Defendant's outburst allowed trial court to remove him from courtroom as jury announced its verdict

In this case, the criminal defendant in state court was removed from the courtroom while the jury was issuing its verdict because the trial court decided that a prior warning was not practicable. This is the rare case where the conviction is affirmed even though the defendant was not present in the courtroom during all proceedings.

The case is People v. Dunton, issued by the New York Court of Appeals on April. The defendant, standing trial in a shooting case, had a violent record while in custody at Riker's Island, requiring the court take additional security precautions during trial. As the majority states in this case, the defendant had known "explosive tendencies." During trial, the prosecution told the court that one of its witnesses complained that defendant had stared her down while she was testifying against him, signaling that she should keep her mouth shut. 

When the jury began reading its verdict in court, after finding him guilty on the sixth count, and with one count to go, defendant yelled at the jury in open court and told them to "suck my d***." The judge then removed defendant from the courtroom and the jury proceeded to find him guilty on the seventh charge. 

While criminal convictions can be overturned for a new trial when the defendant is improperly removed from the courtroom during all proceedings, there are exceptions to that rule, and this case creates an exception. The Court of Appeals holds that removal was proper in the unique circumstances of this case. The majority reasons:

In disregard of his professed assurances, and demonstrating his contempt for the proceedings and the court, defendant disrupted the announcement of the verdict three times. First, he laughed after the foreperson announced guilty on five counts, including the top count of attempted murder. Second, moments later, after the foreperson announced guilty on the sixth count, defendant directed a verbal outburst at the jury. Third, after the court instructed counsel to control defendant, defendant continued his tirade, using profanity directed specifically at the jury. It was only after defendant could not be controlled and the jurors had become visibly upset by defendant's verbal abuse that the court directed the officers to take charge and defendant was removed from the courtroom.

 

Contrary to the dissent's view, the totality of defendant's misconduct in and out of the courthouse rendered a warning to defendant immediately preceding his removal impracticable. Any delay in defendant's removal would have permitted further disruption of the proceedings and risked physical danger to the public, jurors, judge, court officers and staff and the lawyers. As the court had earlier observed, “things get ugly very fast in a [quite small] courtroom.” The fact that defendant was handcuffed did not eliminate the possibility that he could physically move about and further disrupt the proceedings and injure those in attendance. Indeed, defendant had previously displayed violent sudden outbursts and there was no certainty that handcuffs would prevent him from reacting in the same manner.

 

In disregard of his professed assurances, and demonstrating his contempt for the proceedings and the court, defendant disrupted the announcement of the verdict three times. First, he laughed after the foreperson announced guilty on five counts, including the top count of attempted murder.⁵ Second, moments later, after the foreperson announced guilty on the sixth count, defendant directed a verbal outburst at the jury. Third, after the court instructed counsel to control defendant, defendant continued his tirade, using profanity directed specifically at the jury. It was only after defendant could not be controlled and the jurors had become visibly upset by defendant's verbal abuse that the court directed the officers to take charge and defendant was removed from the courtroom.⁶

Contrary to the dissent's view, the totality of defendant's misconduct in and out of the courthouse rendered a warning to defendant immediately preceding his removal impracticable (see dissenting op. at ––––, ––– N.Y.S.3d at ––––, ––– N.E.3d at ––––). Any delay in defendant's removal would have permitted further disruption of the proceedings and risked physical danger to the public, jurors, judge, court officers and staff and the lawyers. As the court had earlier observed, “things get ugly very fast in a [quite small] courtroom.” The fact that defendant was handcuffed did not eliminate the possibility that he could physically move about and further disrupt the proceedings and injure those in attendance. Indeed, defendant had previously displayed violent sudden outbursts and there was no certainty that handcuffs would prevent him from reacting in the same manner.

