Wow! This is better than the movies! If you're tired of the normal, staid Second Circuit decisions, you might want to read the facts of State v. Tanella, decided June 30, 2004. It's really riveting stuff (written by Judge McLaughlin). DEA agents had Egbert Dewgard (his parents must have hated him), an alleged drug dealer, boxed in. But that did not stop Dewgard. Judge McLaughlin writes:

"[R]amming Deterctive Corcoran's car and driving at high speed onto the sidewalk, Dewgard managed to escape. Agents Peterson and Tanella sounded their sirens. Detective Corcoran initially lend the pusuit, but because he had no siren, he pulled over and allowed the three agents to pass him. As Dewgard raced through the streets of a residential neighborhood, Peterson and Herbel [DEA agents] lost sight of Deward, leaving Tanella alone to pursue him. During the high-speed chase, Tanella continually used his radio to apprise the other members of the field team of his location.

"About three quarters of a mile into the chase, Dewgard careened, for a second time, ontot the sidewalk, where his car wedged between a telephone pole and a fire hydrant, narrowly missing a pedestrian who was pushing her three-year old daughter in a stroller.

"Dewgard jumped from his car and fled on foot carrying the black plastic bag [drugs]. Tanella radioed the other officers and pursued Dewgard on foot. He was about twenty-five feet behind Dewgard. Tanella displayed his badge, removed his gun from its left-side holster, identified himself as a police officer, and shouted to Dewgard to stop. Dewgard continued running down New York Avenue. Tanella testified that, because he was behind Dewgard, he was unable to see if Dewgard was armed.

"Dewgard finally stumbled and landed between a parked car and a parked van. He dropped the black bag, which was later found to contain three kilograms of cocaine. Tanella then caught up to Dewgard, who was still on the ground, and jumped on top of him. The two men struggled between the parked vehicles, with Dewgard continuing to resist arrest. At some point while they wrested, Tanella fired one shot which hit the lower right portion of Dewgard's back and killed him. Within a minute, Agents Peterson and Herbel, who had lost contact with Tanella during the foot chase, arrived at the scene. A search of Dewgard revealed he had no gun."

Whew! Well, of course the State tried to prosecute Tanella for manslaughter. Tanella petitioned the United States District Court for the Eastern District of New York for removal under 28 U.S.C. 1442(a)(1), which was granted. He then moved to dismiss the indictment, claiming immunity under the Supremacy Clause of the United States. The State argued that the issue of immunity should go to the jury. The District Court granted the motion, dismissing the indictment with prejudice and finding that Tanella "did no more than what was necessary and proper in the discharge of his duty " as a federal agent and was thus immune from prosecution.

The Second Circuit affirmed. It claimed that Tanella had a reasonable belief that Dewgard was about to grab his gun. Under such circumstances, even if Tanella incorrectly evaluated the circumstance, he was immune from prosecution under the Supremacy Clause.

The decision can be found here.

Something's not kosher. That's what the plaintiff in Yerushalyim v. United States Department of Corrections thought. He brought an action against the United States Department of Corrections complaining that he was deprived of kosher food during his 49-hour incarceration in November 2000. Unfortunately for Mr. Yerushalayim, there is no such agency as the United States Department of Corrections. The prisons are run by the Federal Bureau of Prisons. The District Court dismissed his action on the ground that federal agencies are immune from suit for such claims and even if Mr. Yerushalyim has intended to sue the Bureau of Prisons, the Bureau was immune from suit. Mr. Yerushalayim moved for relief from the order, requesting leave to change the caption to name the Bureau as the sole party in place of the non-existent Department of Corrections. He did not seek leave to add as parties the individual federal officials who were allegedly responsible for the violation of his rights. The motion was denied as untimely.

Yerushalayim did not give up. He appealed from both orders and sought leave to proceed in forma pauperis, but did not mention the issue of amending his complaint to name the relevant federal officials. The Court granted the motion and appointed counsel to brief the issue of the denial of his kosher meals, but dismissed as frivolous his appeal from the order denying his mtoion for relief from the judgment.

By the time counsel was appointed, the 3-year statute of limitations had passed on his constitutional claims. If Yerushalayim were to amend his complaint, it would be untimely unless it could relate back. However, since Yerushalayim had been put on notice by the Court's original order that he had named the wrong parties, the amendment would not relate back to the initial pleading. Hence, he was time barred.

