Constitutional Rights Attorney -- Criminal Harassment

UPDATE:

In May and July 2014, the Court of Appeals issued two pivotal decisions bearing on the First Amendment and public order offenses.  In Golb, the Court found aggravated harassment in the 2nd Degree unconstitutional (based on the same reasoning as described in my post below), and then in Marquan the Court of Appeals commented on the practice of using "no legitimate purpose" to save otherwise unconstitutional statutes.  Read More here.

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Original Post
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The laws criminalizing "offenses to public order," (i.e. the "disturbing the peace" family of crimes such as harassment and loitering), need to be carefully drafted to avoid constitutional issues.  Frequently, the phrase "for no legitimate purpose" is added to these statutes, letting the courts define what constitutes a "legitimate purpose," so that constitutional issues can be avoided. See People v. Shack, 86 N.Y.2d 529 (1995).

Subsection One of New York Penal Law 240.30, defining Aggravated Harassment in the Second Degree, however, has some drafting issues that need to be addressed by the State Legislature.  The law criminalizes any communication where someone "with intent to harass, annoy, threaten or alarm another person... communicates... by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm."  This crime is classified as a Class A Misdemeanor, meaning that it carries a sentence of up to one year in prison and/or up to a $1,000 fine.

Essentially, as phrased, the law criminalizes being intentionally annoying or causing alarm, for any purpose. This could describe any other emergency communication or warning, such as reporting a fire or telling someone they need to go to the hospital right away; it could almost any argument over the telephone; or it could describe someone engaging in parody that is protected by the First Amendment.

The problem with the law's phrasing has been known for decades.  Rather than throwing out the statute, however, the courts would interpret the statute as containing additional elements or limitations, and would evaluate each case to see if the statute was unconstitutional "as applied."  People v. Dupont, 107 A.D.2d 247, 253 (1st Dept. 1985).  People v. Smith, 89 Misc. 2d 789 (App Term. 2d Dept. 1977).

In 2003, the Court of Appeals found this statute unconstitutional. People v. Mangano, 100 N.Y.2d 569, 571 (2003).

By that point, however, the legislature had already amended the statute, and thus Mangano was based on the pre-2001 version and is not necessarily binding on charges brought under the latter version.  Rather than address the Constitutional concerns, however, the 2001 amendments were mostly stylistic.  Whereas the statute previously said "communicates, or causes a communication," now it is divided into two paragraphs, one starting with "communicates," and the other starting with "causes a communication."  

In 2008, the U.S. District Court for the Southern District of New York found the current version of the statute unconstitutional, and found that the City of New York could be civilly liable for enforcing it.  Although the constitutional issue was not appealed, the Second Circuit sent the matter back for further submissions on whether the City had an option to enforce the law, or if it was required by the State.  The matter was settled prior to another written decision being issued. Vives v. City of New York, 524 F.3d 346, 357-358 (2d Cir. 2008).

Following Mangano and Vives, some courts have held that this subdivision one of Penal Law 240.30 is unconstitutional and dismissed charges brought under that section, while others continue to enforce it depending upon how it is being applied. See People v Louis, 2011 Slip Op 21254, 927 N.Y.S.2d 592, 597 (Nassau County Dist. Ct., 2011).

The overbroad wording is a problem that could probably be fixed by simply adding the phrase "with no lawful purpose" to the law, but given the emerging phenomena of cyber-bullying and related issues, the legislature may want to do additional re-writing.  There are other disorderly conduct laws on the books that deal with general "threatening behavior," so it is not as if people are permitted to run amock, but this law, if properly worded, is supposed to deal directly with threatening or harassing phone calls and similar written/electronic communications.

First Amendment Civil Rights

The First Amendment, made applicable to State action through the Fourteenth Amendment, states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Among other things, including protecting public dissemination of information and opinions from unreasonable government interference, "the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006).  "A plaintiff making a First Amendment retaliation claim under § 1983 [the statute permitting a private right of action for constitutional torts] must initially demonstrate by a preponderance of the evidence that: (1) his speech was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and the adverse employment determination against him, so that it can be said that his speech was a motivating factor in the determination. If a plaintiff establishes these three factors, the defendant has the opportunity to show by a preponderance of the evidence that it would have taken the same adverse employment action even in the absence of the protected conduct." Morris v. Lindau, 196 F.3d 102 (2d Cir. 1999).

