Court Dismisses Takings and Due Process Claims Based On Town Rescinding Negative Declaration

Today's case discusses both land use and due proess claims under §1983. Plaintiffs applied to have their property in the Town of Union Vale designated an open development area, allowing the property to be subdivided into private lots with private roads. The first section of the project was approved in 1987, and the Board determined under SEQRA that the Project would result in no significant adverse impacts on the environment (“Negative Declaration”). Plaintiffs then applied for the next section of the Project, which the Board rejected, and Plaintiffs sued the Board in the Supreme Court, Dutchess County challenging the decision and raising a due process claim under §1983. The court denied Defendants’ motion to dismiss, found the Board's 2012 resolution rescinding the Negative Declaration invalid, and determined the rejection of Plaintiffs’ application for preliminary plan approval was arbitrary and capricious. The Board appealed and moved to reargue its motion for dismissal of Plaintiffs’ due process claims, with both motions eventually being granted.

The Board then called a public hearing and again rescinded the Negative Declaration, leading Plaintiff to file a second action in August 2013. Defendants removed to federal court, which declined to exercise supplemental jurisdiction over Plaintiffs’ Article 78 and state law claims and remanded those claims to state court. Defendants moved to dismiss the remaining claims.

The court first found that a negative declaration constituted a “final decision,” and that Defendant’s removal to federal court satisfied the requirement that Plaintiffs exhaust their state court remedies. Since the claim was ripe, the court next examined if Plaintiffs asserted a viable due process claims.

A constitutionally protected property interest in land use regulation requires an entitlement to the relief sought by the owner. Here, the Court found the Board's authority to rescind the Negative Declaration was not “narrowly circumscribed” and afforded the Board discretion to review “new information” and “changes in circumstances related to the project that were not previously considered” which may have a “significant adverse environmental impact.”  As such, the court found that Plaintiffs did not have a cognizable property interest in the Negative Declaration and Plaintiffs’ due process claim failed. The Court then granted the motion to dismiss.  

The case is Leonard v Planning Board of Union Vale, 2016 WL 67791 (SDNY 1/4/2016).

District Court Holds Requirement to Remove Pool Did Not Violate Fair Housing Act

Plaintiffs, whose son is considered disabled under Title VIII of the Civil Rights Act of 1968 (more commonly known as the Fair Housing Act (“FHA”)), brought suit seeking injunctive relief and a declaratory judgment against the Town of Farmington. The focus of their claims is the Town’s allegedly discriminatory conduct in granting a variance for an above-ground swimming pool with protective fencing, but further requiring that both the pool and fence be removed upon sale of the home or when the disabled son no longer resides there. Plaintiffs assert this requirement burdens them in violation of the reasonable modifications requirement of the FHA.

In order for Plaintiffs to successfully show a violation of the relevant section of the FHA, §3604, Plaintiffs must establish disparate treatment, i.e. that their son's disability was at least partly the basis for the Town’s decision or that the Town's action had a disparate impact or effect on disabled individuals.  Here, the Court found that the Plaintiffs made only conclusory assertions that the burden of removing the pool and fencing was based on their son’s disability.  Plaintiffs also failed to demonstrate that the decision to make the initial grant of the variance was made by officials who knew of the son’s disability. The Court held that such conclusory statements, absent actual allegations in the complaint regarding the Defendant’s intent to discriminate or facts sufficient to constitute disparate-impact under the FHA were wholly insufficient to support a claim. Accordingly, the Court granted the Defendant’s motion to dismiss.

The case was Austin v Town of Farmington, 2015 WL 3604671 (W.D.N.Y.).

Second Circuit Provides Guidance On False Arrest Claim For Obstruction Charge

The Second Circuit Court of Appeals recently ordered a new trial for a man (“Plaintiff”) who brought a false arrest claim against the City of New York (“City”) after he was arrested on an obstructing governmental administration charge. Plaintiff had been sitting and eating in a park to which access was limited to people with a child or a stroller. Police approached Plaintiff and asked him whether he had children with him, but Plaintiff refused to answer. The police officer then “took [Plaintiff’s] Jell-O and threw it out” to get his attention (seriously, you can’t make this stuff up….), at which point Plaintiff began yelling at the officers and was subsequently arrested for disorderly conduct and obstructing. Plaintiff brought a false arrest claim pro se, alleging the police lacked probable cause, which the jury decided in favor of the City.

