return, then the case is moot. If the new rules are too dissimilar from the old rules, then the case is moot. If the case is moot, we all go home and look for another municipality to kick around. Mootness can kill off even the most interesting lawsuits.
The City convinced the Second Circuit that the old rule is gone for good. The current rule -- which prohibits political advertisements -- is too different from the incitement prohibition. If the plaintiffs want to sue the City again, they will have to find a way to challenge the rules that prohibit political signage on MTA buses. k here to edit.
The Family and Medical Leave Act was passed in 1993, but it remains one of the more recent civil rights laws. It requires employers to give certain employees up to four months' unpaid leave to deal with family and personal illnesses and medical emergencies. This case looks at an obscure provision in the FMLA.
The case is Oliveria v. Cairo-Durham Central School District, a summary order decided on February 23. Under FMLA, employees who take medical leave of some kind will return to work when the crisis is over. The regulations state that employers have to let employees know how they will return to an equivalent position upon their return to work. In particular, the employer's policies "must clearly explain the employee's restoration rights upon return from leave."
The employer violated that regulation here. Its return to work policy says that employees will return to an equivalent position but they would not continue to accrue service credit during unpaid FMLA leave. "The District therefore had a duty under [the regulation] to inform plaintiff in writing about the policy before she took FMLA leave. Having failed to do so, it violated the notice requirements" under the regulations.
What this violation means for the case is that the jury may find that the employer's failure to properly apprise the plaintiff of the District's policy may "constitute an interference with, restraint, or denial of plaintiff's FMLA rights." This would be significant if plaintiff "would have taken FMLA leave had she been properly notified about the policy regarding restoration of tenure." In other words, the employer's failure to advise plaintiff about the consequences of unpaid FMLA leave could constitute an "interference" under the law. More specifically, this is how the district court characterized plaintiff's interference claim:
Plaintiff asserts that defendants interfered with her FMLA rights by: (1) failing to restore her to an "equivalent position", deducting twenty-three days from her seniority and rendering her status "inferior" to the status she held prior to taking leave, in violation of 29 U.S.C. 2614(3)(B) and 29 C.F.R. § 825.215(a); (2) failing to inform her "in writing or otherwise, that upon her return from FMLA leave, her seniority status would be reduced by the amount of unpaid FMLA-protected leave she took"; (3) "deducting the time that plaintiff was out on unpaid FMLA leave from [her] seniority status" and using it as a negative factor resulting her in her termination; and (4) "discourag[ing] employees from exercising their FMLA rights" by deducting the leave from their seniority status.
This is a summary order, so we don't know all the details, but since the Court of Appeals (Cabranes, Pooler and Chin) is reversing summary judgment, this decisions means the FMLA interference case goes to trial. As plaintiff did not lose her job or suffer any demotion, I don't know what the damages would be for a claim like this. All of that will have to be sorted out on remand.
The jury in this racial discrimination case found that the Village of Freeport violated Section 1981 and Title VII in appointing an Hispanic police officer (Bermudez) as Police Chief instead of the plaintiff (Barrella), a white male. That $1.350 million verdict is gone because the trial court allowed the plaintiffs to put on lay witnesses who told the jury they thought the police chief appointment was racially-motivated. Since that kind of opinion testimony is prohibited under the rules of evidence, the Village gets a new trial.
The case is Village of Freeport v. Barrella, decided on February 16. I wrote about the first part of the ruling at this link, which ruled that "Hispanic" is a race under Title VII and Section 1981. That interesting discussion segued into the more traditional appellate analysis about whether the Village received a fair trial. The Court of Appeals (Cabranes, Leval and Lohier) says the Village did not get a fair trial, so the Eastern District of New York must empanel another jury to decide if plaintiff was denied the Police Chief position in violation of the civil rights laws.
What went wrong at trial? We have to consider Fed. R. Evid. 701, which permits non-experts to testify in the form of an opinion only if it helps the jury to clearly understand the witness's testimony or in determining a disputed fact issue. But we cannot have these witnesses "tell the jury what result to reach." These witnesses are only allowed to help the jury draw its own conclusions. In 2000, the Court of Appeals said that
In employment discrimination actions, “Rule 701(b) bars lay opinion testimony that amounts to a naked speculation concerning the motivation for a defendant’s adverse employment decision.” Although witnesses may testify regarding “their own observations of the defendant’s interactions with the plaintiff or with other employees,” they may not opine as to the motives, racial or otherwise, underlying those interactions.
At this trial, one witness testified that "there might have been a component of race involved" in the decision to promote Bermudez over Barrella. But that was only this witness's "own personal opinion" based on other personnel decisions in the Village despite no personal knowledge of the qualifications of anyone involved in those personnel decisions. Another witness told the jury that Mayor Hardwick took race into account in making personnel decisions, but he "reached this conclusion without any personal knowledge of Hardwick's actual reasons."
In short, the District Court permitted Gros and Maguire to testify that Hardwick had recommended individuals for promotion based on their race, despite those witnesses’ admissions that they had no personal knowledge of Hardwick’s selection process and only the vaguest idea of the relevant candidates’ qualifications. Such testimony was not helpful to the jury in the sense required by Rule701(b), and the District Court’s decision to allow the jury to consider it was an “abuse of discretion.”
