The Warshawsky Law Firm Blog

Wednesday, September 23, 2015

Representing College Students Wrongly Accused Of Sexual Misconduct

In recent years, there has been an explosion of sexual misconduct cases at our nation's colleges and universities.  Many commentators ascribe this increase to the U.S. Department of Education's "Dear Colleague Letter" that was issued in April 2011.  The "letter" actually is a "significant guidance document" that advises colleges and universities about their obligations under Title IX of the Education Amendments of 1972 -- specifically, their "responsibility to take immediate and effective steps to end sexual harassment and sexual violence."        

While there is considerable debate about the true incidence of sexual assault among college students,  in their zeal to address this problem, colleges and universities have trampled on the rights -- and ruined the futures -- of many students (invariably male) who have been wrongly accused and "convicted" (by the schools, not the courts) of sexual misconduct.  This is a complicated legal issue, but there is no question that the student disciplinary systems currently in place at many colleges and universities do not comport with basic principles of due process and equal protection.

Is it possible for a college student wrongly accused of sexual misconduct to "fight back"?  Yes, but again the issue is complicated.  To date, there have been at least 86 lawsuits filed across the nation challenging these student disciplinary proceedings.  See here for a listing of these lawsuits.  So far, most of the courts that have ruled on these lawsuits have sided with the schools, but there have been some rulings favorable to the students.   Legally, this is an evolving area, with different causes of action (due process, equal protection, Title IX, breach of contract, defamation, and others) being pursued to accomplish the same goals:  to exonerate the student of wrongdoing, to restore his academic standing, and to obtain compensation for the harms done to him.

At The Warshawsky Law Firm we are available to represent college students who have been wrongly accused of sexual misconduct.  We can assist with pending student disciplinary proceedings and we can represent students in court to challenge the unfair outcomes in these cases.  Because these cases are legally complex and loaded with political agendas, it is important to retain experienced, sophisticated counsel for these matters.      

For more information about representing college students wrongly accused of sexual misconduct, please contact The Warshawsky Law Firm today.  

Monday, September 21, 2015

A Tale Of Two Cases: Why Some Employment Discrimination Plaintiffs Win And Others Lose

At The Warshawsky Law Firm, we handle a wide variety of employment discrimination cases.  When first meeting a prospective client, perhaps our most important task is evaluating the strengths and weaknesses of a potential lawsuit.  Indeed, we usually are asked by the client whether he/she "has a case" and "what are the chances of winning."  This is a complicated question that can be difficult to answer based on the limited information and documentation that the client usually has in his/her possession.  Often times the full picture of an employment situation does not emerge until after the lawsuit has been filed and the parties engage in discovery.

The central question in every discrimination case is whether the plaintiff can prove that the employer was motivated by unlawful discriminatory bias, hostility, or animosity.  For example, in a wrongful termination case, was the plaintiff fired because of his/her race or age or religion, etc.?  While the plaintiff may "believe" that he/she was discriminated against by the employer, this is not good enough in court.  To be able to win a lawsuit in court, the plaintiff must have objective evidence that shows that the employer acted from a discriminatory motive.

What kind of evidence?  While each case is different and various factual circumstances can raise an inference of unlawful discrimination, the most common types of evidence that courts look for are discriminatory comments and differential treatment of similarly situated employees.

Discriminatory comments are just that -- spoken or written comments that demonstrate discriminatory animus.  For example, derogatory comments about a person's race or sex or disability, etc.  Comment evidence is the most important type of evidence in an employment discrimination case.   

Differential treatment of similarly situated employees means, for example, that the employer treats black and white employees differently in the same context (for example, when being disciplined for alleged infractions of workplace rules).  This is the second most important type of evidence -- showing that employees are treated differently for no reason other than their race, sex, disability, etc.

Two recent decisions by U.S. District Judge John Gleeson of the Eastern District of New York (a highly respected jurist) illustrate these basic principles. 

The first case is Charles Krugler v. MTA New York City Transit Authority, et al., Case No. 12-CV-2900.  The second case is Russell Herling v. New York City Department of Education, et al., Case No. 13-CV-5287. 

In the Krugler case, the plaintiff was a 57-year old transit employee who alleged that his employer had discriminated against him on the basis of age by rejecting him for 18 promotions that he had applied for between 2001 and 2011.

In a decision issued on September 10, 2015, Judge Gleeson granted the defendants' motion for summary judgment and dismissed the lawsuit.  Why?  Because the plaintiff did not have any evidence, other than his own opinion, that he had been discriminated against based on his age.  There were no discriminatory comments, and the evidence showed that older employees had been interviewed for and in some cases selected for the positions in question -- as Judge Gleeson explained, "[t]his is persuasive evidence that the defendants did not discriminate against Krugler based on his age."  Moreover, "Krugler was eventually promoted to the position of AGS, one of the positions he claims he was passed over for because of his age."  Based on these facts, Judge Gleeson concluded "as a matter of law" that "age discrimination played no role in the failure to promote Krugler."

In the Herling case, the plaintiff was a white Jewish physical education teacher at a public high school in Brooklyn who alleged that his employer had discriminated against him on the basis of race and religion by disciplining him for workplace infractions, giving him an unsatisfactory rating, and denying him opportunities for additional pay.

In a decision also issued on September 10, 2015, Judge Gleeson denied the defendants' motion for summary judgment and allowed the plaintiff's case to proceed to trial.  Why?  Unlike the plaintiff in the Krugler case, the plaintiff in the Herling case offered objective evidence of his supervisor's discriminatory animus.  This evidence included several discriminatory comments and specific examples of non-white and non-Jewish teachers receiving preferential treatment.  For example, the plaintiff showed that black employees who committed the same alleged rules infractions (e.g., being late to work, not submitting student grades properly) were not disciplined for the same or worse conduct for which he was disciplined.  Judge Gleeson agreed with the plaintiff that this evidence was sufficient to raise an inference of discrimination.  Although the defendants offered various non-discriminatory reasons for the plaintiff's workplace treatment, Judge Gleeson ruled that the plaintiff's evidence was strong enough to require a jury to decide whether or not he had been discriminated against.

The outcomes in these two cases highlight the crucial importance in an employment discrimination case for the plaintiff to present objective evidence -- usually in the form of discriminatory comments and/or differential treatment of similarly situated employees -- that the employer was motivated by discriminatory animus.  Without such evidence, it is very difficult for a plaintiff to persuade a court to allow the case to go to trial.