In a First Amendment Retaliation claim, “the causal connection must be sufficient to support the inference e that the speech played a substantial part in the employer's adverse employment action." Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir.  2000) quoting Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775, 780-81 (2d Cir. 1991).  Such causation may be established through a "showing that the protected activity was closely followed in time by the adverse action." Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996).

The damages that may be awarded in a First Amendment retaliation case include injunctive relief, compensation for economic loss (i.e., lost wages), attorneys fees, and emotional distress.  

Emotional distress awards within the Second Circuit can generally be grouped into three categories of claims: garden-variety, significant and egregious.” Olsen v. County of Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009).  The amount of damages in any particular case is a highly fact-sensitive inquiry, and the amount awarded is subject to judicial review.  See e.g. Thorsen v. County of Nassau, 722 F. Supp. 2d 277, 292 (E.D.N.Y. 2010)(reducing $1.5 Million Award to $500,000 for a ‘serious’ emotional distress claim in the context of retaliation for supporting the losing political camp in an election); Phillips v. Bowen, 278 F.3d 103, 106 (2d Cir. 2002)($400,000 emotional distress award for First Amendment Retaliation based upon supporting an opposing candidate for Sherriff where “defendants' animosity permeated plaintiff's work environment).  See also Long Island Legal News, "Jury Awards 350K in First Amendment Civil Rights Lawsuit.") 

Constitutional Civil Rights Litigation

I find Constitutional cases extremely interesting.  In addition to providing an avenue of redress for people who have had their civil rights violated, these types of cases also deal with larger policy issues.    The Judicial branch is an important component of our system of checks and balances, but it only works by deciding upon the cases and controversies that are presented by litigants.  Thus, this is an area of law where, through litigating over harms that have been caused to specific individuals, the courts define the rights of broad classes within our society.  The same can be said for any type of litigation, but in constitutional litigation the larger issues are more easily apparent.


The main articles of the Constitution deal mostly with the structure and administration of the Federal government as an entity.  The Bill of Rights, however, is directed at the rights of individuals, and sets boundaries against governmental overreaching and intrusion.  Initially, the Bill of Rights was only applicable to the Federal government, not the individual states (and thus not state and local entities, like police departments). The Fourteenth Amendment, however, made these rights applicable to state actors as well.  Additionally, each individual state has its own constitution, which may provide broader protections than the Federal constitution.

THE FIRST AMENDMENT - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

THE SECOND AMENDMENT - A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

THE THIRD AMENDMENT - No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

THE FOURTH AMENDMENT - The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

THE FIFTH AMENDMENT - No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

THE SIXTH AMENDMENT - In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

THE SEVENTH AMENDMENT - In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

THE EIGHTH AMENDMENT  - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

THE NINTH AMENDMENT - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

THE TENTH AMENDMENT - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

THE FOURTEENTH AMENDMENT (SECTION 1) - All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


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Useful Links: 

• National Archives
• Library of Congress
• Wikipedia

To Catch A Predator Catches A Lawsuit

One of my favorite areas of law is Constitutional Rights litigation, and I consider myself lucky to be responsible for a few such cases.

I came across this decision today, Conradt v. NBC Universal , that I thought I would share. Conradt was a retired district attorney in Texas who was caught on NBC's "To Catch A Predator," which is a reality television show that works with law enforcement to catch pedophiles. The show ordinarily has someone pose as a child on the internet, arrange a meeting, and then the pedophile shows up to find the police and an NBC camera crew.

Conradt, however, did not go to the house, and so -- according to the complaint -- NBC arranged with the police for him to be arrestaed by a SWAT team. The complaint alleges that the show purposely made a spectacle out of the arrest, and Contadt committed suicide as a result. Most of the causes of action were dismissed, but the court (the Southern District of New York, Judge Chin) allowed two to proceed against NBC: a cause of action for Intentional Infliction of Emotional Distress, and a cause of action for violating Conradt's civil rights under the 4th and 14th Amendments. One of the more interesting aspects of the decision is that NBC conceded that it was functioning as a state actor, thus allowing the Constitutional claim to go forward.

