Following up on Kevin's post yesterday, this is the fourth post summarizing Judge Sotomayor's civil opinions, which continue to seem fairly consistent with the views of Justice Souter. 

New York Civil Liberties Union v. Grandeau, 528 F.3d 122 (2008):  After a mall patron was arrested for refusing to remove his anti-war T-shirt, the New York Civil Liberties Union worked for the placement of a billboard promoting free-speech rights at shopping malls.  At approximately the same time, it communicated with a member of the New York legislature regarding a bill that would guarantee some free-speech rights in malls.  It subsequently submitted to the N.Y. commission responsible for regulation of lobbying a report that included lobbying work related to the bill, but did not address work related to the billboard.  In response, the Commission asked it to report costs associated with the billboard; the NYCLU then filed suit in federal court, alleging that the Commission violated the First Amendment by requiring it to "report as lobbying advocacy that makes no mention of pending legislation nor exhorts any action with regard to pending legislation," and seeking injunctive relief.  The district court granted summary judgment, holding that the case was moot because the Commission had passed a resolution indicating that it would not seek additional information regarding the billboard.  On appeal, the panel "“ in an opinion by Judge Sotomayor "“ reversed the district court's holding that the case was moot, finding a "live controversy between the parties regarding what constitutes reportable activity "in support of a lobbying effort' and how broadly the Commission may interpret that phrase without running afoul of the First Amendment."  It also held, however, that the district court had properly granted summary judgment and dismissed the case on the ground that it was not, as a prudential matter, ripe:  because the Commission's policy was "vague at best," the First Amendment challenge would "benefit from additional factual development," and the NYCLU had not demonstrated any hardship from the withholding of review.

Rolon v. Henneman, 517 F.3d 140 (2d Cir. 2008):  As part of a settlement alleging that the acting police chief (among others) had violated an officer's constitutional due process rights, the parties agreed to submit pending disciplinary charges to arbitration.  Both the acting chief, Henneman, and another officer, Moskowitz, testified at the arbitration hearing.  The arbitrator ruled largely in Rolon's favor, concluding that neither Henneman nor Moscowitz had testified truthfully or credibly.  Rolon then filed suit against the two, claiming that they had caused him anguish, abused their positions, and violated his right to due process.  The district court agreed with Henneman that he was entitled to absolute immunity, and the Second Circuit "“ in an opinion by Judge Sotomayor "“ affirmed.  In the panel's view, the Supreme Court's decision in Briscoe v. LaHue, 460 U.S. 325 (1983), providing absolute immunity to police officers who testify at judicial proceedings, applies equally to an arbitration proceeding such as this one, in which Henneman "performed substantially the same function as witnesses in judicial proceedings with nearly identical procedural safeguards."  Moreover, the panel agreed, Rolon had failed to state a claim against Moscowitz.

Farrell v. Burke, 449 F.3d 470 (2006):  The panel considered a challenge by a parolee, who was convicted of having sex with underage boys, to a special condition of his parole that prohibited him from possessing "pornography."  The parolee was arrested when parole officers found a copy of a book entitled Scum:  True Homosexual Experiences "“ which, according to the court, "contains sexually explicit pictures and lurid descriptions of sex between men and boys" "“ in his apartment.  The panel, in a Sotomayor opinion, began by rejecting Farrell's as-applied challenge to the special condition.  It acknowledged that the term "pornography" was vague, and that delegating the authority to interpret that term to the probation officer "creates "a real danger that the prohibition on pornography may ultimately translate to a prohibition on whatever the officer personally finds titillating."  However, it concluded that it was "difficult to imagine that a person convicted of an offense [such as Farrell's] could purchase a book containing graphic descriptions of sex between men and boys and think that his parole officer would approve."  The panel also rejected Farrell's facial challenge to the special condition; in so doing, however, it emphasized that it could not "ignore the State's failure to provide meaningful notice of the scope of the Special Condition's prohibition or meaningful limits on an enforcing officer's discretion," and it expressed "hope that greater efforts will be made in the future to define adequately the terms of parole conditions dealing with pornographic materials." 

Singh v. City of New York, 524 F.3d 361 (2d Cir. 2008):  At issue was the city's policy of requiring fire alarm inspectors to carry inspection documents home with them during their commutes.  The inspectors filed suit, seeking compensation under the Fair Labor Standards Act for their commutes.  The district court granted summary judgment in favor of the city, and the Second Circuit, in an opinion by Judge Sotomayor, affirmed.  Following the decisions of other circuits, and distinguishing Second Circuit precedent deeming compensable time that employees were required to spend at their outdoor work site during lunch to provide security, the panel acknowledged that "the City is pushing the limits on the burdens it may impose on its employees during a commute before it must pay them for such time," but it concluded that "[c]arrying a briefcase during a commute presents only a minimal burden on the inspectors, permitting them to use their commuting time as they otherwise would have without the briefcase."  In particular, the panel "note[d] the practical consequences of the plaintiffs' challenge" "“ i.e., the possibility that its holding would "suddenly impos[e] upon businesses across the country a liability to compensate employees anytime those employees must commute to work with important documents, tools, or communications devices."  Again citing the practical consequences of a contrary ruling, the panel similarly concluded that any time added to the employees' commutes as a result of carrying the documents was de minimis and thus not compensable.  The panel also rejected a claim by one inspector who alleged that his First Amendment rights were violated when he questioned the policy; the inspector's speech, the panel explained, was "not a matter of concern, relating only to internal employment policies of the City and made only in his capacity as an employee and not a citizen." 