If you or someone you know has been the victim of workplace discrimination, please contact The Warshawsky Law Firm today.

Thursday, September 17, 2015

The Warshawsky Law Firm Files Excessive Force Case Against NYPD On Behalf Of Young African-American Man

The Warshawsky Law Firm has filed a federal civil rights lawsuit against the City of New York and two individual NYPD officers on behalf of a young African-American man who was brutally assaulted and falsely arrested by police officers in the Meatpacking District in Manhattan.  The lawsuit was filed in the U.S. District Court for the Southern District of New York.

The events in the case took place in February 2014.  The plaintiff and several of his friends (all African-Americans) were leaving a nightclub when they noticed a crowd of people (predominately white) forming around two cab drivers who were having an argument.  The plaintiff and one of his friends walked over to see what was happening.  Shortly thereafter, two police officers arrived on the scene and ordered the crowd to disperse.  The plaintiff and his friend promptly complied with the officers' order and started walking away towards the sidewalk.

While the plaintiff was walking away, without warning or provocation, one of the police officers forcefully shoved him in the back and shouted, “I told you to go.”  The plaintiff was startled and stumbled, then turned around with a perplexed look on his face and asked his friend, “Why is this guy pushing me?"  There was no justification for the officer to shove him.  It appears that the officer (who is white) intentionally singled out and assaulted the plaintiff because he is African-American.

Without warning or provocation, the officer then shoved him again, this time even more forcefully and on the chest.  This caused the plaintiff to start falling backwards and he instinctively reached out and grabbed the officer's jacket to try to stop himself from falling.  The officer then grabbed the plaintiff by his arms and shoulders and starting lifting him up.  The plaintiff believed that the officer was helping him to his feet, and he apologized for grabbing his jacket, but then the officer tried to throw him on the ground, the two men became tangled, and they both fell to the street.

The physical contact between them was initiated by the police officer, without legal justification and for malicious purposes.  The plaintiff did nothing more than try to prevent himself from falling.  He did not hit, trip, or throw the police officer. 

After the plaintiff and the officer fell to the ground, additional police officers rushed over and started assaulting him.  The plaintiff was pushed, grabbed, punched, kicked, and struck with batons, while the officers cursed at him.  At one point while he was being assaulted, the plaintiff felt a police officer place a knee in the middle of his back and then lift up his head and torso from behind. While he was being held in this position, he saw the first police officer walk up to him and knee him twice in the face, breaking his nose and causing extensive bleeding and bruising. Then he was pulled to his feet and placed under arrest on bogus charges of assaulting a police officer, obstructing governmental administration, and disorderly conduct.  The charges eventually were dismissed. 

This is a very serious case of police abuse, involving an unprovoked and unjustified assault, excessive force, serious personal injuries, and false arrest and malicious prosecution based on trumped-up charges designed to cover-up and excuse the police officers' gross misconduct and violation of the plaintiff's constitutional rights. 

This case originally was handled by the law firm of Rubenstein & Rynecki, who filed the case in state court in October 2014 but then allowed the case to flounder for many months until our client came to us looking for lawyers who would be committed to his case.  The Warshawsky Law Firm will fight this case aggressively, so our client receives the justice and compensation due to him for the harms he suffered by the police.    


If you or someone you know has suffered abuse at the hands of the police, please contact The Warshawsky Law Firm today.

Wednesday, September 09, 2015

The Warshawsky Law Firm Files False Arrest Lawsuit Against Toys "R" Us

On August 27, 2015, The Warshawsky Law Firm filed a false arrest lawsuit against Toys "R" Us on behalf of a former Toys "R" Us store manager who was wrongly accused of stealing cash from the store safe.  The case was filed in the U.S. District Court for the Eastern District of New York.

As alleged in the complaint (names redacted for privacy):

This is an action for false arrest, malicious prosecution, and related causes of action, in violation of New York state law, arising from the plaintiff's arrest on August 29, 2014, based on a false criminal complaint made to the police by the Regional Asset Protection Manager for Toys “R” Us.

The plaintiff worked as the store manager for the Toys “R” Us store in Bayshore, New York.  The company wrongly and maliciously accused the plaintiff of stealing a cash deposit bag from the store safe, despite surveillance videotape evidence (produced by Toys “R” Us during the criminal case) showing (1) the plaintiff depositing the cash bag into the safe at the time of the alleged theft and (2) the cash bag later being removed from the safe by an assistant store manager – conclusively demonstrating that the theft did not occur by the plaintiff.

The company's investigation into the theft was negligent, reckless, unreasonable, unprofessional, and incompetent.  The investigator never interviewed the plaintiff about the theft. He overlooked and/or ignored exculpatory evidence concerning the plaintiff.  He never considered the assistant store manager – the last person seen in possession of the stolen cash bag – a potential suspect.

Based on the evidence available to the investigator at the time he reported the theft to the police, there was no probable cause to accuse the plaintiff of the crime.  Nevertheless, based on his complaint, the plaintiff was arrested and charged with felony grand larceny; he lost his job and remained unemployed for one year; he and his family suffered great personal and financial distress; and he was prosecuted for nearly 10 months before the charges against him were dismissed by the Suffolk County District Attorney’s Office.

By this action, the plaintiff demands compensatory damages for the harms he has suffered as a result of the defendant’s tortious conduct (in an amount no less than $500,000), punitive damages to punish and deter the defendant from engaging in similar tortious conduct in the future (in an amount no less than $500,000), attorney's fees and costs, and all available legal and equitable relief.  The plaintiff demands trial by jury.


If you or someone you know has been the victim of a false arrest, please contact The Warshawsky Law Firm today.

Friday, September 04, 2015

The Warshawsky Law Firm Wins "Not Guilty" Verdict For Client Falsely Accused Of Violating Order Of Protection

Not guilty.

That was the jury's verdict yesterday in a criminal case in Suffolk County District Court in Central Islip, New York.  The Warshawsky Law Firm represented the defendant, who had been falsely accused by a former boyfriend of violating an order of protection by making two telephone calls to his residence and leaving a message on his answering machine.  The specific crime charged was criminal contempt in the second degree (P.L. 215.50 (3)).  The former boyfriend had tried to set up the defendant, to get back at her after his wife (who our client did not know about) discovered he was having an affair.