This was not harmless error, the Court of Appeals says, because it was a close case, and this bad testimony could have made the difference. The case was close because, while plaintiff had a better resume than Bermudez, the mayor may have had good non-discriminatory reasons for picking Bermudez over Barella. And federal law did not require the mayor to chose the most qualified person anyway. While the mayor said publicly that Bermudez was the Village's "first Hispanic" or "first Latino" police chief, the Court of Appeals says that "an employer's stated desire for diversity in the workplace does not, without more, establish discriminatory intent with respect to any particular employment decision." In addition,the civil rights laws do not "categorically forbid politicians from considering an appointment's political implications" or even to gain political favor from those appointments. Rather, "the urge of politicians to take credit for hiring or promoting members of hitherto underrepresented communities has often 'been a powerful means of achieving the social and political integration of excluded groups." (The Second Circuit actually cites a dissenting opinion from the late Justice Scalia for that proposition). In short, the Court says,
an otherwise lawful employment decision—one that was made for race‐neutral reasons or as part of a lawful affirmative‐action plan—does not become unlawful merely because the decision‐maker believed that some voters might evaluate that decision at least partly through the lens of identity politics.
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In 1999, the Eastern District of New York ruled (and the Second Circuit agreed) that the Nassau County strip search policy for its County jails violated the U.S. Constitution because the policy included searching people with misdemeanors without reason to believe the inmates had weapons. Years later, another lawsuit was brought against Nassau County because it was continuing to search people that way. Then the U.S. Supreme Court in 2012 ruled that the U.S. Constitution allows county jails to strip search all incoming inmates. So how does that Supreme Court ruling affect the second Nassau County strip search case?
The case is In Re Nassau County Strip Search Cases, a summary order decided on February 26. After the Supreme Court's 2012 ruling in Florence, Nassau County asked the district court to dismiss the case as to both plaintiffs' federal and state claims challenging the Jail's strip search policy. The reasoning was that the law has changed and that the Nassau County strip search case is no longer viable. The Court of Appeals says the County is correct as to the plaintiffs' federal law claims, but not the state law claims.
The Second Circuit (Cabranes, Pooler and Chin) says Florence does in fact repudiate the Second Circuit's 1999 ruling in Shane v. Ellison, which had placed strict limits on whether county jails could strip-search incoming inmates. Plaintiffs in this case have a first-class legal team that offered a variety of arguments to the effect that Florence does not affect Shain, but the Court of Appeals rejects those arguments, holding instead that Florence broadly allows jail officials to conduct these strip-searches, and that exceptions to that rule are narrow and inapplicable in this case.
But Florence does not affect plaintiffs' state law claims challenging the strip searches. Florence interpreted the U.S. Constitution, not the New York State Constitution. As the Second Circuit writes, "We fail to see how a Supreme Court decision interpreting any federal constitutional provision could ever control the meaning of an analogous state constitutional provision, at least absent extraordinary circumstances not present here." Rather, the Court says, state courts often interpreted state constitutional provisions more broadly than comparable federal constitutional provisions. As the district court noted in this case, "How New York courts will decide a case factually analogous to the one at bar under [the state Constitution] remains to be seen. That they might not adopt the Florence rationale is certainly well within the realm of possibility." This means that the current Nassau County strip search case will proceed.
This case started as a dispute among neighbors in Vermont. It winds up in the U.S. Court of Appeals because someone publicly insulted the plaintiffs, who sued for defamation and other torts, and the defendants responded with a motion to strike the claims under Vermont's anti-SLAPP law, which stands for strategic lawsuits against public participation.
The case is Ernst v. Carrigan, decided on February 22. I like gossip and petty grievances as much as the next guy. If you like that as well, you won't find it here. The appeal does not concern which side is a scam artist or a liar. It concerns whether the Second Circuit (Jacobs, Leval and Lynch) has jurisdiction to even hear the appeal.
The district court struck some of the plaintiffs' claims under the anti-SLAPP law, but other claims remained. The defendants appeal, arguing that all the claims against them should be dismissed under the anti-SLAPP law, and plaintiffs appeal as well, arguing that none of their claims should have been dismissed. Under the federal rules, you cannot appeal a district court's order unless the entire case is resolved one way or the other. There are exceptions to this rule, such as when the ruling resolves an important issue completely separate from the merits of the action. But if the order being appealed is too intertwined with the issues that remain in the district court, the order is not immediately appealable.
Claims involving the anti-SLAPP law in Vermont are not immediately appealable, because the claims are too entangled in the remaining claims for defamation. Indeed, the anti-SLAPP claim grows out of the defamation claim. In 2003, the Ninth Circuit reached the opposite holding in this context for claims involving anti-SLAPP motion, but the Second Circuit follows Supreme Court authority that it says points in the opposite direction.What it all means is that this neighborly brawl is sent back to the district court in Vermont for the trial judge to worry about it.
Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.