NYC's Mayor's Getting Frivolous

NYC Mayor Bill de Blasio has increasingly given the impression that he is prone to simplified political expediency. You know, that he may be the kind of pol who guesses what people want to hear, and then says it, without regard for accuracy, honesty, or commitment . Case in point: de Blasio's "new" get tough policy on civil rights litigation. That it may be new to him does not make it new. Particularly when it was already in place.

Following newspaper accounts of a decision by the City of New York to pay Rahim Ullah $5,000 because the police shot him after he threatened the officers with a machete, City Hall announced it will add 30 lawyers and 10 paralegals to the Law Department for the sole purpose of litigating "frivilous" police cases to trial. This, de Blasio claims, is a groundbreaking and novel approach to such lawsuits. At first blush, this might seem to be a purely political act, one de Blasio undertook for no purpose other than to justify a press conference where he can give a "I stand up for the NYPD" speech. It might also appear to be a load of crap that creates more problems than it solves. If you thought these things, you'd be right.

Mind Your Ps and Qs

The United States Court of Appeals for the Second Circuit recently ruled that the documents we attorneys sign will be interpreted based on their plain meaning, even if it's plain we didn't mean what we wrote. The case has nothing to do with criminal defense or civil rights litigation, but it serves as a useful reminder to attorneys of all sizes and stripes to pay attention to the details.

The short version? Attorneys filing papers that they thought were terminating a lease agreement, deliberately but mistakenly included a document that terminated an unrelated $1.5 billion dollar deal. The bankruptcy court said, no problem, you didn't mean it. The Second Circuit, however, said: you read the document and you then filed the document, so you are stuck with the consequences.

For those that care, the slightly longer version can be found in In Re Motors Liquidation Company, 13-2187, and the details are as follows: during the 2000s, General Motors had entered into various lending agreements with JP Morgan. In 2008, GM closed out a lease agreement, and instructed it's counsel at Mayer Brown to file the proper termination statements.  The partner at Mayer Brown delegated an associate the task of identifying GM's prior UCC filing statements relating to the lease. The associate found three such filings, and prepared termination statements for each one. The problem? The first two were for the lease, the third was for an entirely separate $1.5 billion loan secured by specific GM assets.

The associate drafted the papers, and they were sent to various attorneys and senior folks at GM and JP Morgan, all of whom signed off on the proposed filing. None of these people realized that by filing these documents, GM would be terminating it's initial filing statement concerning the $1.5 billion loan. 

This was a colossel mistake, to put it mildly. By all accounts, neither GM nor JM Morgan intended to terminate the loan or untether the identified assets that secured the loan. But, these sophisticated parties, through their highly trained counsel, drafted documents that expressly and plainly did just that. These professionals reviewed these documents and then executed and published them. In other words, they plainly meant to execute and publish these termination statements, which contained language they expressly approved.

A SDNY Bankruptcy Court determined that the parties should be forgiven for their mistake, because they did not intend to terminate the filing of the $1.5b secured loan statement. The unsecured creditors, who suddenly realized that there was another $1.5b that might be available to them, appealed to the Second Circuit, which certified the matter to the Delaware high court. Delaware, in turn, ruled, "If parties could be relieved from the legal consequences of their mistaken filings, they would have little incentive to ensure the accuracy of the information contained in their UCC filings."

Based on this logical bit of reasoning, the Second Circuit opined, that "It is clear that although JPMorgan never intended to terminate the Main Term Loan UCC-1, it authorized the filing of a UCC-3 termination that had that effect. . . .Nothing more is needed."

Now this has nothing to do with any area of law in which I practice or claim to have more than a slight understanding. But, as a lawyer who routinely drafts pleadings and discovery responses, and as an attorney who counsels clients on their public statements, and drafts and executes releases, settlement agreements, and all sorts of stipulations and proposed orders, it is a reminder to pay attention to detail.

Malicious Prosecution Claims in a Post-Rehberg World

Courtesty of http://www.probono.net

A decision civil rights lawyers have been waiting on, at least in the Second Circuit's jurisdiction where I practice, since the Supreme Court granted police officers civil immunity for lying to grand juries has finally issued, and it's very much a win for the good guys. Yes, I mean us.

In Coggins v. Buonora, 13-4635 (here) -- briefed and argued by friend and outstanding attorney, Scott Korenbaum -- the Second Circuit squarely addressed the soupy quagmire that resulted from the Supreme Court's decision in Rehberg v. Paulk in 2012. In Rehberg, the Court ruled that police officers could not be sued for lying to grand juries, even if there was no doubt that they had knowingly presented false testimony in order to secure an indictment. At first blush, Rehberg appeared to sound the death knell for causes of action sounding in malicious prosecution or denials of a fair trial. Municipal defense lawyers and lying cops everywhere began to celebrate, as it appeared that one could now frame an innocent man with abject impunity, free from any concern that manufacturing or withholding evidence from grand jurors in order to bring about a criminal prosecution could be considered unconstitutional. Thankfully, such a broad reading of Rehberg was overly optimistic.