Steven M. Warshawsky was lead counsel on the case.  On cross-examination of the prosecution's witnesses -- the arresting police officer and the former boyfriend -- Mr. Warshawsky demonstrated to the jury that there was no evidence substantiating the accusation against our client.  There were no telephone records of the alleged calls, and the answering machine message had been digitally date-stamped with a completely different day and time than the date that the alleged calls were made.  The jury saw through the implausible excuses offered by the witnesses for these gaps and discrepancies in the prosecution's evidence.  The jury deliberated only 30 minutes before returning their "not guilty" verdict.

We are extremely happy for our client, who has been living with the burden and stress and fear of this hanging over her head for a year and a half.

Justice was done.        

Monday, August 03, 2015

Second Circuit Adopts Pro-Employer "Primary Beneficiary" Test For Unpaid Internships

In a previous blog post, I discussed whether unpaid internships for private businesses run afoul of federal and state wage laws.  At that time (September 2013), the prevailing view was that such internships were prohibited by the U.S. Department of Labor's six-factor test (DOL Fact Sheet #71). 

The DOL test was applied in the case of Glatt v. Fox Searchlight Pictures, Inc., by the federal district judge who ruled that the plaintiff interns who worked without pay for Fox Searchlight Pictures were "employees" entitled to minimum wage and overtime under federal and state wage laws.  On Appeal, however, this ruling was reversed by the U.S. Court of Appeals for the Second Circuit (which has jurisdiction over federal courts in New York, Connecticut, and Vermont).

In its decision, issued on July 2, 2015, the Second Circuit held that the DOL's six-factor test is not controlling and instead adopted a "primary beneficiary" test that examines, under the totality of the circumstances, "whether the intern or the employer is the primary beneficiary of the relationship."  This test is much more favorable to employers than the DOL's test.  The Second Circuit remanded the case for a new decision by the district judge using this new legal standard.

The Second Circuit explained the "primary beneficiary" test as follows (legal citations omitted):

The primary beneficiary test has two salient features. First, it focuses on what the intern receives in exchange for his work.  Second, it also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer.

Although the flexibility of the primary beneficiary test is primarily a virtue, this virtue is not unalloyed.  The defendants’ conception of the primary beneficiary test requires courts to weigh a diverse set of benefits to the intern against an equally diverse set of benefits received by the employer without specifying the relevance of particular facts.  In somewhat analogous contexts, we have articulated a set of non-exhaustive factors to aid courts in determining whether a worker is an employee for purposes of the FLSA.

In the context of unpaid internships, we think a non‐exhaustive set of considerations should include:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation.  Any promise of compensation, express or implied, suggests that the intern is an employee -- and vice versa.

2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands‐on training provided by educational institutions.

3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Applying these considerations requires weighing and balancing all of the circumstances.  No one factor is dispositive and every factor need not point in the same direction for the court to conclude that the intern is not an employee entitled to the minimum wage.  In addition, the factors we specify are non‐exhaustive -- courts may consider relevant evidence beyond the specified factors in appropriate cases.

Even more important for employers than the wording of this new "primary beneficiary" test is the Second Circuit's repeated emphasis that the test requires "a highly individualized inquiry."  This is legal lingo for "cannot be proved through common, generalized, class-wide evidence."  Consequently, although the Second Circuit coyly declined to answer the question in its opinion, this new test probably does not lend itself to collective actions (under the FLSA) and class actions (under state wage laws).  As a result, plaintiffs will have to pursue their claims individually and not as part of larger lawsuits.  While this will protect employers from expensive litigation, it also will disincentivize interns with meritorious but small claims from pursuing compensation in court.

Not surprisingly, the employment defense bar is very happy with the Second Circuit's decision.  For management-side commentary on this decision, see, e.g., here (Orrick), here (Littler), and here (Seyfarth Shaw).

If you or someone you know has worked as an unpaid intern and would like more information about the possibility of obtaining compensation under federal and state wage laws, please contact The Warshawsky Law Firm today.    

Monday, July 27, 2015

Document Review Attorneys May Be Entitled to Overtime Pay

Last week, the U.S. Court of Appeals for the Second Circuit issued a potentially groundbreaking decision, ruling that a contract attorney who worked on a document review project for Skadden Arps sufficiently alleged that his job duties did not constitute "the practice of law," thereby entitling him to overtime compensation under the federal Fair Labor Standards Act.  The case is David Lola v. Skadden Arps Slate Meagher & Flom, LLP, and Tower Legal Staffing, Inc., Appeal No. 14-3845-cv (decided July 23, 2015).  For news coverage of the decision, see here.

The basic facts of the case are as follows:  The plaintiff was hired as a contract attorney through Tower Legal Staffing to work on a document review project for Skadden Arps in connection with multi-district litigation pending in the U.S. District Court for the Northern District of Ohio.  The document review project was conducted in North Carolina.  The plaintiff was an attorney admitted to practice in California.  The plaintiff worked 45-55 hours per week and was paid $25 per hour.  The issue was whether the plaintiff was entitled to overtime pay under the FLSA (time-and-a-half for all hours over 40 in a workweek) for his work on the project.

The U.S. Department of Labor regulations implementing the FLSA exempt from the overtime requirement "[a]ny employee who is the holder of a valid license or certificate permitting the practice of law . . . and is actually engaged in the practice thereof."  See 29 C.F.R. § 541.304.  (Note:  The regulations have a different exemption rule for lawyers, who do not fall under the common exemption rule for "professional employees."  For a summary of the exemption rules, see here.)  The question in the Lola case, therefore, was whether the plaintiff was "actually engaged in the practice [of law]" when he was performing document review.

The plaintiff alleged that his work was closely supervised and that "his entire responsibility  . . . consisted of (a) looking at documents to see what search terms, if any, appeared in the documents, (b) marking those documents into the categories predetermined by Defendants, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols that Defendants provided."  The defendants provided him with the documents to review, the search terms to use, and the procedures to follow if the search terms appeared in the documents.  Based on these facts, the plaintiff argued that he was not engaged in the practice of law (and therefore was owed overtime) because he exercised no independent legal judgment in performing his document review work.

The district court below had disagreed and granted the defendants' motion to dismiss.  The district court had held that document review per se constitutes the practice law, applying North Carolina law because that was where the plaintiff worked.  This decision was widely heralded as a victory for large law firms that routinely employ contract attorneys to conduct document review. 

The Second Circuit reversed.  As the Second Circuit noted, under North Carolina law, the practice of law requires "at least a modicum of independent legal judgment."  In this case, accepting the plaintiff's allegations as true (as required on a motion to dismiss), the Second Circuit held that the plaintiff "adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants."  The Second Circuit continued:  "A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided.  The parties themselves agreed at oral argument that an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law."

