The 2d Circuit's Busy Week, Pt. 2

Having just reversed itself in the face of an en banc rehearing in Garcia v. John and Jane Does, the Second Circuit next addressed the case of Matthews v. City of New York. This interesting case concerns a NYPD officer's claims that his bosses punished him for complaining about a precinct-wide quota policy. Not too surprisingly, management rewarded Matthews for voicing his concerns by making his life difficult. He sued on First Amendment grounds. The district court dismissed, finding that he was acting as a public employee when he complained, rather than simply as a citizen. The Court of Appeals reversed. It's a good decision that puts a bit of a dent in the controlling Supreme Court case, Garcetti v. Ceballos.

The 2d Circuit's Busy Week, Pt. 1.

The Second Circuit issued three opinions this week concerning various constitutional claims. If you want a detailed dissection of these issues you have come to the wrong place. If it's a superficial overview you want, with links to the decisions, read on.

First up, the Court throws out a false arrest suit brought by Occupy Wall Street protestors after they were arrested in October 2011. This opinion concerns the Court's reversal of it's own prior decision affirming the denial of qualified immunity NYPD officers for having arrested hundreds of Occupy Wall Street Demonstrators in 2011. Let me simplify: in Garcia v. John and Jane Does, the plaintiffs were OWS demonstrators who marched onto the roadway of the Brooklyn Bridge. The plaintiffs alleged, in part, that the officers had effectively invited the marchers to enter the roadway of the bridge (conduct that would otherwise be unlawful), then blocked off their exit from the roadway, and arrested them. The case was brought in the Southern District of New York before Judge Jed Rakoff.

Ginning Up the Base

Courtesy of Huffington Post

I have always loved the NY Post. Not because of it's great writing or enlightening reporting. And no, not for the gossip, although it's certainly salacious. Rather, I am a long-time fan of the paper's headlines. Eschewing any sense of "integrity," the Post abandons any pretense that it exists for any reason other than to sell papers and agendas. Towards that end, they have some great headlines.

Their stories often follow suit. For instance, on January 29, 2015, the NY Post ran a story about Ruhim Ullah, the machete man, if you will. According to the Post, Ullah menaced a police officer with a machete, causing the officer to shoot him in self-defense. Ullah then sued the officer for shooting him, and ultimately settled for $5,000. The author of the article, Selim Algar, wrote that Ullah's own lawyer had admitted the shooting was justified; a statement that made the already seemingly ridiculous lawsuit even more absurd. The Post's story triggered a mini-fire storm of criticism from police officials, and gave Mayor de Blasio just the opportunity he was seeking to show the NYPD what a good friend he was to the boys in blue.

The thing is, the Post story -- which concludes by juxtaposing the Ullah nuisance value settlement with settlements for $98 million to resolve a longstanding class-action discrimination case brought by minority FDNY applicants, for $41 million for the Central Park Five, and for $18 million to protesters arrested following the 2004 Republican National Convention, apparently to suggest that all of these settlements are similarly frivolous -- is fundamentally inaccurate.

Courtesy of FAIR

According to Fairness and Accuracy in Reporting ("FAIR"), contrary to the Post article, Ullah's lawyer denied ever saying that he thought the shooting was justified, stating that the Algar appeared to have simply made up the quote. Equally important, Ullah's claim, seemingly backed by some friendly witnesses, was that he had put down the knife prior to the shooting. The FAIR piece also notes that "the Post's Algar . . . has a dicey record on embellishing key facts." I am not arguing that this case was one that should have been brought. I don't know enough about the case to have an opinion. But one thing is clear: the facts were significantly different than what the Post presented, and that's before getting to the apparently fabricated quote from Ullah's lawyer.

I was in court with a supervising attorney from the City's Special Federal Litigation Unit shortly after the story broke (and after Mayor de Blasio made a speech suggesting that the City's lawyers had long followed a policy of paying out absurd amounts on frivolous lawsuits, much to the consternation of the lawyers he had just maligned). This lawyer made clear that while the machete case was eminently defensible, there was definitely more to it than what the Post had suggested, and that the settlement had made sense. Never one to allow subtle niceties to interfere with political expediency, de Blasio seized on the falsified machete story to make some hay in his efforts to woo back his officers.