People v. Dunton, No. 42, 2024 WL 1723124, at *5 (N.Y. Apr. 23, 2024)

In disregard of his professed assurances, and demonstrating his contempt for the proceedings and the court, defendant disrupted the announcement of the verdict three times. First, he laughed after the foreperson announced guilty on five counts, including the top count of attempted murder.⁵ Second, moments later, after the foreperson announced guilty on the sixth count, defendant directed a verbal outburst at the jury. Third, after the court instructed counsel to control defendant, defendant continued his tirade, using profanity directed specifically at the jury. It was only after defendant could not be controlled and the jurors had become visibly upset by defendant's verbal abuse that the court directed the officers to take charge and defendant was removed from the courtroom.⁶

Contrary to the dissent's view, the totality of defendant's misconduct in and out of the courthouse rendered a warning to defendant immediately preceding his removal impracticable (see dissenting op. at ––––, ––– N.Y.S.3d at ––––, ––– N.E.3d at ––––). Any delay in defendant's removal would have permitted further disruption of the proceedings and risked physical danger to the public, jurors, judge, court officers and staff and the lawyers. As the court had earlier observed, “things get ugly very fast in a [quite small] courtroom.” The fact that defendant was handcuffed did not eliminate the possibility that he could physically move about and further disrupt the proceedings and injure those in attendance. Indeed, defendant had previously displayed violent sudden outbursts and there was no certainty that handcuffs would prevent him from reacting in the same manner.

People v. Dunton, No. 42, 2024 WL 1723124, at *5 (N.Y. Apr. 23, 2024)

Bedroom invite does not give rise to quid pro quo sexual harassment case

The Court of Appeals has rejected a sexual harassment claim, holding that the plaintiff has not sufficiently alleged quid pro quo harassment in trying to assert that the company president was trying to initiate a sexual relationship.

The case is Reed v. Fortive Corp., a summary order issued on April 24. To win a quid pro quo harassment claim you have to show that the supervisor conditions job-related benefits on your decision to have sex with him. In this case, the Court of Appeals (Calabresi, Park and Merriam) holds, plaintiff does not plead such a claim and that her allegations are too conclusory and speculative. Here are the allegations, bearing in mind that McCauley is head of the company:

Reed’s claim is based on a single incident in which McCauley allegedly invited her to see a corporate apartment on their way to lunch, asked her repeatedly to join him in the apartment’s bedroom, and then inquired over lunch whether she was married or had a boyfriend.

The bedroom was MCauley's bedroom. What the complaint does not assert, the Court notes, is that McCauley made sexual comments or made physical contact, and plaintiff does not allege that he engaged in any other sexual conduct toward plaintiff or anyone else. Without actually stating this, the Court appears to believe that McCauley's bedroom maneuvers are not, by themselves, enough that he was trying to initiate a sexual relationship with plaintiff.

What he have is an Iqbal holding, named after the Supreme Court from 2009 that made it more difficult for plaintiffs to survive a motion to dismiss. Iqbal emphasized that plaintiffs must assert "plausible" and nonconclusory claims. Court also cite Iqbal for the proposition that speculative claims are not enough. I am sure plaintiff's counsel emphasized that the bedroom references were inherently sexual. The bedroom is not the kitchen. At oral argument counsel noted that in Oncale v. Sundowner (1997), the Supreme Court wanted the courts to examine the offending conduct in the appropriate "social context."

Justices clarify "transportation exception" to compelled arbitrationm law

Arbitration can be described as a private justice system that resolves legal disputes if the parties agree to that arrangement. In the employment context, the worker usually signs the arbitration agreement at the start of her employment, and if she wants to sue her employer later on, the case will be routed to JAMS or AAA, the primary arbitration services. But all kinds of non-employment disputes are also arbitrated. Anything can be arbitrated. Courts do not like it when litigants try to get around the arbitration agreement, and they will strictly enforce the Federal Arbitration Act, which provides that arbitration agreements will be upheld absent some compelling reason (such as if someone was coerced into signing the agreement). There is a major exception to the FAA, and that arose on April 12, when the Supreme Court examined the transportation exception.

The case is Bissonnette v. Le Page Bakeries. The plaintiffs distributed baked goods to retailers in Connecticut. They got into a dispute with Flowers Foods, who make the baked goods for delivery. But plaintiffs signed an arbitration agreement, which Flowers wanted to enforce so the case could proceed in arbitration, which is generally viewed as more favorable to employers than the courts. Plaintiffs wanted the case in court. After several rounds of appellate practice in the Second Circuit, which sided with Flowers and ordered the case to arbitration, the case reached the Supreme Court, which unanimously agrees with the plaintiffs that the case is not arbitrable.