The case has been remanded to the district court.  The plaintiff now has an opportunity to prove his allegations in court and to obtain the overtime wages owed to him.

If you or someone you know has worked as a document review attorney, you may be entitled to overtime pay.  Please contact The Warshawsky Law Firm today.             

Wednesday, June 03, 2015

U.S. Supreme Court Clarifies Broad Scope Of Religious Protection Under Title VII

On June 1, 2015, the U.S. Supreme Court issued its eagerly anticipated decision in the case of Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., which presented the question whether an applicant for employment is required to inform the employer of her need for a religious accommodation in order to be protected by Title VII of the Civil Rights Act of 1964.  The Court (in an 8-1 decision written by Justice Scalia) said no, holding that "[a]n employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."  This important decision clarifies the broad scope of religious protection under Title VII.

Title VII is a federal statute that prohibits discrimination in employment based on race, color, religion, sex, or national origin.  Title VII applies to employers throughout the country with at least 15 employees, including federal, state, and local government agencies.  Under Title VII, it is an “unlawful employment practice” for a covered employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”  42 U.S.C. § 2000e-2(a).

In the Abercrombie case, the plaintiff was a practicing Muslim who applied for a position in an Abercrombie store.  She was wearing a traditional headscarf during her interview.  She was interviewed by an assistant store manager, who considered the plaintiff qualified to be hired, but was concerned that the headscarf would conflict with the company's "Look Policy," which strictly prohibited employees from wearing "caps" at work.  The assistant store manager raised this concern to the store manager, who provided no guidance, then she spoke with the district manager, who told her that the headscarf would violate the Look Policy.  The assistant store manager mentioned that she believed the plaintiff wore the headscarf because of her faith, but the district manager said that the Look Policy applied to all headwear, religious or otherwise, and he decided that the plaintiff could not be hired.

The U.S. Equal Employment Opportunity Commission (EEOC) filed the lawsuit on behalf of the Muslim applicant, claiming that the company's Look Policy violated the plaintiff's rights under Title VII.  The district court ruled in favor of the plaintiff, but the Tenth Circuit reversed on the grounds that the Look Policy was a "neutral" job requirement.  The EEOC appealed to the U.S. Supreme Court, which ruled in favor of the plaintiff.

The Supreme Court explained that Title VII by its terms protects "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate" the employee's religious observance or practice "without undue hardship on the conduct of the employer's business."  See 42 U.S.C. § 2000e(j).  In other words, Title VII imposes an affirmative duty on employers to reasonably accommodate an employee's religious practices, unless doing so would impose an "undue hardship" on the business.  Contrary to the company's position, the Supreme Court emphasized that "Title VII does not demand mere neutrality with regard to religious practices - that they be treated no worse than other practices.  Rather, it gives them favored treatment, affirmatively obligating employers not 'to fail or refuse to hire or discharge any individual . . . because of such individual's' 'religious observance and practice'."  Consequently, "Title VII requires otherwise-neutral policies to give way to the need for an accommodation."

Based on these principles, the outcome in the Abercrombie case was clear:  The company could not refuse to hire the plaintiff based on its Look Policy merely because she wore a Muslim headscarf.  The Court did not decide if accommodating the plaintiff's headscarf by making an exception to the company's Look Policy would impose an "undue burden" on Abercrombie; that issue will be considered by the lower courts on remand (unless the case is settled). 

Importantly, the Court held that the employer does not have to "know" as a fact that the employee needs a religious accommodation for the protections of Title VII to apply.  Even a mere suspicion or belief is enough, because the statute focuses on the employer's motive not its knowledge.  As the Court explained:

"Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge.  Motive and knowledge are separate concepts.  An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed."

"Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward:  An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.  For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays.  If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII."

Title VII's "disparate treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice.  A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability."

In sum, under Title VII an employer may not base employment decisions on an applicant's or employee's known or suspected religion, including beliefs, observances, and practices, and must accommodate an employee's religion, unless doing so would impose an undue burden on the business.

For additional commentary on the Abercrombie decision, see here (SCOTUS blog) and here (Politico).

If you or someone you know has been the victim of religious discrimination in the workplace, please contact The Warshawsky Law Firm today. 

Monday, May 18, 2015

Noteworthy Cases: Higginbotham v. City of New York (SDNY)

A recent decision by Judge P. Kevin Castel of the U.S. District Court for the Southern District of New York upholds the First Amendment right to videotape the police (in certain circumstances) and highlights other important legal issues arising in false arrest cases. 

In the case of Douglas Higginbotham v. City of New York, 14-CV-8549 (PKC) (SDNY), the plaintiff is "a freelance video-journalist for TV New Zealand" who was covering the Occupy Wall Street protests in the fall of 2011.   The defendants are three police officers and the City of New York.  As alleged in the complaint, the facts of the case are: 

"To get a better vantage point [to film the protests], [the plaintiff] climbed onto the top of a telephone booth.  While he was filming 'an arrest that resulted in a significant injury to the person being arrested,' he was ordered to climb down from the telephone booth by the defendant police captain, but could not immediately comply because there were too many people surrounding the booth.  Eventually, he began to climb down, and when he did so, the three individual defendants pulled his legs out from under him, causing him to drop his camera and fall onto the ground. He was placed in plastic handcuffs and transported to a police processing center, where officers had to use a bread knife to cut off the handcuffs. In total, he spent approximately three hours in handcuffs, which caused bruising and pain to his wrists. After approximately four hours in custody, [defendant] Sylvester issued Higginbotham a summons to appear in court, and released him. Higginbotham was charged with one count of disorderly conduct, but the charge was dismissed on February 17, 2012."

The plaintiff subsequently filed a federal civil rights lawsuit against the defendants, in which he asserted six claims under 28 USC 1983:  false arrest, malicious prosecution, excessive force, assault/battery, and First Amendment retaliation against the three police officers and a Monell claim against the City of New York (to hold the city liable for the other violations).  The defendants moved to dismiss the complaint pursuant to FRCP 12(b)(6) for failure to state a claim (meaning that the allegations in the complaint were not sufficient to state a "plausible" claim for relief for any of these causes of action).  In a thorough and well-reasoned decision, Judge Castel granted the defense motion with respect to the malicious prosecution, excessive force, assault/battery, and Monell claims, but denied the motion with respect to the false arrest and First Amendment retaliation claims.   Let's look at each claim in turn.

