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Government Liability and Civil Rights

The latest court decisions and developments | Summer 2016

EDITORS:

Julie P. Apter Jonathan M. BernsteinBrian W. McElhenny

Goldberg Segalla’s Government Liability and Civil Rights Newsletter examines the latest court decisions shaping the landscape of civil rights, government liability, and employment practice for local governments, school districts, governmental agencies and officials, private entities, and insurance companies.

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IN THIS EDITION:

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• U.S. Supreme Court Cases

• Second Circuit Cases

• District Court Cases

• State Court Cases

• Recent Victories

• Meet Our New Team Members

U.S. SUPREME COURT CASES

The First Amendment and Employee Political Action HEFFERNAN V. CITY OF PATERSON, 194 L.Ed.2d 508, 2016 U.S. Lexis 2924 (U.S. April 26, 2016)

In this case, the U.S. Supreme Court held that a city’s mistaken belief about a police officer’s protected activity could form the basis of a constitutional violation, even though the police officer had not actually engaged in any protected activity. The facts of the case involved a detective who was a family friend of the candidate that was running against the incumbent mayor who appointed the chief of police and the detective’s supervisor. The detective was not involved at all in the campaign of the family friend, however, his bed-ridden mother asked him to place a sign for the family friend running against the incumbent mayor on her lawn. The detective arranged for a sign for his mother and was observed talking to the campaign workers while the sign was being placed on her lawn. Word spread in the police department that the detective was supporting the opposing candidate. The detective’s supervisors demoted him from detective to police officer because of his “overt involvement” in the opposing campaign. The detective sued and claimed the demotion violated his First Amendment rights because of the city’s mistaken view he had engaged in political speech.

A divided supreme court (6-2) held that even though the employee had not actually engaged in constitutionally protected activity, he could maintain a cause of action where his supervisors mistakenly believed him to be engaging in political speech. The court held that when an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983, whereas here, the employer makes a factual mistake about the employee’s behavior. The court did send the matter back to the lower court for examination of the police department’s facially neutral policy that prohibited police officers from overt engagement in any political campaigns in light of the First Amendment.

In the dissenting opinion, Justice Clarence Thomas noted that the court was creating constitutional claims for individuals who did not actually engage in constitutionally protected activity. The dissent noted that the decision seemingly conflicts with University of TX. Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013), which held that a retaliation claim requires a showing that protected activity was the cause-in-fact of the retaliation. The dissent

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further noted that a showing of harm to the plaintiff is not sufficient; it must be a specific type of harm.

This case appears to open the door for constitutional claims more broadly than the previous standard, which required the plaintiff to prove he or she was engaging in constitutionally protected conduct. The new standard will likely create additional lawsuits for municipalities and public employers.

The First Amendment and the Display of Signs CLYDE REED v. TOWN OF GILBERT, ARIZONA, et al., 135 S. Ct. 2218 (2015)

The Town of Gilbert in Arizona adopted a comprehensive code governing the display of outdoor signs. The sign code identified various categories of signs based on the type of information they convey and subjected each category to different restrictions. One of the categories of restrictions concerned signs that directed the public to a meeting of a nonprofit group. The code imposed more stringent restrictions on these signs than signs conveying other messages. The petitioner, a small church, erected signs directing street traffic to its church. The town deemed this a violation of their code.

The issue was whether the town’s restriction on speech was “content-based,” and if so, whether the restriction could withstand strict scrutiny.

The court acknowledged that government regulation of speech is content-based if a law applies to particular speech because of the topic discussed, or the idea or message expressed. In this situation, the town’s sign code was deemed to be content-based on its face because “[i]t defines temporary directional signs on the basis of whether a sign conveys the message of directing the public to church or some other qualifying event.” The court held that the town’s restriction failed the strict scrutiny test because it was not narrowly tailored. The prohibition on “directional signs” to preserve “aesthetic beauty” and “traffic safety” is under inclusive, the court held, because the code allowed countless other signs to be erected that created the same problem.

The Supreme Court therefore reversed and remanded for further proceedings.