On appeal, the Second Circuit ordered a new trial because the jury instructions were incorrect and could have affected the outcome of the trial. At trial, the judge had instructed that while refusal to answer questions by itself is not obstruction, “whether refusal to acknowledge or respond to police questions is considered obstruction... depends on the totality of the circumstances.” The Second Circuit detailed how this was incorrect, stating that New York law requires defendant to have interfered with police activity through either “(1) intimidation, (2) physical force or interference, or (3) any independently unlawful act.” Purely verbal interference, or the lack thereof as is the case here, may not satisfy the physical component under Penal Law §195.05.  The court further held that the basis for its ruling was rooted in the right to remain silent, as this guarantees that Plaintiff’s “constitutionally protected silence could not constitute any element of the crime of obstructing governmental administration, even if such silence interfered with the officers’ attempt to investigate.” The Court thus ordered a new trial.

A related point of interest, the Court also held that “obstruction of governmental administration cannot rest upon refusal to provide identification” either, something that is good to know in your everyday life.

The case is Uzoukwu v. City of New York and can be found here:

New York Agrees to Make Major Changes to Use of Solitary Confinement As Part of Settlement

Prison reform advocated scored another major victory last month, when the New York Civil Liberties Union reached a settlement agreement with the State of New York to make significant changes to how New York uses solitary confinement (the judge’s approval is still pending). At the time of the agreement, it is estimated that there were roughly 4,000 prisoners in New York currently in solitary confinement. Under the terms of the proposed settlement, around 1,000 of those prisoners will be removed from solitary confinement and placed in less restrictive housing, though not necessarily released back into the general prison population. In addition, new restrictions will be placed on the use of solitary confinement going forward, including provisions:

(1) Limiting the reasons a prisoner can be placed in solitary confinement

(2) Limiting the amount of time a prisoner can spend in solitary confinement

(3) Prohibiting placing pregnant women in solitary confinement except in “exceptional circumstances”

(4) Ending the use of food as punishment for prisoners in solitary confinement.

These changes follow similar reforms to the use of solitary confinement in other large states over the past year, including Illinois and California. Even so, the use of solitary confinement will continue to impact tens of thousands of inmates in the United States over the coming years, and reform advocates will almost certainly continue to push for strictly limiting the practice which has been well documented to drive prisoner’s to despair, madness, and even death. Such observations about America’s prisons go back as far as Alexis de Tocqueville’s famous book “Democracy in America” in the 1820s.

One beacon of hope, however, is that the Supreme Court may take up challenges to the practice in the coming years. This belief is spurred by a concurring opinion authored by perennial swing vote Justice Anthony Kennedy in the case  Davis v. Ayala in June of 2015. Though the case itself did not address solitary confinement (it focused on jury selection), Justice Kennedy’s concurrence railed against the plaintiff’s long imprisonment and the practice of solitary confinement in general, all but inviting challenges under the 8th Amendment’s prohibition on Cruel and Unusual Punishment.  

Second Circuit Rules Claim Based On Perceived Sexual Orientation May Proceed Under NY Law

Under New York’s Humans Rights Laws, it is illegal for an employer to discriminate based upon sexual orientation.  This protection extends to every New Yorker. It protects you if you are straight, gay… and in the wake a recent summary order by the Second Circuit, if you are straight and people simply think you are gay. Dingle, who appeals from the Eastern District of New York  pro se, had brought a hostile work environment claim against his former employer Bimbo Bakeries (whose very name makes a hostile work environment claim seem plausible) alleging that he was subjected to harassment by coworkers who believed him to be gay.

On appeal, the Second Circuit issued a summary order stating that while Title VII does not offer comparable protections, New York’s laws "expressly protect against discrimination based on both perceived as well as actual sexual orientation… [meaning] Dingle's actual sexual orientation is not at issue; he is protected by these provisions if he suffered abuse because others believed, even incorrectly, that he is gay." It then remanded the case back to the District Court with instructions to “consider in the first instance whether Dingle alleged a plausible perceived sexual orientation hostile work environment claim and retaliation claim” under both New York State’s and New York City’s Human Rights Law.