The FAA has a curious exception that we call the "transportation exception." The issue is whether a transportation worker must work for a company in the transportation industry to invoke the transportation exception under the FAA. Or whether the plaintiff engages in transportation as part of his work, even if he is working for an entity that is not part of the transportation industry. The Second Circuit held the plaintiffs must work in the transportation industry, such as the airlines or a trucking company. As the Circuit saw it, the "entity would be considered within that industry if it pegs its charges chiefly to the movement of goods or passengers and its predominant source of commercial revenue is generated by that movement." The Supreme Court rejects that interpretation of the FAA.

Since the FAA does not actually define what constitutes the "transportation industry," it reviews the statute with a fresh eye, determining that the Second Circuit's interpretation needlessly complicates the statute and would require mini-trials to determine whether an entity really falls within the exception. "Extensive discovery may be necessary to explore the internal structure and revenue models of a company before deciding a simple motion to compel arbitration." The better rule, the Supreme Court says, is that in determining whether the transportation exception applies, the plaintiff need not work for a company in the transportation industry. Rather, "a transportation worker is one who is actively engaged in transportation of goods across borders via the channels of foreign or interstate commerce. In other words, any exempt worker must at least play a direct and necessary role in the free flow of goods across borders."

Supreme Court makes it easier for Title VII plaintiffs to win discriminatory transfer cases

In a major ruling under Title VII (the primary federal employment discrimination statute), the Supreme Court holds that plaintiffs challenging a discriminatory job transfer need only prove the transfer brought about some "disadvantageous" change in an employment term and condition. This ruling rejects the test applied in the Second Circuit and elsewhere, which required that the plaintiff prove a "significant" change in the terms and conditions of employment. Instead, the plaintiff need only prove "some harm respecting an identifiable term or condition of employment."

The case is Muldrow v. City of St. Louis, issued on April 17. For decades, at least in the Second Circuit (and most of the other Circuits), courts have required Title VII plaintiffs to prove a "material" change in the terms and conditions of employment in order to win the case. A termination or demotion is certainly material, but transfers were less clear. A few Circuits in recent years took a fresh look at the materiality test and determined that it finds no basis under Title VII's plain language, and they instead held that any discrimination is actionable under Title. VII. The Supreme Court does not go that far, but it does reduce the plaintiff's burden in proving a discriminatory transfer case.

Plaintiff was a female law enforcement professional who was transferred to a less-prestigious unit, where her rank and pay remained the same but she no longer worked with high-ranking officials on departmental priorities in the Intelligence Division and instead supervised day-to-day activities of neighborhood patrol officers. The transfer also cost her an unmarked take-home vehicle, and she had to work some weekends. The evidence suggests a supervisor wanted a man to hold plaintiff's position, which occasioned the transfer. Is this an adverse action under Title VII?

This case is the first time the Supreme Court really explains what constitutes an adverse action under Title VII, enacted in 1964. Circuit courts have had to define that phrase and over the years the consensus was that a "material" change in the terms and conditions of employment is necessary to win the case. This led to the dismissal of countless cases where courts thought the plaintiff could not prove an adverse action, and many of these dismissals were transfer cases. The Second Circuit held firm on the materiality standard, as the Supreme Court notes in listing the cases creating the Circuit split that led the Court to grant certiorari.

Writing for a unanimous Court, Justice Kagan writes that the "materiality" or "significant" test in transfer cases finds no support in the language of Title VII. In other words, that high burden was judge-made and not authorized by Congress. The high burden has led to conflicting results in the various Courts of Appeals over the years, Justice Kagan notes. After summarizing cases in which the plaintiff lost under the heightened standard, she writes: "All those employees suffered some injury in employment terms or conditions (allegedly because of race or sex). Their claims were rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require."

Muldrow's case, which was dismissed under the now-rejected materiality standard, is revived. If she can prove her allegations, then she has an adverse action, the Court holds. 

Muldrow need show only some injury respecting her employment terms or conditions. The transfer must have left her worse off, but need not have left her significantly so. And Muldrow’s allegations, if properly preserved and supported, meet that test with room to spare. Recall her principal allegations. She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily per- formed administrative work. Her schedule became less reg- ular, often requiring her to work weekends; and she lost her take-home car. If those allegations are proved, she was left worse off several times over. It does not matter, as the courts below thought . . . that her rank and pay remained the same, or that she still could advance to other jobs. Title VII prohibits making a transfer, based on sex, with the consequences Muldrow described.

The case returns to the district court to apply the correct standard. 