False Arrest

Higginbotham first claimed that he was falsely arrested by the police officers.  “A section 1983 claim for false arrest is substantially the same as a claim for false arrest under New York law.”  Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007).  To establish such a claim, “a plaintiff must show that ‘(1) the defendant intended to confine him or her, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.’”  Holland v. City of Poughkeepsie, 90 A.D.3d 841, 844 (2d Dep’t 2011) (quoting Lee v. City of New York, 272 A.D.2d 586, 586 (2d Dep’t 2000)).

The defendants argued that Higginbotham could not satisfy the fourth element of his false arrest claim because they had probable cause to arrest him.  “‘Probable cause is an absolute defense to a false arrest claim.’”  Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (quoting Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010)).  “‘An officer has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed a crime.’”  Id. (quoting Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006)) (ellipsis omitted).  Even if probable cause for the actual arrest charge did not exist, the existence of probable cause to arrest for any offense precludes a false arrest claim.  Jaegly, 439 F.3d at 154.

This last rule is very important.  It means that police officers in a false arrest case will not be liable if there would have been probable cause to arrest the plaintiff for any criminal offense, even if there was no probable cause for the alleged offense for which the plaintiff in fact was arrested.  This is one of the many ways in which the civil rights laws protect police officers from civil liability for their wrongful conduct.

In the Higginbotham case, the defendants argued that there was or would have been probable cause to arrest the plaintiff for several different crimes.  First, the defendants argued that there was probable cause to arrest Higginbotham for a violation of N.Y. Penal Law § 240.20(6), the provision under which he was in fact charged.  That subdivision of New York’s disorderly conduct statute prohibits “congregat[ing] with other persons in a public place and refus[ing] to comply with a lawful order of the police to disperse,” “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.”  This is one of the most widely used justifications given by police officers for making arrests.

Judge Castel rejected the defendants' argument, finding that, based on the allegations in the complaint (which must be accepted as true when resolving a motion to dismiss), there was no probable cause to arrest Higginbotham for this disorderly conduct offense because (1) the defendants' order for Higginbotham to climb down from the telephone booth was not an order to "disperse" within the meaning of the statute and (2) because there is no evidence in the complaint that Higginbotham "refused" to comply with the order. 

The first point is critical.  As Judge Castel explained, the word "disperse," as used in the statute, means “[t]o separate, go different ways.”  Oxford English Dictionary (2d ed. online version Mar. 2015).  There is no allegation that Higginbotham was ordered to “separate” himself from the rest of the crowd, by leaving the scene of the protest.  On the contrary, as alleged, the defendants instructed that he climb down from the phone booth into the crowd. Further, “[a] group can disperse; an individual cannot.”  Goodwine v. Nat’l R.R. Passenger Corp., No. 12-cv-3882(TLM), 2014 WL 795756, at *7 (E.D.N.Y. Feb. 27, 2014).  Because the defendants’ order was directed at Higginbotham alone, it could not be an order to disperse.  See id. (holding that there was no violation of section 240.20(6) where the officer instructed the plaintiff alone to leave the area, rather than instructing the congregation of which the plaintiff was allegedly a member to disperse).

The defendants further argued that there would have been probable cause to arrest Higginbotham for three other crimes (creating a physically hazardous condition, reckless endangerment to people, reckless endangerment to property), but Judge Castel ruled that the allegations in the complaint were not sufficiently detailed to allow him to decide, as a matter of law, if any of these crimes applied to the facts of this case.  The defendants' arguments regarding these alleged crimes will have to wait for summary judgment when the factual record is more complete.

Alternatively, the defendants argued that they were entitled to "qualified immunity" for arresting the plaintiff because there was "arguable probable cause" for his arrest.  “‘Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.’”  Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)).  In other words, even if probable cause in fact did not exist to arrest someone for an alleged crime, a police officer will not be liable if it was "reasonable" for the officer to believe there was probable cause.  This is yet another rule designed to protect police officers from civil liability for their wrongful conduct.   

Luckily for the plaintiff, Judge Castel did not rule there was qualified immunity, explaining that on a motion to dismiss, a qualified immunity defense based on arguable probable cause “‘faces a formidable hurdle . . .’ and is usually not successful.”  Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 191–92 (2d Cir. 2006) (quoting McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004)).  The judge deferred deciding this issue until summary judgment as well.

In sum, the defendants' motion to dismiss the plaintiff's false arrest claim was denied.

Malicious Prosecution

Next, the plaintiff asserted a claim for malicious prosecution.  To prevail, he “must show a violation of his rights under the Fourth Amendment, and must establish the elements of a malicious prosecution claim under state law.” Manganiello v. City of N.Y., 612 F.3d 149, 160–61 (2d Cir. 2010) (citations omitted).  In New York, the elements of malicious prosecution are the commencement of a criminal proceeding, its termination in favor of the accused, lack of probable cause, and actual malice.  Martinez v. City of Schenectady, 97 N.Y.2d 78, 84 (2001).  Under section 1983, the plaintiff must also show “that there was . . . a sufficient post-arraignment liberty restraint to implicate the plaintiff’s Fourth Amendment rights.”  Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000).

This last point is often overlooked and misunderstood.  For false arrest claims, the elements under state law and federal law are the same.  For malicious prosecution claims, however, they are not the same.  Section 1983 requires more than state law.  Even though the court found that the plaintiff satisfied the state law elements, this was not enough.  Section 1983 requires a post-arraignment deprivation of liberty that is more than de minimis (i.e., more than having to appear in criminal court one or two times).  In this case, Higginbotham alleged that he had been issued a summons, but he did not allege that he had been arraigned and he did not allege any post-arraignment deprivation of liberty.

Accordingly, the court granted the defendants' motion to dismiss the malicious prosecution claim.

Excessive Force

Higginbotham claimed that the police officers used excessive force in arresting him.  A section 1983 excessive force claim arising in the context of an arrest is analyzed under Fourth Amendment principles.  Graham v. Connor, 490 U.S. 386, 394 (1989).  To prevail, the plaintiff must show that the defendants’ use of force was objectively unreasonable “in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”  Id. at 397.  In this case, Higginbotham’s excessive force claim was premised on the allegation that the defendants pulled his legs out from under him as he was climbing down from the phone booth and on the allegation that he was handcuffed too tightly, but the court ruled that neither of these is sufficient to state a claim.

The first allegation was not sufficient because Higginbotham did not allege that he had suffered any physical injury and there were no other allegations in the complaint that showed that the officers' use of force was more than de minimis.  In other words, being manhandled by the police without injury does not constitute excessive force in violation of federal law (but may constitute a battery under state law).