The Second Amendment and Possession of Stun Guns JAIME CAETANO v. MASSACHUSETTS, No. 14-10078 (2016)

After many episodes of abuse and harassment by plaintiff’s ex-boyfriend, plaintiff obtained a stun gun for self-defense. One evening, plaintiff’s boyfriend waited for plaintiff outside of her work and began harassing her. Plaintiff, in response, cautioned her ex-boyfriend that she would deploy her stun gun if he did not leave her alone. The ex-boyfriend desisted and plaintiff never deployed the stun gun. Nevertheless, plaintiff was arrested, prosecuted, and convicted for possessing a stun gun. The Massachusetts Supreme Judicial Court affirmed plaintiff’s conviction, holding that a stun gun “is not the type of weapon that is eligible for Second Amendment protection” because it was “not in common use at the time of [the Second Amendment’s] enactment.”

The Supreme Court citing the Heller decision found that “the Second Amendment [indeed] extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

The pertinent Second Amendment inquiry, according to the court, is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today. While less popular than handguns, the court opined that in fact stun guns are widely owned and accepted as a legitimate means of self-defense across the country. The court held, therefore, that Massachusetts’ categorical ban of such weapons violated the Second Amendment.

SECOND CIRCUIT CASES

A Prisoner’s Privacy Rights During a Strip-Search AUDRA LYNN HARRIS v. SGT. MICHAEL MILLER, et al., Dkt. No. 14-2957 (2nd Cir. 2016)

Plaintiff, a female inmate at Bedford Hills Correctional Facility, refused to change into a smock in front of male correction officers. In an attempt to obtain privacy, plaintiff used the cotton stuffing from her mattress to cover the observation window in her cell, and then changed into her smock. After plaintiff changed into her smock, the male correction officers entered the observation room, knocked plaintiff to the ground and forcibly spread her legs to observe whether she was concealing any cotton from her mattress. Plaintiff sustained bruising and a three-inch cut.

The issue was whether the correction officers’ visual search of plaintiff coupled with the force applied violated plaintiff’s Fourth and Eighth Amendment rights.

Under the Fourth Amendment, the court determines whether the inmate had an expectation of bodily privacy and whether the officers had sufficient justification to intrude on plaintiff’s Fourth Amendment rights.

The court’s holding questioned defendants’ proposition that cotton constitutes contraband and, additionally, deemed strip searches conducted by the opposite sex to be highly disfavored absent exigent circumstances.

With respect to plaintiff’s Eighth Amendment excessive use of force claim, the court must decide whether the force was applied maliciously and sadistically to cause harm (subjective prong) and whether the force was sufficiently serious (objective prong).

The court held there to be a question of fact with respect to the subjective component of the analysis and, with respect to the objective component, the court found that the forcible opening of plaintiff’s legs to search for cotton, coupled

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with plaintiff’s injuries, may rise to the level of being objectively unreasonable.

The court vacated the district court judgment and remanded for further proceedings. Qualified Immunity When Police Officer Makes False Arrest MYERS v. PATTERSON, Docket No. 14-2554 (2nd Cir. 2016)

After multiple attempts by Child Protective Services (CPS) case workers to speak with plaintiff and her son, defendant police officer arrested plaintiff and sent her for a psychological evaluation. The basis for the arrest was due to plaintiff’s refusal to allow CPS case workers to interview her son and based on plaintiff’s behavior being “very uncooperative,” “irrational,” and “strange.”

Plaintiff subsequently brought an action in federal court for the alleged unlawful arrest and detainment in violation of her Fourth and 14th Amendment rights. The district court granted the defendant police officer qualified immunity determining that arguable probable cause existed for the arrest and seizure.

In order to handcuff and detain someone for mental health reasons, an officer must have probable cause to believe that the person presented a risk of harm to himself or others. In the false arrest context, qualified immunity protects an officer if arguable probable cause existed for the arrest.

On appeal, the Second Circuit held that the record provided insufficient detail to make a probable cause determination. Although the CPS caseworker notes describe plaintiff as being “annoyed,” “very uncooperative,” and “irrational,” the notes do not say that plaintiff appeared dangerous.