That the story was inaccurate in a meaningful way is not surprising. The Post is more political cartoon than newspaper, and ought to be read as such. It's too bad that more self-styled serious papers and news outlets didn't pick up on FAIR's article or call the Post on its errors. Still, I guess that's entertainment.

Be Nice: the NYPD Gets Transcendent

The NYPD has instituted a new "be nice" retraining program. According to the NY Post, the City has started a mandatory three-day retraining program for 22,000 police officers in the wake of the Eric Garner killing, designed to teach officers how to deal with angry civilians. Apparently, the original course was so stultifyingly dull that officers were falling asleep. In an attempt to juice it up, the NYPD is now showing inspirational clips, such as the following two minute bit from the classic Patrick Swayze film, Roadhouse.



To be fair, the story did run in the Post; a daily paper not exactly renowned for its dedication to accuracy or objectivity. Politically speaking, the paper tends to be a big supporter of the rank and file, and is quick to denigrate Mayor de Blasio whenever the opportunity presents itself. Thus, the story may well be true, but then again it may not.

What is certainly true, as I've learned over the years in deposing police officers, is that the NYPD already teaches officers how to handle an unhappy public. For instance, there's already a course at the academy for the probie cadets called "verbal judo." Certainly this makes sense, as police officers have to deal with the public constantly, and really ought to have a basic understanding of how to avoid escalating confrontations and defuse potentially combustible conflicts.

In other words, it would really be a shame if the NYPD's already-existing training was inadequate, but it's even worse if this is really the intended cure.

$7.5 million to Another Wrongly Convicted Man in NY

More Brady violations, injuries, and acknowledgements. Dewey Bozella spent 26 years in prison for murdering 92 year-old Emma Crasper. It was a brutal murder, one in which a jury's finding of guilt beyond a reasonable doubt ought to carry significant weight. Still, in 2009, having acknowledged that criminal conduct "simply does not get more repugnant nor abhorrent than this [murder]," New York State Justice James T. Rooney vacated Bozella's conviction based on the prosecution having withheld various items of Brady material. On February 10, 2015, the Dutchess County legislature approved the settlement of Bozella's subsequent civil suit for $7.5 million dollars. Good for Dewey, but it comes more than two decades late.

The facts of the underlying criminal case are a bit lengthy to describe here. It is enough to say that the only evidence against the then 18 year-old Bozella was the testimony of two long-time criminals. These statements were contradicted by the two witnesses' prior statements, which they recanted after being offered a bevy of benefits, and were further controverted by other witnesses and the forensic evidence.

What Dewey Bozella was not provided with by prosecutors were an assortment of different statements by neighbors that would tend to support his claims of innocence and undercut the stories told by defendants' key witnesses, evidence further establishing that the murderer was a man named Donald Wise, and a police report concerning other, similar crimes that had taken place in the same neighborhood. All of this evidence would have helped Bozella at trial, particularly since the prosecution's case was more than a little weak, to put it nicely.

Yet, the prosecution did not produce it and Bozella was convicted. 26 years later he was freed, and some four years later, Dutchess County has agreed to pay restitution to settle his case, Dewey v. County of Dutchess, 10 CV 4917, which was brought in the United States District Court for the Southern District. While it's nice of the powers that be to tacitly acknowledge the harm that was done, nothing will give Dewey Bozella his life back.

This case is but one more reminder as to why Brady disclosures are so important, why it really matters when prosecutors and cops fail in their obligations, and the overwhelming likelihood that there are many, many more Dewey Bozellas than we will ever know of.

A Further Epidemic of Prosecutorial Misconduct

It was not that long ago that Judge Alex Kozinski, of the U.S. Court of Appeals for the Ninth Circuit, opined that there was an "epidemic" of Brady violations (referring to a failure by prosecutors to turn over exculpatory evidence), and suggested that this was a systemic problem that was further enabled by the chronic failure of judges to punish the offending prosecutors.

IPicking up where he had left off, Judge Kozinski, joined by two colleagues in an argument in Baca v. Adams a few weeks ago, excoriated California state prosecutors for providing false testimony in a murder for hire case. As Judge Kozinski stated, the prosecutors "got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way."

The L.A. Times has an excellent article on the case and the Court's comments. The video of the argument follows below. The state's attorney, Kevin Vienna, begins his argument 15:55 minutes into the video. The slow, steady attack begins almost immediately, and picks up steam steadily.