Yerushalayim had one other arrow in his quiver. He had sued under the Religious Land Use and Institutionalized Persons Act. The Court, however, held that the Act does not create a cause of action the federal government or its correctional facilities, and, hence, Yerushalayim had no claim under the Act.

The decision in the case can be found here.

In today's New York Law Journal, it is reported that Judge Calabresi has apologize profusely for the comments he made at the American Constitution Society Conference a few days ago. This apology was contained in a letter released by the Second Circuit. I have posted on this story previously here and here. Unfortunately, I could not give a direct link to the article. I'm not sure if it's even available on line, but it's on page 2 of the paper edition.

Update: Here's a link to the Reuter's story on Judge Calabresi's apology.

Today's New York Sun has another article on the Calabresi affair. Evidently, the judge was (or may have been) on Clinton's short list for the Supreme Court. (Sorry, in that I am not a subscriber to the Sun's electronic edition, I cannot link to the article.) Of course, in that he's 71 now, it's unlikely that he would be nominated if Kerry is elected, and it is pretty certain, in light of his remarks at the American Constitutional Society, which I posted about here, that he will get the nod from Bush. Hmmm, I still haven't heard anything about impeachment. Is the House getting mellow?

Well, the New York State Court of Appeal's docket is getting heavier due to certified questions from the Second Circuit. On June 21, 2004, as reported yesterday, the Court certified a series of questions related to common law copyright. On June 18, 2004, the Court in State Farm Mutual Automobile Ins. Co. v. Mallella, the Second Circuit has certified the question of whether an insurer may refuse to compensate medical providers for healthcare services that are within the scope of the no-fault program in every way except that they are provided by health care professionals employed by medical practices that, under state education and business laws, are unlawfully incorporated. The decision can be found here.

The Second Circuit, on June 21, 2004, certified three question to the New York State Court of Appeals relating to common law copyright of recordings made prior to February 15, 1972. The questions are:

1. whether the expiration of the copyright under the law of the United Kingdom (where the recordings were made) precludes any claim under New York's common law of copyright.

2. whether copyright infringement under New York common law requires some or all of the elements of the tort of unfair competition

3. whether a claim of copyright infringement under New York common law is defeated by showing that the allegedly infringing work is a "new product."

The infringing work at issue in Capitol Records, Inc. v. Naxos of America, Inc. consist of restorations of recordings of important classical performances. The decision in the case can be found here.

Oh boy! If you haven't seen this article in today's New York Sun (a paper that I read regularly but by fluke did not pick up today), check it out. At the annual meeting of the American Constitution Society, Judge Guido Calabresi of the Second Circuit compared George W. Bush's ascendency to the presidency to that of Mussolini and Hitler.

Now, of course, the Judge was not comparing Bush to Hitler; he specifically said he was not. He was merely pointing out that those politicians who are put into power without winning an election sometimes try to "exercise much power," which might be a legitimate complaint against the current officeholder. But one would expect a little more tact from an Article III judge. And I'm saying this from the prospective of a Democrat who often refers to Bush as The Usurper.

How long do you think it will it take the rightwingers to call for the impeachment of the Judge? Especially since the Judge also said that Bush should be expelled from office, claiming that this view was based not on politics, but "the structural reassertion of democracy." Hmmm. I think I hear knives being sharpened at this very moment on Capitol Hill.

At any rate, thanks to Howard Bashman of How Appealing for cluing me in to this story. Eugene Volokh has this to say about the Judge's statement. The Curmudegeonly Clerk has this to say.

Oops! Two parole officers attempting to pick up an absconded parolee instead picked up a lawsuit. But the doctrine of qualified immunity saved them from liability. The parole officers had been provided erroneous information as to the whereabouts of the parolee. As a result, they came into the residence of a person who was not the parolee and searched the premises. Once they found out that the information was erroneous, they left. A lawsuit ensued. The District Court declined to grant summary judgment on the plaintiff's Fourth Amendment claim, holding that there were triable issues of fact relating to the legality of the warrantless search. In a decision issued on June 10, 2004, the Second Circuit reversed, holding that the parole officers' actions were reasonably related to their duty to supervise the parolee, the search complied with the rules and regulations of the State Division of Parole, and the officers reasonably believed that they were entering the residence of the absconded parolee. Under these circumstances, the parole officers were entitled to qualified immunity. The decision in Moore v. Vega can be found here.