The Second Circuit remanded for further development of the record and reconsideration of the question of qualified immunity in light of the expanded record.

Pregnancy-Related Discrimination Under Title VII ANN MARIE LEGG V. ULSTER COUNTY, et al., 2016 WL 1637993 (2nd Cir. 2016)

Plaintiff, a corrections officer, became pregnant and requested light duty work at her doctor’s recommendation. Although the sheriff permitted plaintiff to work light duty for a time, plaintiff was ultimately required to work regular duty. Plaintiff thereafter brought an action in federal district court alleging that the county unlawfully discriminated against her under Title VII on the basis of her pregnancy when it denied her request for light duty.

The district court granted defendant’s motion for judgment as a matter of law, holding that all employees who had “outside line-of-duty disabilities” were treated the same under the county’s light duty policy.

On appeal, the Second Circuit held that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions. Because, according to the Second Circuit, plaintiff demonstrated that the county provided light duty accommodations to other employees who were similar in their ability or inability to work, the court held that plaintiff established a prima facie case of discrimination.

The Second Circuit vacated the district court’s judgment as to plaintiff’s pregnancy discrimination claim and remanded for further proceedings.

Qualified Immunity and the Presence of Video Footage HYMAN V. ABRAMS, 630 Fed. Appx. 40, 41, 2015 U.S. App. LEXIS 19871, *1 (2nd Cir. 2015)

The issue is whether a deputy sheriff is entitled to qualified immunity when video footage ostensibly contradicts plaintiff’s allegation that the deputy sheriff assaulted plaintiff.

The Court of Appeals held that the deficiency in the clarity of the video footage will result in a question of fact

for a jury. The court thus denied the request for qualified immunity.

DISTRICT COURT CASES

Computing Damages for False Arrest and False Imprisonment DAVINO WATSON v. THE UNITED STATES OF AMERICA, 14-CV-6459, 2016 U.S. Dist. LEXIS 23250 (E.D.N.Y. 2016)

Plaintiff was falsely arrested and imprisoned for 27 days by U.S. Immigration and Customs Enforcement (ICE) officials because they believed plaintiff was an illegal alien, which he was not. Plaintiff subsequently brought an action against the United States under the Federal Tort Claims Act for various causes of action, including for false arrest and false imprisonment. An individual subjected to a false arrest is entitled to two types of compensatory damages: (1) for loss of liberty and (2) for physical and emotional distress.

Since there were no aggravating factors (e.g. physical abuse, public humiliation, or malice) in this case, the court held that plaintiff’s award for false arrest should be on the lower end of the relevant awards range. The court awarded plaintiff $15,000 for the false arrest.

With respect to false imprisonment, damages can be either general or special. General damages include loss of liberty and humiliation or mental suffering, while special damages include physical discomfort, injury to health, lost employment opportunities, and injury to reputation.

Plaintiff’s false imprisonment prevented him from exercising the liberty he was preparing to enjoy following his successful completion of the New York Shock Incarceration Program and left him angry, panicked, despondent, and depressed, yet the conditions in which plaintiff was detained in were not severe. The court therefore awarded plaintiff $2,000 per day for 27 days ($54,000) and $500 per day

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for emotional injury incurred during this period. The court did not award plaintiff damages for future pain and suffering.

Voting Rights Act and Redistricting ANNE POPE V. COUNTY OF ALBANY, 11-cv-0736, Dkt. No. 427 (N.D.N.Y. 2015)

The issue is whether the county’s creation of four majority-minority districts with more than 50 percent voting age minorities in each district resulted in vote dilution in violation of the Voting Rights Act. The court held vote dilution occurred. Attorneys’ Fees in a Voting Rights Act Case ANNE POPE V. COUNTY OF ALBANY, 11-cv-0736, Dkt. No. 454 (N.D.N.Y. 2015)

The issue is whether more $1,000,000 in attorneys’ fees is reasonable compensation to plaintiffs’ attorneys in a Voting Rights Act case spanning over four years. The court ruled that $1,602,886.75 in attorneys’ fees and $127,532.05 in costs were reasonable.