It is worth noting that as a summary order, this decision has limited precedential value and the Second Circuit still has yet to directly rule on this issue. Even so, the prospects seem bright after this order given that it was based on the express language of the statute. And, perhaps more importantly, the order urged the District Court to appoint Dingle an attorney, which certainly cannot hurt his case.

The case is Dingle v. Bimbo Bakeries 2015 WL 8952903 (2d Cir.)

Appellate Division Sides With New York City Police In Malicious Prosecution Case, Part 2

This is the second half on our post looking at Batten v. City of New York and its impact on how courts examine malicious prosecution claims. 

In ruling that the defendants had probable cause, a complete defense to malicious prosecution, the Appellate Division focused extensively on the steps taken by the police during the investigation. After the police canvassed for witnesses, the sole eyewitness they found identified Batten as being the perpetrator. After that identification, the police checked determine if Batten was in prison at the time of the crime, they spoke with Batten’s godfather about Batten’s alibi, checked the criminal backgrounds of the store’s employees, and conducted multiple interviews.

To rebut this, Batten presented evidence of the confidential informant’s information and that the police gave the employee mentioned to federal immigration authorities rather than investigating the CI’s information. He also noted that the description by the eyewitness did not perfectly match his own several days after the crime. Even so, the Court noted that:

“while the failure to make further inquiry when a reasonable person would have done so may be evidence of lack of probable cause, the mere failure to follow some leads does not amount to an egregious deviation from accepted practices or fraud. Police investigators are not obligated to pursue every lead that may yield evidence beneficial to the accused… [and] have not necessarily improperly concealed evidence every time a plaintiff is able to show that the police could have conducted further investigation”

On the whole, this decision will provide clarification for future malicious prosecution cases about the line between simple negligence in a police investigation and what conduct would be considered “egregious.” This will be particularly helpful for municipalities and attorneys in planning litigation strategies or mapping out potential settlements in such cases. It also indicates we may see more of these kinds of detailed factual analyses in the future.

The case was Batten v. City of New York, 133 A.D.3d 803 (2nd Dept. 2015).

Appellate Division Sides With New York City Police In Malicious Prosecution Case, Part 1

It was a happy Thanksgiving for four retired NYPD officers, as the day before the Appellate Division, Second Department threw out the malicious prosecution claim against them. Specifically, the Appellate Division reversed the Kings County Supreme Court’s denial the defendants’ motion for summary judgment and dismissed any claims for punitive damages. The case, Batten v. City of New York, sheds new light on how to distinguish between negligent investigations and an “egregious deviation from police procedures” sufficient to defeat a presumption of probable cause.

Under New York law, to succeed on a claim alleging malicious prosecution, a plaintiff must establish: (1) the initiation of a proceeding by the defendant against the plaintiff that (2) terminated in the plaintiff’s favor and (3) was initiated absent probable cause and (4) with malice. See Colon v. City of New York, 60 N.Y.2d 78, 82. Regarding probable cause, an arrest warrant or grand jury indictment creates a rebuttable presumption probable cause was present. Id. One way to overcome this presumption is with evidence that the conduct of the police deviated from proper police procedures so greatly as to demonstrate intentional or reckless disregard for procedure. See Lee v. City of Mount Vernon, 49 N.Y.2d 1041, 1043.

Here, the plaintiff was arrested, indicted, and later convicted of second degree murder after being identified in a photo array as the perpetrator of an armed robbery and homicide in Brooklyn in 1983. After his appeals to the Appellate Division and Court of Appeals were rejected, he began filing Freedom of Information Law (FOIL) requests for the police documents related to his prosecution and conviction. Of the files he received, several were allegedly withheld from him and his attorney during the trial, including one documenting a call from a confidential informant to the police after his indictment suggesting the involvement of another employee of the store in the robbery. Based on this document, Batten filed a writ of habeas corpus with the Eastern District of New York and was released in August 2003. He then commenced a suit against the city and various retired officers alleging civil rights violations, including malicious prosecution.

The ruling itself will be discussed in the second part of this post. Once again, the case was Batten v. City of New York, 133 A.D.3d 803 (2nd Dept. 2015).

Court Finds Fourth Amendment and Procedural Due Process Claims in Town’s Removal of “Litter” From Plaintiff’s Property, Part 3

This is the third and final part of this series of posts. We’ve already looked at the claims regarding bill of attainder, due process, and the Fourth Amendment as it relates to the Town’s removal of what it deemed “litter” and a public nuisance from plaintiff’s land. Today we will look at the final claim and the Town’s affirmative defenses.