The court also rejected the plaintiff's claim that the handcuffing constituted excessive force.  As Judge Castel explained:  The law in this Circuit on excessive force claims arising out of the use of handcuffs is particularly well-developed.  In evaluating these claims, a court must consider (1) whether “the handcuffs were unreasonably tight, (2) [whether] the defendants ignored the plaintiff’s pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists.”  Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 468–69 (S.D.N.Y. 2008) (emphasis and alteration omitted) (quoting Esmont v. City of N.Y., 371 F.Supp.2d 202, 215 (E.D.N.Y.2005)).  Higginbotham does not allege that he ever complained to the defendants, or to anyone else, that his handcuffs were too tight.  Further, there is a consensus in the case law that tight handcuffing does not constitute excessive force unless it causes injuries beyond pain and bruising.  In other words, being handcuffed by the police, even if it causes pain and bruising, does not constitute excessive force in violation of federal law (but may constitute a battery under state law).  

In sum, the court granted the defendants' motion to dismiss the plaintiff's excessive force claim.


The plaintiff also alleged an assault/battery claim against the police officers, which the court dismissed.  According to the court, it was unclear whether Higginbotham asserted his assault claim under Section 1983 or under state law, but in either case it must be dismissed.  The section 1983 assault claim was duplicative of the excessive force claim.  Higginbotham’s state-law claim failed because it was procedurally deficient.  “[I]n a federal court, state notice-of-claim statutes apply to state-law claims.”  Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999) (emphasis in original) (citing Felder v. Casey, 487 U.S. 131, 151 (1988)).  New York law requires that plaintiffs asserting a tort claim against a municipality file a notice of claim within ninety days after the claim arises.  The requirement also applies to claims against New York City employees.  Failure to file a notice of claim ordinarily requires dismissal of the cause of action. Hardy, 164 F.3d at 794.  Because Higginbotham does not allege that he ever filed a notice of claim, he cannot maintain a state-law assault claim.

First Amendment Retaliation

Lastly, the plaintiff alleged that he had been arrested by the police in retaliation for his videotaping a violent arrest, in violation of the First Amendment.  A plaintiff asserting a First Amendment retaliation claim must show that “(1) he has a right protected by the First Amendment; (2) the defendant’s actions were motivated or substantially caused by his exercise of that right; and (3) the defendant’s actions caused him some injury.”  Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013).  The defendants argued that the plaintiff was not engaged in "expressive" activity protected by the First Amendment.  Judge Castel rejected the defendants' position and affirmed that the First Amendment applies to "a journalist who was filming a newsworthy protect for broadcast by a news organization."  As the court explained, "[w]hile videotaping an event is not itself expressive activity, it is an essential step towards an expressive activity, at least when performed by a professional journalist who intends, at the time of recording, to disseminate the product of his work."  Although Judge Castel did not declare a sweeping First Amendment right to videotape the police, limiting his decision to the facts of the case before him (which is what a good judge does), his ruling is very important and is quoted below at length:

All of the circuit courts that have [considered this issue] have concluded that the First Amendment protects the right to record police officers performing their duties in a public space, subject to reasonable time, place and manner restrictions.  See Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 608 (7th Cir. 2012) (invalidating a state eavesdropping statute as applied to the recording of police officers in the performance of their duties in traditional public fora); Glik v. Cunniffe, 655 F.3d 78, 82, 85 (1st Cir. 2011) (holding that there is “a constitutionally protected right to videotape police carrying out their duties in public” and that the right was clearly established; noting the “fundamental and virtually self-evident nature of the First Amendment’s protections in this area”); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing a First Amendment right to photograph or videotape police conduct); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing a “First Amendment right to film matters of public interest”; the plaintiff was filming the activities of police officers at a protest).

The Court agrees with those cases.  If one accepts that photographing and filming receive First Amendment protection as a general matter (at least when they are “expressive”), it is difficult to see why that protection should disappear simply because their subject is public police activity.  “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”  First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978); see also Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (stating that “[t]here is an undoubted right to gather news ‘from any source by means within the law’” (quoting Branzburg v. Hayes, 408 U.S. 665, 681–82 (1972))). Further, “‘there is practically universal agreement that a major purpose of’ the First Amendment ‘was to protect the free discussion of governmental affairs.’”  Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2828 (2011) (quoting Buckley v. Valeo, 424 U.S. 1, 14 (1976)).  Relatedly, “the dissemination of information relating to alleged governmental misconduct . . . l[ies] at the core of the First Amendment.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1034–35 (1991). The videotaping of police officers in the performance of their duties in public plainly furthers these First Amendment goals.

On the other side of the ledger lies the government interest in preventing interference with legitimate police activity.  But that interest does not override all others: for instance, “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461 (1987).  Videotaping from a reasonable distance is arguably less of a hindrance to legitimate police activity than the verbal challenges that the First Amendment unquestionably protects.  In any event, the right recognized here and by other courts does not apply when the recording would impede police officers in the performance of their duties.

The defendants further assert that they are entitled to qualified immunity because the right to record the police is “insufficiently defined.”  Qualified immunity “operates ‘to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)).  The defense is thus available to public officials “if their actions did not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Id. (emphasis added) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

The Court concludes, however, that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact "clearly established” at the time of the events alleged in the complaint.  When neither the Supreme Court nor the Second Circuit has decided an issue, a court “may nonetheless treat the law as clearly established if decisions from . . . other circuits ‘clearly foreshadow a particular ruling on the issue.’” Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014) (quoting Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010)); see also Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011) (requiring, in the absence of controlling authority, “a robust ‘consensus of cases of persuasive authority’” (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999))).

By November 2011, the First, Ninth and Eleventh Circuits had all concluded that the right exists.  So had a number of district courts.  See Pomykacz v. Borough of West Wildwood, 438 F. Supp. 2d 504, 512–13 (D.N.J. 2006) (denying summary judgment in a First Amendment retaliation claim involving a plaintiff who was arrested for repeatedly photographing a police officer); Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D. Pa. 2005) (holding that the plaintiff’s “recording the activities of Pennsylvania state troopers as they went about their duties on a public highway” was protected by the First Amendment); Alliance to End Repression v. City of Chicago, No. 74 C 3268, 2000 WL 562480, at *21 (N.D. Ill. May 8, 2000) (holding that “taking photographs of the police” was “First Amendment conduct”); Connell v. Town of Hudson, 733 F. Supp. 465, 471 (D.N.H. 1990) (holding that the police’s interest in securing an accident scene did not outweigh the plaintiff’s right to photograph the scene, and rejecting the defendants’ qualified immunity argument); Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 638 (D. Minn. 1972) (recognizing the right of a newsman to film a crime scene from any location to which the general public had access, unless he unreasonably interfered with or endangered the police).  The Court is unaware of any decision holding that the recording of police activity by a journalist otherwise unconnected to the events recorded is categorically not protected (rather than holding merely that the right to record was not “clearly established”).  At the time of Higginbotham’s arrest, there was thus a “robust consensus of persuasive authority” in favor of the right that “clearly foreshadowed” an analogous ruling by the Second Circuit or the Supreme Court.  See Crawford v. Geiger, 996 F. Supp. 2d 603, 615–17 (N.D. Ohio 2014) (holding that the right to openly film police officers was clearly established by 2012, despite the absence of Sixth Circuit authority).