To understand the issue, one must consider the intertwining doctrines at play. A person arrested for a crime she did not commit may have a claim for false arrest. However, the scope of a false arrest claim ends once she is arraigned (meaning, first brought before a judge and advised of the charges). If the person is prosecuted beyond arraignment, her cause of action would be for malicious prosecution. She may also have a claim for denial of a fair trial, but that's a different topic for another time.

To sustain a malicious prosecution claim, a plaintiff must show (i) the defendant caused her to be prosecuted, (ii) without probable cause for the prosecution, (iii) and did so with malice, and that (iv) the charges were eventually terminated in her favor.

Prong number one is satisfied if the defendant officers drafted and forwarded arrest paperwork to prosecutors, and otherwise communicated the (false) facts underlying the arrest to prosecutors, and that the prosecution was initiated based on these allegations. A jury can find malice exists if it believes the officer lied about the circumstances of the arrest, or otherwise was trying to bring about the conviction for an improper purpose. A favorable termination generally means an acquittal, a dismissal on the prosecutor's motion, a dismissal on speedy trial grounds, or any other reason that is not inconsistent with innocence. The tricky point here is probable cause.

When a grand jury issues an indictment, it is presumptively a finding that probable cause exists for the prosecution. A plaintiff can rebut that presumption, but must show that the officers brought it about by falsifying or withholding material evidence, or through some other form of fraud or misconduct. You could be forgiven for concluding that a police officer lying to a grand jury would be precisely the sort of fraud necessary to show that the officer procured the indictment through fraud. And until a few years ago, you'd be right.

But in Rehberg, the Supreme Court concluded that principles of GJ immunity ought to extend to police officers, and thus they could not be sued for their testimony in GJ proceedings, even if demonstrably and deliberately false. They could be criminally charged by the state, but not sued by the target of their lies.

Ecstatic municipal lawyers rejoiced. After all, if you needed to show that the cop lied to or committed a fraud upon the GJ to rebut the presumptive probable cause, but could not sue over that testimony, then surely the existence of an indictment would put the kibosh on any possible malicious prosecution claim.

In response, civil rights lawyers argued, and many district courts agreed, that if the plaintiff could show that the officer procured the indictment by lying to the prosecution well in advance of the presentation to the GJ, and thus the GJ was ultimately misled by the offending officer, the plaintiff would have properly rebutted the presumption of probable cause. Thus, the GJ testimony might be relevant as evidence of the statements the officer had been making to the prosecutor since the arrest, or to confirm that the officer had withheld evidence, but the testimony itself was not the issue. The plaintiff was not suing because the officer had lied to the grand jury, but rather because of all the lies that had caused the prosecutor to present the case for indictment in the first place.

But the spectre of Rehberg continued to haunt malicious prosecution actions as defense counsel sought to muddy the waters by invoking Rehberg at every turn. The Court of Appeals' ruling on January 13, 2015, clearly and definitively cut defendants' arguments off at the knees.

In Coggins, the Second Circuit was presented with, in simplified terms, an arrest of Darryl Coggins by two officers, Craig Buonora and James Vera, for weapons possession. Coggins was prosecuted based on factual claims made by Buonora and Vera to prosecutors. Eventually, the case was presented to a grand jury. Meanwhile, another officer told Coggins's lawyer that the cops were lying. He passed that info to prosecutors, who opened an investigation which resulted in Buonora's arrest, prosecution, and conviction for perjury.

Buonora sought to have the case dismissed, arguing that plaintiff's entire lawsuit turned on the undisputed fact that Buonora lied to the grand jury. This testimony, however undeniably perjurious it may have been, simply could not be the basis for plaintiff's civil action. The Second Circuit, affirming the district court's underlying ruling, agreed, finding that Buonora was immune from any action that turned on the giving of this testimony.

However, to the extent that plaintiff's claims were based on Buonora's falsified police reports and lies told to the prosecutor following the arrest (not to be confused with the lies he may have later repeated when the prosecutor was prepping him to testify, for which he would still be immune), as well as the withholding of truthful, accurate, material, and exculpatory facts, those claims were perfectly fine. The fact that the officer repeated those lies to a grand jury would not protect him from liability for all the other times he had told these lies or withheld the truth.