Readers of this blog may be interested in Matthew Lerner's blog on New York Civil Law. I came across it last week and found it to be quite interesting. And since he mentioned this blog in a recent post, I thought I would return the favor.

Off topic. Howard Bashman of How Appealing makes a good point in this post, in which he wonders who on the Supreme Court will have to recuse himself (or herself) from any subsequent case challenging the constitutionality of the Pledge of Allegiance. As we all know, Scalia recused himself because of public comments he had made about the Newdow case before it reached the Supreme Court. Will Scalia have to recuse himself again if a new case on this issue reaches the Supreme Court? And what about O'Connor, Thomas and Rehnquist, all of whom are on the record as having an opinion on the merits of the issue? And when you think of it, Scalia, Thomas and Rehnquist are all on record as stating that there is no constitutional right to an abortion under any circumstances. Should they recuse themselves from any future abortion cases? I'm not sure what the answer is, but it sure is an interesting question.

UPDATE: Lyle Denniston at SCOTUS also agrees that this is an interesting question in this post.

Off topic. I just want to refer my readers to a new legal blog on intellectual property law authored by Chris Rush Cohen, a third year law student at my alma mater, the Benjamin N. Cardozo School of Law. The blog can be found here. I think it's really good. Check it out.

An issue of New York law, which had been referred to the New York State Court of Appeals by the Second Circuit, has been decided. The issue was whether punitive damages were available against a municipality under New York City Human Rights Law. The New York State Court of Appeals, in Krohn v. Katt held that such damages were not available. (That Court's decision can be found here.) The Second Circuit allowed the parties to present letter briefs commenting on this decision. In light of the state court's decision, the Second Circuit, in Krohn v. Katt, held that the vacatur of the punitive damages award by the District Court was proper and affirmed. The Second Circuit decision can be found at the Second Circuit website. The decision is dated June 9, 2004.

The Second Circuit Court of Appeals is closed today for the Day of Mourning for the late Ronald Reagan. No new cases.

In a case that gives new meaning to the term "secret justice," the Second Circuit has held that the press has a qualified First Amendment right to access to docket sheets of cases in the Connecticut state courts. The Connecticut state court system had, over the past 38 years, decided thousands of cases where sealing procedures prohibited court personnel from giving the public access to the court files, and, in some instances, from acknowledging the cases altogether. The plaintiffs, newspapers, found out about this practice and uncovered it in an article, which implied that, while some cases may have been legitimately sealed (juvenile records, bar grievance cases), others may have been sealed at the behest of prominent parties, who did not want litigtion in which they were involved made public.

The article had the desired effect of reform, but the newspapers wanted to find out what the Courts had been hiding in the past, and commenced this action. They sought an order, pursuant to 42 U.S.C. 1983 and 1985, requiring the Court personnel to provide them with the docket sheets to the sealed cases. The defendants argued that they lacked the power to provide the relief sought in that the files were subject to court orders and/or statutes. The district court agreed with the defendants and dismissed the action.

Although the district court had not reached the First Amendment issue, the Second Circuit found that it was "a matter of law suitable for determination by an appellate tribunal in the first instance." The Court, following estblished precedent, noted that the First Amendment secured the public's capacity to inspect certain court records. The Court stated that "the ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible. In this respect, docket sheets provide a kind of index to judicial proceedings and documents, and endow the public and press with the capacity to exercise their rights guaranteed by the First Amendment." Other circuits that had considered similar issues had also found that the First Amendment provides a right of access to docket sheets.

As to the issue of whether the plaintiffs could provide the relief sought, the Court found that the record was inadequate to make a determination. The defendants had not presented any orders or statutes that would preclude them from turning over the requested docket sheets. The Court determined that a remand on this issue was warranted.

Finally, the Court held that none of the abstention doctrines were applicable to the case.

The decision in Hartford Courant Co. v. Pellegrino can be found here.

On June 4, 2004, the Second Circuit decided Weiler v. Chatham Forest Products, Inc.. That case raised the question of whether a private individual could sue in federal court , under section 304(a)(3) of the Clean Air Act, to challenge the determination of the New York State Department of Environmental Conservation ("DEC") that the defendant may proceed with the construction of a factory without obtaining a particular permit.