. . .

Certainly, the right to record police activity in a public space is not without limits, and some uncertainty may exist on its outer bounds.  For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation.  As alleged, however, Higginbotham’s conduct falls comfortably within the zone protected by the First Amendment.  The complaint alleges that he was a professional journalist present to record a public demonstration for broadcast and not a participant in the events leading up to the arrest he was filming.  There is nothing in the complaint suggesting that his filming interfered with the arrest.  Accordingly, and in light of the case law consensus described above, a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment.

In sum, the plaintiff's conduct was protected by the First Amendment and he stated a claim for First Amendment retaliation.


In addition to the claims against the individual police officers, the plaintiff asserted a so-called Monell claim against the City of New York.  This is another area of the law that is frequently misunderstood.  Under Section 1983, municipalities are not automatically liable for constitutional violations committed by their employees.  Under Section 1983, cities can be held liable only for their own unconstitutional policies and practices.  For example, cities can be held liable if they adopt a discriminatory policing policy, but they cannot be held liable simply because an individual police officer falsely arrests someone.  (The rule is different under New York law, which holds cities vicariously liable for the tortious conduct of their employees.)

As the court explained:  A municipality may be held liable under section 1983 only if the plaintiff’s injury is the result of municipal policy, custom, or practice.  Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). It may not be held liable solely “by application of the doctrine of respondeat superior.”  Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986).  Generally, “a single incident alleged in a complaint, especially if it involved only actors below the policy making level, does not suffice to show a municipal policy.”  DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998).  Further, “the mere assertion that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.”  Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (alterations omitted) (quoting Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993)).

In Higginbotham, the plaintiff alleged that the NYPD had a policy or practice of arresting individuals who were observed photographing, videotaping, or otherwise recording the illegal and unconstitutional acts of the police.  The court found, however, that the complaint "fails to allege facts raising the plausible inference that the practice underlying the Monell claim existed."  The plaintiff "has thus not adequately pleaded the existence of a municipal policy, custom, or practice, and accordingly his Monell claim must be dismissed."

The lack of a viable Monell claim is commonplace in civil rights suits under Section 1983.  It is very difficult to allege the requisite legal and factual circumstances to hold New York City liable for the everyday unconstitutional conduct of police officers.  As a practical matter, however, it usually is unnecessary to sue the city in addition to individual police officers.  The city still defends these cases and still pays any settlements and judgments.  For the typical civil rights case involving street-level false arrest and excessive force claims, suing the officers involved is sufficient. 


If you or someone you know had been the victim of false arrest or excessive force or other civil rights violations, please contact The Warshawsky Law Firm today.  

Friday, May 15, 2015

The Warshawsky Law Firm In The News: Law360 Article On Nail Salon Employee Wage And Hour Lawsuits

Steven M. Warshawsky, the founder and principal of The Warshawsky Law Firm, was quoted in a Law360 article on May 14, 2015, titled "Immigration Status Won't Block Uptick In Nail Worker Suits," by Allissa Wickham.

As reported in the article (sub. req.), New York Gov. Andrew Cuomo on Sunday announced a new multi-agency initiative to uncover and redress state labor law violations in New York City area nail salons.  Among the violations being targeted are failure to pay minimum wages and overtime to nail salon employees, who typically are paid a flat daily or weekly wage (usually in cash) regardless of the number of hours worked.  Many of these workers are not being paid the required minimum wage (currently $8.75, increasing to $9.00 on 12/31/15) or receiving premium pay for overtime (more than 40 hours in a work week).  These workers also are not receiving "spread of hours pay" (an extra one hour's pay at the minimum wage rate for work days that exceed 10 hours), among other violations.

The reality is that many nail salon employees are illegal immigrants, which is one of the reasons why they can be taken advantage of by their employers.  Although it is illegal to employ an undocumented worker, the federal and state labor laws generally apply to illegal immigrants, who are entitled to the same minimum wage, overtime, and wage payment protections as legal workers, although some complicated questions can arise in this context.  I previously wrote about employment law coverage for illegal workers here.

The article reports that the state's investigation of nail salons, which will include advising employees of their labor law rights, will lead to an increase in wage and hour lawsuits on behalf of nail salon employees.  “If more workers know what their rights are — and learn that maybe they are entitled to some additional payment — presumably that would create an incentive for them either to make claims through the Department of Labor, which will investigate wage claims, or with a private attorney,” said attorney Steven M. Warshawsky of The Warshawsky Law Firm.


If you or someone you know has not been paid properly at work, please contact The Warshawsky Law Firm today. 

Thursday, November 20, 2014

Know Your Rights: Peaceably Congregating In Public a/k/a "Standing While Black" Is Not A Crime

As a civil rights lawyer, I frequently am consulted by people, and represent clients, who have experienced the following situation:

They are standing and talking with friends on a public sidewalk, minding their own business and not interfering with anyone else, when they are approached by police officers and ordered to "move along" or "clear out" or "disperse."  Most people in this situation obey the police officers and leave.  But some people challenge the police officers, asking why they have to move, claiming they have the right to be where they are, and refusing to leave.  Almost inevitably, these people are issued a summons or are arrested, usually for "disorderly conduct."

The question they always ask me is, are the police really allowed to boss people around like this and then arrest them when they refuse to obey their commands?

Before discussing the legal issues involved in this scenario, let's be clear:  We're talking about minority persons, primarily blacks and hispanics, living in predominantly minority neighborhoods, who are being bossed around by the police in this manner.  This scenario rarely happens to white persons or in white neighborhoods.  Indeed, my clients refer to this as "standing while black."

In my experience, this is a common NYPD tactic (directed and approved by high-level supervisors), which police officers argue is necessary to help deter and prevent crime.