Family Guy

Family Guy has been sued for an episode where Peter Griffin, one of the main characters, sings "I need a Jew," set to the tune of "When You Wish Upon A Star." 

For anyone who is unfamiliar with the show, Family Guy is comedy cartoon focusing on pop culture satire/parody. In the "infringing song," Peter explains his poor financial skils and decides that he needs to hire a jewish person to manage his money. Here is the complaint, courtesy of the WSJ, (typos and all). Although the lyrics were technically antisemetic, the song was clearly intended in good fun and I doubt anyone, other than someone who finds Family Guy offensive overall, would be in any way consider the parody as a factor in valuing the tune negatively. The show is often politicaly incorrect, but rarely if ever mean spirited. Can a case be made that The Family Guy's parody has decreased the value of "When You Wish Upon A Star"? Come-on! In fact, the parody exposure (like the exposure the plaintiffs attorneys are gaining from this lawsuit) probably has positive marketing value. If anything has hurt the value of the tune, it is the fact that the copyright holder, Bourne Co., is bringing this lawsuit. As sympathetic as I am for plaintiff's lawyers going after deep pockets, that's just not right. Not only am I a Family Guy fan, I am also a fan of the First Amendment.

I hope the Seth Macfarlane does a parody of overzealous copyright infringment and defamation lawsuits next.

Re: Marci Hamilton, "Did the Six Supreme Court Justices Who Chose to Attend the 54th Annual 'Red Mass' Exercise Bad Judgment?"

In her Findlaw Writ column, here, Cardozo Law Professor Marci Hamilton, also a noted law and theology scholar, argues that the Supreme Court Justices who attended this year's "Red Mass" exercised poor judgment in that their attendence offered the appearance of impropreity. I disagree, for the most part.

Prof. Hamilton's view is well thought out, and she is careful to explain that she is not arguing that the Justices should be banned from religious observance, but to the extent she argues that mere attendence gave the appearance of impropriety, I find it doubtful that the Justices' attendence at the mass in any way reflects that the Catholic Church is exercising undue influence over United States law.

What I take from the Justices' attendence is a demonstration of respect for the First Amendment, gratitude towards those people of all religious persuasions who elevate the Law to a stature of something sacred, acknowledgment of the county's sizeable Catholic population, and encouragement of that population to take an active role in the process of Law. I once attended a lecture by Guido Calebrisi where he spoke -- in wholly secular terms -- of "faith and trust in the rule of law," and I believe that the Justices' attendence sends a message to American Catholics that they can have such faith in the American Judiciary.

What is not acceptable, however, is the Catholic Church using this opportunity as a political pulpit for hot button issues. By attending, particularly for those Justices who are not Catholic, let alone not Christian, the Justices offered a showing of respect to the Catholic population of the United States. To the extent the sermon focused on areas of discord rather than offering a unifying and supportive message, this was disrespectful to both the Judiciary and the American Catholic populous.

I was raised in a traditional Catholic household, and still consider myself a Catholic despite the fact that I disagree with the Church's viewpoint on almost every issue of controversy (and many that aren't even that controversial). Catholics should be angry at their church. The Church is of course entitled to its viewpoint on moral issues, but should express that viewpoint in an appropriate manner and forum. If the "church" wants to express its opinion on an issue of constitutional law, request to submit an amicus brief (with sound, rational arguments that comport with American notions of democracy and civil liberty).

In my opinion, silencing personal freedoms is about as un-catholic as an idea can be. Catholic means "universal," afterall. The First Vatican Counsel, I think (or somewhere thereabouts) defined the Church by saying something to the effect of "the Church is the community of believers bound together by the pursuit truth." The Church's persistent attack on personal freedoms runs counter to its central mission of pursuing the truth.

Faith is meant to be uplifting and socially beneficial, and in this context it appears -- although I have not read the actual sermon -- that the sermon was misquided proselytization. So, kudos to the open minded justices; shame on the Church.