STATE COURT CASES

Municipalities May Argue “Storm-in-Progress” Defense SHERMAN V. NEW YORK STATE THRUWAY AUTHORITY, 27 N.Y.3d 1019 (May 5, 2016)

An action brought by a New York State Trooper against the New York State Thruway Authority seeking damages for personal injuries was dismissed by the Appellate Division’s Second Department and upheld by the Court of Appeals. The plaintiff sought damages for a slip and fall that occurred during a winter storm. The Court of Appeals, the highest court in New York State, held that the New York State Thruway Authority would be entitled to judgment as a matter of law in this action, because no issues of fact existed, since uncontroverted evidence was submitted documenting that a storm was ongoing at the time the trooper fell right outside his barracks. The dismissal was based on the fact that the New York State Thruway Authority’s duty to abate the icy conditions had not yet arisen due because the storm was still occurring. Town Did Not Perform Adequate Environmental Impact Study in Approving New Walmart IN THE MATTER OF WELLSVILLE CITIZENS FOR RESPONSIBLE DEVELOPMENT, INC. V. WAL-MART STORES, INC. ET AL, 33 N.Y.S.3d 653, 2016 N.Y. App. Div. LEXIS 4693 (4th Dept. June 17, 2016)

The Fourth Department in New York held that a town failed to take the requisite hard look at the environmental impact of the construction of a Walmart store and annulled the town’s negative (impact) declaration. The court held that the effects of the construction upon wildlife, community character, and surface water were not adequately investigated. This holding was based on the premise that judicial review of an agency’s determination is limited to whether the determination was made with lawful procedure. Much of the study upheld scrutiny; however the court held that the

portion involving the study regarding impact on wildlife, community character, and surface water was inadequate and further study must take place prior to allowing the construction to proceed. Therefore, the opposition to the project was allowed to continue until such time as the proper study is performed.

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RECENT VICTORIES Julie P. Apter and Meghan M. Brown, attorneys in our Buffalo office, successfully obtained summary judgment in a federal court action brought against a local police agency. The agency, its chief, and two individual officers were sued for a variety of claims stemming

from a protest that was taking place in front of a bank. The bank and its security company were also sued for malicious prosecution under state law claims. The action stemmed from the arrest of one of the active protestors who alleged that his constitutional rights were violated as he was participating in a protest on public property. The protest commenced on the private property of the bank and made its way to public property. The plaintiff became physical with one of the officers, and numerous witnesses provided statements that the protest became violent. When attempting to move the protestors onto public property, pursuant to verbal requests, the plaintiff shoved one of the officers and refused to abide by orders. The plaintiff took off; the officers gave chase and were eventually able to subdue the plaintiff by the use of pepper spray and a baton. The federal court held that the officers were immune from liability as they acted within the scope of their employment as police officers. Further, the court agreed with the agency that the injuries resulting from the pepper spray and hand cuffing were de minimis; therefore any cause of action for assault and battery failed.

Danielle R. Schilling, a partner in our Garden City office, successfully defended a parks department

regarding damage to property occurring when a tree fell as a result of Superstorm Sandy. The plaintiff argued that there were discussions with the Board of Trustees involving the trees in its park, and that mention was made at a board meeting that the “place should be cleaned up … trees are not healthy.” In support of

the motion, Danielle provided evidence that there had never been any notice given to the park district regarding any issues with the trees, and that the storm was an “act of God” for which no liability attached. The New York State Supreme Court judge in Nassau County agreed and dismissed the complaint in its entirety.

Scott P. Eisenberg, an associate in our Garden City office, obtained summary judgment in favor of

a town with respect to another property damage claim. The plaintiffs sued the town and neighbors for damage to real property as a result of storm water runoff and flooding occurring on their property. They alleged that the neighbors illegally removed a large number of trees that resulted in regrading the elevation causing erosion, storm water runoff, and flooding. Although the court agreed with the plaintiffs with respect to their claims against the neighbors, the court dismissed the action against the town, holding that the town cannot be held liable for flooding caused by a sewer system, the town is immune from liability arising out of claims involving negligent design of a sewerage or drainage system, and the town did not receive prior written notice of any alleged dangerous condition.