We have a few concurrences, including one from Justice Alito, who says the ruling is "unhelpful" and that he has "no idea what [the new standard] means, and I can just imagine how this guidance will be greeted by lower court judges." He adds:

I see little if any substantive difference between the terminology the Court approves and the terminology it doesn’t like. The predictable result of today’s decision is that careful lower court judges will mind the words they use but will continue to do pretty much what they have done for years.

Justice Kavanaugh would take the standard even further and allow plaintiffs to win if they can prove any transfer was discriminatory. He writes:

No court has adopted a some-harm requirement. No  court  has  adopted  a  some-harm requirement, and no party or amicus advocated that requirement to this Court. More to the point, the text of Title VII does not require a separate showing of some harm. The discrimination is harm. The only question then is whether the relevant employment action changes the compensation,  terms, conditions, or  privileges  of employment. A transfer does so. Therefore, as the D. C. Circuit explained, a transfer on the basis of race, color, religion, or national origin is actionable under Title VII.

Justice Kavanaugh recognizes that Justice Kagan's new test presents "a relatively low bar" for plaintiffs and that, in his view, "anyone who has been transferred because of race, color, religion, sex, or national origin should easily be able to show some  additional  harm—whether  in  money,  time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional   relationships, networking opportunities, effects on family obligations, or the like."

How will this holding affect other Title VII cases that do not involve discriminatory transfers but job-actions that do not result in terminations or demotions? The Court does not say. The next few years will yield new cases in the lower courts that grapple with the new test in different factual settings.
 




 

This is why it is hard to win false arrest cases

As if this actually bears repeating, and it does not, probable cause is a defense to any false arrest claim, and probable cause is a low bar for the police to satisfy. This means many false arrest claims never see the light of day, even if the criminal defendant was found innocent in criminal court, and even if the charges against the criminal defendant were dropped prior to trial. This case is a good example of how all of this works.

The case is Dorsey v. Gannon, a summary order issued on March 29. Plaintiff was arrested and the charges were dismissed, but that does not give plaintiff a trial. What would give her a trial is proof that no reasonable officer would have arrested plaintiff under the circumstances. Again, that's a low bar for the police. When I say "no reasonable officer," I mean "no reasonable officer." The courts do not want the police to avoid arresting someone in fear that there might be a lawsuit if the arrest turned out to be wrong. You can only sue if the arrest was totally unreasonable. Qualified immunity has been expanded over the years, making it difficult for plaintiffs to overcome that defense. There was talk a few years ago of eliminating this immunity, but that movement has stalled.

What happened here is that the police reviewed surveillance video of a woman with a fake Pennsylvania driver's license trying to cash forged checks at banks in the metropolitan area. A Pennsylvania detective told the NYPD that the video appeared to depict plaintiff, and he provided a photograph of plaintiff and her criminal history. Plaintiff's probation officer also agreed the photo depicted plaintiff. Solid case, right?

But wait! After plaintiff provided alibis proving she was someplace else when the surveillance footage was taken, the charges were dismissed. Plaintiff was innocent!

If you know false arrest law, you know where this is going. Yes, plaintiff spent two days in jail before posting bail, which is a serious hardship and an injustice. But the officers did reasonably think it was plaintiff in the video footage, based on corroborating evidence. The arrest, in hindsight, was bad. But the Court of Appeals (Jacobs, Sullivan and Leval) finds the police acted reasonably in taking her into custody. Since the police dropped the charges after the alibis exonerated her, there is no reason to sue the police under 42 U.S.C. 1983, the national civil rights law.

Excessive force claim will proceed to trial

The plaintiff claims a police officer in Greenwich, Connecticut subjected him to excessive force after someone called the police following plaintiff's anxiety attack in his partner's residence, when he threw things around and destroyed property. The district court denied summary judgment for the officer, which would normally send this case directly to trial. But the officer appeals, claiming entitlement to qualified immunity. There can be no appeal, however, without first resolving disputed facts surrounding the use of force. There will be a trial.

The case is Moran v. Greco, a summary order issued on April 12. When Officer Greco arrived on the scene, he told plaintiff to lie on the ground outside after the officers decided to place him under arrest. But plaintiff instead stood up and began to walk way, at which time Greco and another officer brought him to the ground and turned him onto his stomach, but plaintiff resisted handcuffing. A series of officers then used force to effectuate the handcuffs. At some point, this force caused plaintiff to suffer a broken arm, causing "an audible popping sound." This happened after Greco threatened to break plaintiff's "fucking arm," to which plaintiff responded, "Why would you do that? It's already locked."