Seeking to hold prosecutors liable for such abuses is probably a lost cause, but these events underscore both the prevalence of this misconduct, and the lack of consequences for the guilty parties. As ought to be self-evident, when prosecutors are allowed to bend constitutional laws and prohibitions in the pursuit of convictions, it inevitably results in the conviction and imprisonment of innocent people, and substantial and lasting injury to the basic principles of fairness and due process that we like to pretend underlie our criminal justice system.

Non-Accountability, or Why Things Never Change

In mid-January, a jury in Brooklyn's Supreme Court returned a verdict in favor of Christopher Graham in the amount of $3.95 million. The number ought to rise about $4 million once legal fees and costs are considered. According to the NY Daily News, Graham, a Chaplain with the State Department of Corrections alleged that he was assaulted by police when they responded to a call at his apartment. He claimed that the officers deliberately twisted his leg until it broke, and then beat him some more, pulling his dreadlocks from his head, slamming him to the floor, and standing on his face and head. Graham also noted that the officers did not know what he did for a living until after the fact.

The Brooklyn jury deliberated for just 50 minutes before finding the officers and the City liable. For those of you unfamiliar with jury turnaround times, that is fast. It means that there was no doubt whatsoever in the jury's mind that the officers had done just what Graham said they did. 

What struck me when I read the News article was not simply that the primary offender -- an officer named Paul Aparo -- had a bit of a history with NYPD's IAB. Rather, it was this comment by NYPD Deputy Chief Kim Royster:

We review, in a variety of ways, all allegations of officer misconduct. A [verdict in] a civil case does not constitute a finding or even evidence that an officer has engaged in any misconduct.

Wow. Yes, Royster is technically correct that the civil jury's verdict is not an exact substitute for a departmental hearing. But that begs the question as to why there was no departmental hearing in the first place.

Here, a police officer is accused of deliberately twisting and forcibly breaking a man's tibia and fibia, resulting in two surgeries and post-traumatic arthritis, all without any justification (his defense sought to blame either Graham or Graham's girlfriend for causing the injuries). This is precisely the sort of gross misconduct that the NYPD ought to be interested in preventing, so surely they would have thoroughly investigated Graham's claims immediately.

Sadly, as is usually the case, the NYPD -- meaning the City, which knows it will be responsible for paying out to compensate the victims of police misconduct -- made no real effort to find out if Aparo and his colleagues engaged in this conduct. The NYPD then proceeds to dismiss the verdict, as though it ought to carry no weight and is unworthy of consideration. In other words, the NYPD stands by its man, regardless of the jury's verdict, regardless of the evidence, regardless, regardless, regardless.

This happens time and again. Officers misbehave. Badly. The City makes no effort to corroborate the claims. Instead, they deny and defend. Juries return verdicts finding that the plaintiffs have proven their allegations, and the City still does nothing.

The message to those cops that misbehave could not be clearer: there is no penalty for using excessive force, there is no penalty for arresting people without probable cause, there is no penalty for lying to prosecutors and courts, there is no penalty for deliberately violating the constitution. And if a jury find yous civilly liable? No problem, the City will pay the tab.

To face any real negative consequence, the officer would have to be criminally charged and convicted, and we know how unlikely that is.

Parenthetically, just to make a point, a couple of years I had a civil case following an arrest of my client where he spent several days at Rikers Island. During a later suppression hearing, the officers admitted there that they had lied to the grand jury and prosecutor, resulting in the ultimate dismissal of the criminal case. Even though there was no dispute that the officers had committed perjury, a fact now known to the prosecutors as well, no criminal charges were sought, and there were no consequences to the officers, even after the City paid my client. In other words, even in a perfect storm, criminal prosecution is unlikely. Just ask Eric Garner's family.

Every year, NYC releases figures showing how many millions of dollars were paid out to settle police misconduct cases. The City would like you to believe it's because us shysters, us shameless ambulance chasers, are bleeding New York dry. In actuality, the source of the City's woes is the ongoing misconduct itself. If the City wants to stop paying out such large amounts of money in compensation for their officers' misconduct, maybe New York ought to focus on its employees' behavior, rather than the litigation that such deliberate, unconstitutional behavior brings about. Just a thought.