As a practical matter, they may be right; aggressive policing probably does have some "positive" effect on the level of crime.  But as a legal matter, they are wrong.  In my view, the policing tactic we are discussing here is contrary to well-established state law and violates the First and Fourth Amendments of the U.S. Constitution.  Whatever the "benefits" may be of this policing tactic, they are outweighed by the high cost of violating individual rights, fueling anger and resentment towards the police, and eroding civil liberties for all New Yorkers.

In my experience, police officers firmly believe they have the authority to order groups of people to "disperse" for alleged crime fighting purposes, even people who are behaving in an orderly and peaceable manner.  The officers believe this authority comes from the disorderly conduct statute, which includes a subsection that states that a person is guilty of disorderly conduct when . . . "[h]e congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse."  P.L. 240.20(6).  Police officers interpret this provision to mean that they may order groups of people (usually three or more persons) who are congregating in public to disperse, and that refusal to obey their commands constitutes disorderly conduct.  WRONG!

Why is this wrong?  Because the police officers ignore the all-important introductory language of the disorderly conduct statute, which states that, to be guilty of disorderly conduct, a person must act "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof."  This means that before a police officer may order a group of persons to disperse, they must be congregating "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof."  People who are congregating in an orderly and peaceable manner -- who are not "disturbing the peace" -- are not acting disorderly and, therefore, the police do not have the "lawful" authority to order them to disperse.

The New York Court of Appeals has discussed this scenario in two recent cases:  People v. Jones (2007) and People v. Johnson (2014):

People v. Jones 

The defendant in Jones was charged with disorderly conduct, for obstructing pedestrian traffic (P.L. 240.20(5)), and resisting arrest.  The information alleged that the police officer "observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic]."  The officer then "directed defendant to move and defendant refused and as [the officer] attempted to stop defendant, defendant did run."  Based on these allegations, the Court of Appeals reversed the lower courts and dismissed the disorderly conduct charge against Jones, explaining (citations omitted):

Nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m., had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm."  The conduct sought to be deterred under the statute is "considerably more serious than the apparently innocent" conduct of defendant here.  Something more than a mere inconvenience of pedestrians is required to support the charge.  Otherwise, any person who happens to stop on a sidewalk – whether to greet another, to seek directions or simply to regain one's bearings – would be subject to prosecution under this statute.  Those congregating on the street display "atrociously bad manners” by "discommod(ing) some other persons" but such conduct alone does not necessarily give rise to disorderly conduct.

Significantly, the Court of Appeals also dismissed the resisting arrest charge against Jones, because a person is guilty of resisting arrest only when he interferes with "an authorized arrest of himself or another person" (P.L. 205.30), and the Court of Appeals held that the police officer's arrest of Jones was not authorized (because Jones was not committing disorderly conduct).  In other words, although the officer gave Jones an "order" to disperse, the officer was not authorized to arrest Jones simply for refusing to obey the order; hence, the order could not have been a "lawful order" within the meaning of the disorderly conduct statute. 

The Jones decision stands for the proposition that police officers do not have the "lawful" authority to order groups of people who are peaceably congregating in public to disperse and then to arrest those who refuse to obey their commands.

People v. Johnson        

The defendant in Johnson was arrested for disorderly conduct, for refusing a lawful order to disperse (P.L. 240.20(6)), then charged with criminal possession of a controlled substance when cocaine was found on his person during a search incident to arrest.  Reversing the lower courts, the Court of Appeals held that there was insufficient evidence to support the defendant's arrest for disorderly conduct and, consequently, the drug evidence was suppressed and the indictment dismissed.  Specifically, the Court of Appeals found that "the evidence was insufficient to provide the arresting officer with probable cause to believe that defendant either intended to cause public inconvenience, annoyance or alarm or was reckless in creating a risk of those consequences."

The Court of Appeals based its decision on the police officer's testimony at the suppression hearing:

According to the officer's testimony at the suppression hearing, defendant stood with three other young men, reputed to be gang members, on a street corner, and the four refused to move when asked to do so by the police.  The only evidence of any possible impact on the public resulting from their presence was the officer's testimony that one of defendant's companions "was partially blocking" the entrance to a store by standing in front of it.  Defendant and the other two men were close to the door, but not in front of it.  There is no evidence that anyone trying to enter or leave the store was actually obstructed.

Based on these facts, the Court of Appeals found that "[t]his was not sufficient to satisfy the public harm element of the statute."  As the Court emphasized, "[w]e have made clear that evidence of actual or threatened public harm ('inconvenience, annoyance or alarm') is a necessary element of a valid disorderly conduct charge" (citing People v. Baker (2013) and People v. Weaver (2011)).

The Court's concluding comment in Johnson highlights the unlawful nature of the policing tactic we are discussing:

It is understandable that police officers become concerned when people they believe to be gang members and their associates gather in public.  It is not disorderly conduct, however, for a small group of people, even people of bad reputation, to stand peaceably on a street corner.

In other words, so long as a group of people are congregating in public in a peaceable manner, the police do not have the lawful authority to order them to "disperse," even for alleged crime fighting purposes.  Indeed, the First Amendment of the U.S. Constitution guarantees the right of the people "peaceably to assemble."  Assuming a person otherwise is in compliance with the law, merely standing with others on a public sidewalk is not illegal.

A Word of Caution

Nothing in this blog entry should be construed as advising or recommending that people disobey the police and refuse to comply with orders to disperse.  For one thing, many times these orders are lawful and appropriate and refusing to obey the orders will result in a person's arrest (and possible beating) and prosecution.  For another thing, even when the orders are not lawful and appropriate, refusing to obey them still will result in a person's arrest (and possible beating) and prosecution.  Although in such a situation the person may have a valid civil rights claim, this does not outweigh the costs of being arrested (and possibly beaten) and prosecuted.  Lastly, many local criminal court judges either do not understand or do not care about constitutional rights and will convict a person even when the police acted unlawfully.  Consequently, whenever possible, it is better to avoid any problems with the police. 

Persons who have been wrongly arrested for "standing while black" should contact The Warshawsky Law Firm or another qualified civil rights lawyer immediately.

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The Warshawsky Law Firm represents clients in employment law, civil rights law, and litigation in the New York City metropolitan area, which includes Manhattan, Bronx, Brooklyn, Queens, and Staten Island, as well as Nassau, Suffolk, Westchester, Rockland, Duchess, Putnam, Orange, and Sullivan Counties.

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