In re NYSE Specialists Securities Litigation, 503 F.3d 89 (2007):  In this case, the Second Circuit considered a lawsuit brought against, inter alia, the New York Stock Exchange, alleging that the NYSE had failed to adequately police the seven firms through which stock trades are funneled.  The district court granted summary judgment in favor of the NYSE, holding "“ as relevant here "“ that the NYSE enjoyed absolute immunity from suit for its regulatory failures and that the lead plaintiffs in the case lacked standing.  The court of appeals, in an opinion by Judge Sotomayor, affirmed the grant of summary judgment with regard to absolute immunity.  It reasoned that NYSE was entitled to absolute immunity in its quasi-governmental role in regulating the stock market, and that the misconduct alleged by the plaintiffs fell squarely within the purview of that role.  In so holding, it rejected the plaintiffs' contention that the NYSE was not immune because its actions were not "consistent with" the regulations and statutes at issue; "[i]ndeed," the panel explained, "if "consistent with' and "capacity' meant that immunity only attaches to those who follow the law, the immunity doctrine would be effectively subverted."  However, the panel reversed the district court's holding on standing, noting that the district court had misconstrued Second Circuit precedent.

Mr. L v. Sloan, 449 F.3d 405 (2006):  This case arises from proceedings regarding the placement of Mr. L's child, who was enrolled in a school with a program for children with emotional disturbances.  When Mr. L sought to have his child attend a regular public school, the local board of education sought a special education due process hearing to resolve the issue.  Before the hearing officer issued a decision, the parties agreed on the child's placement but were not able to agree on language for a stipulation that would resolve the dispute; the hearing examine thus dismissed the case without prejudice.  This case arose when Mr. L sought to recover attorney's fees under the Individuals with Disabilities Education Act (IDEA), arguing that he was a "prevailing party."  The district court granted summary judgment to the board, and the panel "“ in an opinion by Judge Sotomayor "“ affirmed.  It held that this Court's decision in Buckhannon Board & Care Home v. W. Va. Dep't of Health & Human Servs., 532 U.S. 598 (2001), holding that a "prevailing party" for federal fee-shifting purposes is one who has "achieved a judicially sanctioned change in the legal relationship among the parties," applied fully to Mr. L's case even though he was a prevailing defendant, rather than a prevailing plaintiff, and that Mr. L was not a prevailing party because the parties' settlement "was purely private and therefore does not constitute an administratively sanctioned change in the legal relationship of the parties that is judicially enforceable." 

Jaegly v. Couch, 439 F.3d 149 (2006):  In this case, the court considered a false arrest claim brought by a man who was arrested on charges of first-degree criminal contempt and second-degree harassment; the former charge was eventually reduced to second-degree criminal contempt, and both charges were later dismissed on the merits.  Relying on the Supreme Court's decision in Devenpeck v. Alford, 543 U.S. 146 (2004), holding that "the probable cause inquiry is based upon whether the facts known by the arresting officer at the time of the arrest objectively provided probable cause to arrest," the Second Circuit affirmed the district court's grant of summary judgment to the police officer.  Writing for the court, Judge Sotomayor explained that "a claim for false arrest turns only on whether probable cause existed to arrest a defendant," rather than whether the police officer had probable cause for a particular cause.  Thus, although the panel deemed it a "close call" whether the officer had probable cause to arrest the man for first-degree criminal contempt, because "no reasonable juror could conclude that Couch lacked probable cause to arrest . . . for second degree harassment," summary judgment was in any event warranted. 