Molly M. Ryan, an associate in our Syracuse office, obtained a voluntary dismissal of a high-

profile, contentious federal lawsuit after discovering video evidence that proved the four plaintiffs fabricated the allegations they made against a city in central New York and one of its police officers. Just hours after the shooting in Ferguson, Missouri, an unusually high number of crimes took place in the central New York city, including two arsons. Members of the city’s police department were at the scenes of the blazes and saw four individuals on bicycles circling around one of the arsons. Because arsonists tend to return to the scene of their

crime to see their handiwork, the police attempted to ask the group on bikes who they were and what they were doing. But the group fled, ultimately dumping their bikes, fleeing on foot, and splitting into smaller groups. A plain-clothes officer in an unmarked vehicle located two of them running, yelled that he was police, and ordered them to stop. Eventually, they did stop. The officer never touched the two individuals but he did unholster his firearm as he waited for backup to arrive.

The two individuals’ mothers immediately arrived on the scene and stated that their sons were high school students. The boys were released to their mothers unharmed. Immediately thereafter, the boys and their mothers began a media campaign in which they claimed that they were just boys out riding bikes, never near the scene of any arson, and that they were African Americans who were the victims of racial profiling by a white plain-clothes police officer. They claimed they ran because they were afraid for their lives, they didn’t know the man was a police officer, and they never saw any uniformed police officers or marked police vehicles.

After the two boys and their mothers filed suit, they produced a short video less than one-minute long that one of the mothers had taken with her phone at the scene. After questioning at depositions, it became clear that substantially more video existed, but that plaintiffs had withheld it during discovery. The plaintiffs claimed they no longer had the video on their now lost or broken phone, but the Goldberg Segalla team determined that the video existed on the iCloud and obtained the video, which showed the plaintiffs at the scene explaining that they had in fact been riding their bikes at one of the arsons and knowingly fled from marked police vehicles. As soon as the video surfaced, the plaintiffs tried to save face by making a non-monetary settlement demand to the city, but the city refused to settle. The plaintiffs then promptly dismissed their lawsuit.

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Government Liability and Civil Rights | Summer 2016

Kristin Klein Wheaton has more than 20 years of experience and has held a variety of positions in the public and private sector. Most recently,

she was the Executive Vice President for Legal Affairs at a large community college in Western New York. There, she coordinated and represented the school in all of its legal matters, as well as union matters, including grievances, arbitration, negotiations and labor management meetings, tort and employment litigation, administrative proceedings, and more. Kristin also spent several years in the Erie County Attorney’s Office, as an Assistant County Attorney, a First Assistant County Attorney, and the Acting County Attorney. Among other duties, she frequently appeared before the New York State Public Employment Relations Board, negotiated settlements with unions on employment issues, represented the county and its employees before a variety of state and federal courts, and acted as in-house counsel for Erie County Commissioners. She also has extensive experience handling municipal litigation, including civil rights and First Amendment claims, negligence claims, and Article 78 proceedings.

In 2015, Kristin was named one of Western New York’s Legal Elite by Buffalo Business First and the Buffalo Law Journal.

Christopher Maugans concentrates his practice in employment and labor law and complex commercial litigation. His background

and experience includes providing legal counsel to the human resources department within a large community college in Western New York, where he helped draft and negotiate collective bargaining agreements, investigated grievances, and led internal investigations into employee attendance, performance, and harassment allegations. He also handled Freedom of Information Law requests, reasonable accommodation requests under the Americans with Disabilities Act, and issues involving the Family Medical Leave Act.

Chris concurrently earned his M.B.A. and J.D. from the State University of New York at Buffalo, where he earned several prestigious fellowships and scholarships. During law school, he was a judicial law clerk with the Hon. Frederick Marshall and an extern with the United States Equal Opportunity Commission’s Buffalo office. He also worked as a law clerk for a global private food manufacturing company, where he drafted employment agreements, non-disclosure agreements, and edited employee handbooks.

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