The defendant proposed to build an oriented strand board manufacturing factory (whatever that is) in Lisbon, New York. The manufacturing process produces pollutant that may be emitted into the atmosphere. The defendant did not obtain a "major source" permit, which the plaintiffs claim is required. The defendant claims that it does not require such a permit in that the DEC had determined that such a permit was not necessary and issued a different permit (a synthetic minor source permit).

The district court dismissed the case, holding that federal judicial review is prohibited under the circumstances. The Second Circuit reversed and remanded.

The Court noted that citizen suits play an important part in the enforcement of the Clean Air Act. Since Congress did not preclude such suits or even evidence an intention to do so, there would seem to be no reason to preclude such suits. The Court rejected the argument that the existence of other mechanisms of enforcement preclude citizen suits.

The Court remanded that action for further proceedings consistent with its decision. The decision can be found at the Second Circuit website.

The Second Circuit, on June 4, 2004, held that the School District of Mamaroneck and the School District of Pelham had violated Title IX of the Education Amendments of 1972 and its governing regulations by holding men's soccer in the fall, when the men's team could participate in the New York Regional and State Championships, and holding the women's soccer program in the spring, when the women's team could not so participate. The decision in Mccormick v. School District of Mamaroneck can be found here.

I'm a little behind the curve on this one. For those of you who depend on me for your Second Circuit news, I'm sorry. On May 28, 2004, the Court in United State v. Geibel dismissed 80 counts of insider trading on the basis of venue. The only connection between the trades and New York is that the insider information was misappropriated in New York, which the Court found was insufficient to support venue. A few counts for which some evidence of a New York connection was submitted were upheld. A conspiracy count, which had New York connections was upheld (although the Court narrowed the conspiracy because the tipper had no knowledge of the ultimate tippees and vice versa), and the commercial bribery counts were upheld. The decision can be found here.

An interesting question relating to contingency fee attorneys arose in Universal Acupuncture Pain Services, P.C. v. Quadrino & Schwartz, a case that was decided on June 2, 2004. There, the appellant, a law firm, had agreed to represent the appellees on a contingent fee arrangement. The clients, in the midst of the litigation, fired the law firm. The law firm claimed that it was entitled to be paid on a quantum meruit basis and requested that the Court determine and award attorneys' fees on that basis. The District Court postponed the determination of that issue until the resolution of the case, holding that the fact that the law firm had a contingent fee agreement with the client was still relevant and that, by electing to be paid on a quantum meruit basis, the law firm was only able to recover a fixed fee from its former client's ultimate recovery.

The lawsuit settled without a monetary award to the clients. The magistrate recommended, based on the District Court's ruling, that the law firm should not be paid and did not determine whether the law firm had been discharged for cause. The District Court adopted the magistrate's report, and the law firm appealed.

The Second Circuit, applying New York law, held that unless the law firm was discharged for cause, it was entitled to be paid the reasonable value of its services, even if it had a contingent fee agreement. The Court held, however, that the District Court had not abused its discretion to wait until the end of the litigation to decide the issue of compensation even though it is usual for such a determination to be made immediately after discharge.

The Court did hold that the District Court had abused its discretion by deciding that the law firm was precluded from recovering based on the fact that the clients did not obtain a monetary award. It noted that such a position is inconsistent with the usual practice of determining the amount of fees immediately after discharge. While the Court recognized that such a holding might constain a client's ability to terminate representation, it was bound by New York State precedent, holding that attorneys are entitled to such compensation even where there was a contingent fee agreement. The case was remanded to the District Court for a determination of whether the law firm was discharged for cause, and, if it was not, for a determination of fees based on quantum meruit.

The decision can be found at the Second Circuit website.

Sorry for the gap in posting. I have been away and have not had access to reliable internet service. Not that much seems to have been happening in the Second Circuit over the past week. Oh, yeah, there's D.A.S. Sand & Gravel, inc. v. Chao, in which a mine operated by petitioner was cited by the Department of Labor for multiple regulatory violations under the Federal Mine Safety and Health Amendments Act of 1977. The petitioner claimed that because all of the coal that it mined was provided to in-state endusers, the Act did not apply. Silly petitioner. The Commerce Clause covers virtually everything, and the Court found that it was Congress's intent to invoke its full authority under the Commerce Clause. The decision was issued on May 26, 2004 and can be found here.