The final claim the court considered was an equal protection claim, alleging that the plaintiff’s land was singled out for disparate treatment relatively to comparable properties. We won’t delve much into this beyond saying that the plaintiff failed to show that the properties were sufficiently, but if you want to read more on a class of one / disparate enforcement claim, there was a blog post devoted entirely to the topic earlier last week (on a related note, the case regarding concert promoters at Woodstock, NY discussed therein was upheld by the Second Circuit last week).

Finally the Court considered whether the Town, Town Board, and Town agent defendants  were entitled to any immunities from suit. Of these defendants, only the claims against the Town survived, as the court ruled that the Town Board defendants were entitled to absolute legislative immunity from liability on these claims, while the employees who were acting pursuant to a valid resolution of the Town Board were entitled to qualified immunity, insofar as they were acting in an official capacity. The Court then issued an order to proceed based on the findings discussed in these three posts.

Once again, the case is Ferreira v Town of East Hampton, 2014 WL 5637882 (E.D.N.Y.).

Court Finds Fourth Amendment and Procedural Due Process Claims in Town’s Removal of “Litter” From Plaintiff’s Property, Part 2

This post continues looking at the claims brought in our last post, where “litter” was removed from the plaintiff’s property pursuant to Town resolution, thus spurring a variety of constitutional challenges to the Town’s actions. The first claim we discussed was a bill of attainder claim, which was found insufficient to survive summary judgment.

Next the Court looked at the due process claims. It was not disputed that the Town had been aware of the plaintiff’s property for years before finally taking action. Given this long gestation period before the Town produced a so-called “emergency” action to address it, the Court found that making due process claim was plausible on the grounds that the Town had arbitrarily decided to declare the conditions on the Plaintiff’s property to be an immediate danger to the public. Thus this claim was allowed to proceed.

Third, the Court looked to the Fourth Amendment Claim. Generally speaking, a warrant is not required to abate a public nuisance, and here the property seized was considered a public nuisance. The hitch was that the entry onto the plaintiff’s property to seize the property in the first place still must be reasonable under the Fourth Amendment. Moreover, the property removed included not only the likes of inoperable cars, but tools belonging to the plaintiff. Given this, the Court found that there were genuine issues of material fact regarding the reasonableness of the seizure. Thus this claim also survived summary judgment.

We will look at the final claims and affirmative defenses in the next post.

Once again, the case is Ferreira v Town of East Hampton, 2014 WL 5637882 (E.D.N.Y.).

Court Finds Fourth Amendment and Procedural Due Process Claims in Town’s Removal of “Litter” From Plaintiff’s Property, Part 1

Plaintiff owns real property at 63 Navy Road in Montauk, New York. This property had so many inoperable cars and other items on it that it was considered by the Town to be a public nuisance. After remaining in this condition for years, the Town passed a pair of resolutions authorizing the removal of “litter,” as defined in the Town Code, from the property.  Individuals acting on behalf of the Town then entered the plaintiff’s property and removed the various items scattered throughout. Plaintiff responded by bringing suit alleging the resolutions were unconstitutional bills of attainder, that he was denied his property absent procedural and substantive due process, that he was subject to an unreasonable search and seizure under the Fourth Amendment, and that taken together these acts constituted unequal treatment in violation of Equal Protection.  The Town moved for summary judgment.

The Court addressed each of these claims in turn. First, it addressed the bill of attainder claim. In the Second Circuit, three factors are considered when alleging unconstitutional punishment via bill of attainder: (1) whether the challenged statute falls within the historical meaning of legislative punishment, (2) whether the statute, “viewed in terms of the type of severity of burdens imposed, reasonably can be said to further non-punitive legislative purposes,” and (3) whether the legislative record “evinces a [legislative] intent to punish.” ACORN v. United States, 618 F.3d 125, 136 (2d Cir.2010).

Having found insufficient evidence presented of a clear legislative intent to punish the plaintiff, the Court dismissed this claim.

We will continue looking at the remaining claims in the next post.

The case is Ferreira v Town of East Hampton, 2014 WL 5637882 (E.D.N.Y.).

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