Campusano v. United States, 442 F.3d 770 (2006):  The court considered whether a defendant who waives his right to appeal in a plea agreement is presumed to receive ineffective assistance when his counsel disregards his request to file an appeal.  The district court answered this question in the negative, holding that the general presumption of ineffective assistance stemming from failure to file an appeal does not apply unless the appeal would have raised one of the grounds available to such defendants.  The Second Circuit, in an opinion by Judge Sotomayor, reversed and remanded.  It held that when an attorney does not file a requested notice of appeal or an Anders brief, a defendant is not required to show on collateral review that the issues that he would have raised on appeal had merit. The panel emphasized that its "precedents take very seriously the need to make sure that defendants are not unfairly deprived of the opportunity to appeal, even after a waiver appears to bar appeal.  And while acknowledging that its rule raised "obvious concern[s]" regarding efficiency, it concluded that a contrary rule would "undermine . . . the principles of the Sixth Amendment by allowing attorneys who believe their clients' appeals to be frivolous simply to ignore the clients' requests to appeal."  Later on, it again recognized that "applying the . . . presumption [of prejudice] to post-waiver situations will bestow on most defendants nothing more than an opportunity to lose," but again emphasized that "we do not cut corners when Sixth Amendment rights are at stake.  A defendant who executes a waiver may sign away the right to appeal, but he or she does not sign away the right to the effective assistance of counsel." 

Twum v. INS, 411 F.3d 54 (2005):  In this case, the Second Circuit reviewed an order by the Board of Immigration Appeals, which in turn affirmed an order of an Immigration Judge denying a motion by Alexander Twum to re-open immigration proceedings that he did not attend and that resulted in an order excluding him from the country.  Twum claimed that he went to the courthouse on the morning of his exclusion hearing, but was not permitted to enter because he did not have a hearing notice and could not contact his attorney, who was inside the courthouse and did have a hearing notice.  The IJ construed Twum's motion to re-open as a claim that he had received ineffective assistance of counsel and denied it, on the ground that he had failed to comply with the procedural requirements for such a motion.  The panel, in a decision by Judge Sotomayor, granted review, vacated the order, and remanded for further consideration.  It rejected the IJ's "conclusion that Twum's claim was "in essence' one of ineffective professional assistance of counsel," emphasizing that his attorney's involvement in Twum's inability to enter the courthouse "does not talismanically convert it into one triggering" the procedural requirements for an ineffective assistance claim.  Moreover, the panel noted, the IJ's treatment of Twum's case could not be reconciled with the INS's treatment of similar cases.  The panel further explained that "[w]hile the Immigration Court can and must expect respondents who are ordered to appear before it to make every responsible effort to comply with the order, it can not expect the impossible" "“ particularly when "the court's own access policy may prevent even the diligent and well-intentioned from gaining entrance."  The panel declined to determine whether Twum had in fact shown reasonable cause for his failure to appear  and remanded the case; in so doing, however, it expressed doubt regarding the IJ's finding that Twum had not adequately explained his failure to file the motion to re-open sooner, and it signaled that the BIA should consider Twum's explanation on remand. 

In re Air Crash Off Long Island, NY on July 17, 1996, 209 F.3d 200 (2000):  As the caption suggests, this case arose from the crash of TWA Flight 800 eight miles south of Long Island.  The victims' family members and estate representatives filed suit against TWA, Boeing, and Hydro-Aire (which made the plane's fuel pumps).  The defendants sought to dismiss claims for non-pecuniary damages, arguing that they were precluded from the Death on the High Seas Act, which provides a right of action for deaths occurring "on the high seas beyond a marine league from the shore of any State."  The panel majority held that although the crash occurred beyond a marine league "“ i.e., approximately three miles "“ from shore, the DOHSA did not apply (and thus the plaintiffs could recover for non-pecuniary damages) because the crash did not occur on the "high seas," which it defined as "international waters beyond both state and federal territorial waters.  Judge Sotomayor dissented from this holding.  In her view, the DOHSA "applies to all deaths occurring "beyond a marine league [three nautical miles] from the shore of any State,' and not only to deaths occurring beyond the U.S. territorial sea."  Judge Sotomayor emphasized that Congress in 1920 had enacted the DOHSA to "preserve state remedies in state waters, and to provide a separate remedy . . . to waters subject only to federal jurisdiction."  She explains that when the DOHSA was enacted, the "high seas" started at the three-mile mark, and that this did not change when President Reagan signed a 1988 Proclamation that extended the U.S. territorial waters to twelve nautical miles.  In conclusion, Sotomayor acknowledged that the majority's holding will create "a more generous remedial scheme" for the victims' families, but she countered that "[t]he appropriate remedial scheme for deaths occurring off the United States coast is clearly a legislative policy choice, which should not be made by the courts." 

N.G. ex rel. S.C. v. Connecticut, 382 F.3d 225 (2004):  Sotomayor dissented in a case with echoes of Safford Unified School District v. Redding, in which the Court recently heard oral argument to consider the lawfulness of a strip search by school officials of a student suspected of possessing a prescription drug.  In N.G., the panel majority upheld the legality of certain strip searches of adolescent girls over a dissent by Sotomayor, who decried the "severely intrusive nature of strip searches . . . [for] emotionally troubled children."  In her view, the searches bore no close relationship to the government's needs, and the intrusive nature of the searches outweighed their usefulness.

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