Excessive force claims are not always amenable to summary judgment, because the parties often dispute the relevant facts: the police claim they had to use force to bring the suspect under control, and the suspect claims the officer used too much force. These claims can prevail even if the plaintiff resisted to some extent. "Excessive" force is often an issue for the jury. That does not mean the plaintiffs often win at trial, but courts do not want to take that decision away from the jury. There is a fine line between excessive and reasonable.

For police officers, one way to win is to assert qualified immunity, which means the officers acted reasonably under the circumstances, even if 20/20 hindsight proves the officers went too far. If immunity is denied, the officer can take an immediate appeal. But that immediate appeal (which is otherwise disfavored in the federal system) cannot proceed unless the undisputed facts show the officer acted reasonably. In a swearing contest like this, it is difficult to agree on the facts, and since the plaintiff often argues that the force was gratuitous, the officers' motion for qualified immunity will often be denied. That is what happened here. As the Court writes:

Here, the facts viewed in the light most favorable to Moran are that Officer Greco torqued Moran’s arm forward causing it to fracture, and that, at the time Officer Greco shifted Moran’s arm, Moran was lying face down on the ground, surrounded by six officers who were either pinning Moran to the ground or, in the case of Officers Tornga and Greco, holding Moran’s wrists. On those facts, a rational jury could find that, at the time of Officer Greco’s use of force on Moran’s left arm, Moran was no longer actively resisting arrest and that the use of force on that arm— which caused it to break—was gratuitous and objectively unreasonable under the totality of the circumstances.

While the officers point to evidence suggesting they acted reasonably, the Court of Appeals (Sack, Chin and Bianco) holds it does not even have jurisdiction to resolve the appeal. Off to trial we go.

 

No taxpayer standing to challenge Rockland County zoning law favoring Orthodox Jews

A citizen's group and three named plaintiffs sued this community in Rockland County, claiming that a new zoning law for places of religious worship violates the Establishment Clause of the First Amendment, which mandates church-state separation. The plaintiffs lose. Why? They lack standing to sue.

The case is Citizens United to Protect our Neighborhoods v. Village of Chestnut Ridge, New York, issued on April 5, eleven months after oral argument. Accommodating the Orthodox Jewish community, following contentious public hearings, the Village amended its zoning laws so that religious organizations can more easily build places of worship, causing plaintiffs to worry that the new zoning laws would "radically transmogrify the character of the Village." They sued in 2019. Five years later, we have a definitive resolution from the Second Circuit (Jacobs, Kearse and Sullivan), though not on the merits of the appeal. The Court instead says plaintiffs lack standing to bring this lawsuit.

Plaintiffs assert municipal taxpayer standing, which applies in certain cases alleging Establishment Clause violations if the taxpayer can show "a measurable appropriation or loss of revenue attributable to the challenged activity." But to gain standing this way, the plaintiff has to show the government made the appropriation "solely for the activities that the plaintiff challenges." In applying this test, however, courts will ensure that standing does not attach merely because the municipality's paid employees spent time on the challenged activities. Plaintiffs lose under this theory because, while they pay municipal taxes, those taxes are not spent or lost on the enforcement of the new zoning law. Nor does it matter that the village spent money in passing the new zoning law. Plaintiffs' taxpayer standing arguments are simply too generalized to allow them to bring this lawsuit.

Nor can plaintiffs assert "direct harm," or "direct exposure" standing, as they are not directly affected by the new zoning laws. They cannot show the new laws would cause them to be personally constrained or subject to control, such as if they were denied a liquor license simply because their establishment was situated near a church. Nor would the new zoning law affect plaintiff's religious practices. Since they cannot show the new laws would harm them personally, as opposed to the community as a while, there is no direct-harm standing.

How about "denial of benefits" standing? No dice, the Court says, as plaintiffs cannot show the new zoning law will cost them any benefits on account of their religion. The organizational standing argument also fails, as the new law does not directly regulate the organization and will not require the organization to expend or lose any resources. 

In the end, perhaps the only real way to challenge a zoning law like this is though the political process, the way you might challenge any other zoning law. Not all local laws can be challenged in court.