The Second Circuit noted that to hold otherwise would effectively allow officers to tell all sorts of lies to prosecutors, make evidence up out of whole cloth, and destroy or suppress evidence to further cover up their misconduct and keep the criminal prosecution alive. As long as these officers could get in front of a grand jury, they would be forever shielded from any civil liability, no matter how unconscionable their actions had been. The test articulated by the Second Circuit was fairly simple:

[A district] court should determine whether the plaintiff can make out the elements of his § 1983 claim without resorting to the grand jury testimony.  If the claim exists independently of the grand jury testimony, it is not 'based on' that testimony, as that term is used in Rehberg. 

In other words, if the lies and misrepresentations at issue occurred outside of the grand jury, then plaintiffs' malicious prosecution claims are safe. It's a solid ruling grounded on both policy and Rehberg itself. This ought to help clear the air.

Marching on Montgomery

Almost 50 years ago, Martin Luther King, Jr., participated in a historic march from Selma to Montgomery, Alabama, to call attention to the ongoing fierce opposition to black voter registration, despite the Civil Rights Act passed in 1964.

My old friend Matthew's father, Stefan Sharff, and several of his film students, made a short film based on footage they shot during the march. Referred to as an intimate documentary, it is an interesting piece, about 17 minutes in length, that captures the tension of the time. The hovering helicopters and armed National Guardsmen create a sense of foreboding, a suggestion that violence may be imminent. At the same time, the marchers' constant movement forward reflects progress in the face of resistance, and the marchers' resolve and resiliency provides hope, one that is rewarded when they reach their destination, and MLK delivers his speech.

It is a compelling snapshot of America at a crossroads in early 1965, perhaps a month before I was born. It is now 50 years later, and while society has made great progress in many respects, we have barely moved an inch in others.

I urge you to watch Sharff's film, and ask yourself, how far along are we really, and how much further do we have to travel. It's a discussion we all ought to be having, although we never do. And so, here we are, so much further down the road, and yet right where we started many years ago.

Charles Hynes: the Gift that Keeps Giving

Former Brooklyn DA Charles Hynes, who left behind a tarnished legacy, to put it kindly, is about to come under renewed scrutiny. No, I'm not talking about possible criminal charges for stealing misusing forfeited drug monies to benefit his electoral campaign; that's something else. Rather, yet another case has surfaced where Hynes's office may have prosecuted an innocent man, withheld exculpatory evidence, and knowingly proceeded with a criminal case founded on police misconduct. Yes, defendants, even in civil cases, usually deserve the benefit of the doubt. But at some point there is too much weight from too many separate allegations from unrelated people, and that presumption comes crashing down. Just ask Bill Cosby.

The short version is that Clarence Bailey was convicted by a Brooklyn jury of attempted murder following a one-witness identification trial, and sentenced to 20 years. He spent a total of five years in jail before his conviction was vacated by a state appellate court on the basis that it was against the weight of the evidence. More simply, the appellate court found that the witness was plainly unreliable and that there was not enough evidence of guilt to sustain the conviction. Witnesses had testified following the jury's verdict, and again during the now-pending civil case, that NYPD detectives had threatened and forced them to inculpate Bailey.

Another Innocent Man Cleared in Brooklyn

Ret. Dt. Louis Scarcella

The other day, Justice Raymond Guzman, sitting in Kings County Supreme Court, vacated the conviction of Derrick Hamilton, who had spent more than 20 years in prison for a crime he did not commit. No, this is a not a repeat of prior posts (Here, here, and here, for example). Hamilton was released on parole in 2011, and now is entirely free.

As the NY Law Journal notes, "The vacatur is the latest in a growing list of convictions that District Attorney Kenneth Thompson has deemed unjust. Since Thompson became the borough's top prosecutor last year, his office has undone 10 convictions and dropped the appeal of a habeas grant to an 11th man." What is notable is not simply that four of these convictions flowed from arrests by NYPD detective Louis Scarcella, or that of the remaining 100 convictions that Thompson intends to review, 70 involve Scarcella. Rather, it is that Thompson still refuses to offer any broad criticism of Scarcella's work.

The Law of Unintended Consequences

The NYPD's recent union maneuverings have been both sophomoric and shortsighted, and reflect a childish petulance on the part of the leadership that threatens to further jeopardize community relations and the rank and file's relationship with the administration. They have also, however unintentionally, offered evidence that the NYPD has long been engaged in a policy of making unnecessary and gratuitous arrests.

The department has enjoyed the reflexive and unwavering support of City Hall since Rudy Giuliani was elected in 1993. While the unions and the administration would battle over money and contracts, no police misconduct was too severe to meaningfully dent the mayor's unconditional backing of the NYPD. Not the sodomizing of Abner Louima, not the 41 shots fired at the unarmed Amadou Diallo, not the shooting deaths of Sean Bell or Patrick Dorismond, nor any of the other many events that should have given City Hall pause. Now, at the first whiff of (entirely justified) criticism from the mayor, the unions have reacted like spoiled children facing their first real discipline from an exasperated parent.