- A Court Officer’s Use of Physical Force to Remove Someone From A Courthouse May Create A Constitutional Seizure Claim
- Discrimination Claim Is Time-Barred
- You’re Stuck Without A Good Excuse
A Court Officer’s Use of Physical Force to Remove Someone From A Courthouse May Create A Constitutional Seizure Claim
In Salmon v. Blesser, the Second Circuit Court of Appeals in reversing a federal District Court concluded that a court officer’s physical ejection of an individual from the courthouse raises the reasonableness requirements of the Fourth Amendment to the United States Constitution.
Amendment IV of the U.S. Constitution provides:
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.
According to the decision, on September 1, 2010, Oliver Salmon accompanied his attorney to the Albany City Court to examine a court file. Because only lawyers were permitted into the clerk’s office where the file was kept, Salmon waited in a public area outside the office while his attorney went inside. As Salmon waited, Court Officer Blesser approached and ordered people
to leave the area. Salmon explained that he was waiting for his attorney and offered to summon counsel to confirm that fact. According to Salmon, Blesser “became enraged … and without warning, grabbed [Salmon] by the collar and violently twisted his arm up behind his back and began shoving [him] toward the door.” When Salmon complained that Blesser was hurting him, Blesser twisted Salmon’s arm further. Blesser then “physically threw [Salmon] out the door and threatened [him] with arrest” if he reentered the building. Salmon asserts that these actions caused him permanent physical injury.
Salmon appealed from the dismissal of his Fourth Amendment claim against Blesser, presenting the Second Circuit with a single question: “Did he allege facts sufficient to plead a plausible ‘seizure’ of his person?”
In concluding that he did, the appellate Court reasoned that “police officers frequently order persons to leave public areas: crime scenes, accident sites, dangerous construction venues, anticipated flood or fire paths, parade routes, areas of public disorder, etc. A person may feel obliged to obey such an order. Indeed, police may take a person by the elbow or employ comparable guiding force short of actual restraint to ensure obedience with a departure order. Our precedent does not view such police conduct, without more, as a seizure under the Fourth Amendment as long as the person is otherwise free to go where he wishes. That is the crux of Sheppard v. Beerman (a prior U.S. Supreme Court decision on the subject), which concluded that a person who is ordered to leave a judge’s chambers and then escorted out of the courthouse has not been seized because the person remains free to go anywhere else that he wishes. Thus, if Blesser had merely ordered or escorted Salmon out of the courthouse, or even if Blesser had barred Salmon’s reentry to the courthouse, the district court could well have relied on Sheppard v. Beerman to conclude that no “seizure” had occurred. Here, however, Blesser’s method for removing Salmon was not simply to order or escort him from the courthouse, or to use guiding force to direct him as needed. It was physically to grab him without encountering reprisal or resistance, and to use painful force to control Salmon’s movements. That distinguishes this case from Sheppard, in which no use of physical force was alleged. Whatever other actions might effect a Fourth Amendment seizure of a person ordered to depart a public area, the intentional use of physical force to restrain the person and control the movements of a compliant person certainly does. Thus, at the point Blesser allegedly used such force, it no longer mattered whether his ultimate purpose was to secure Salmon’s departure from the courthouse or to prevent it. Whether such a detention or seizure is reasonable is of course another question.”
The “reasonableness” of Blesser’s actions was not the subject of the appeal and will await another day. Nonetheless, the Court further stated: “To be clear, we do not here hold that any physical contact will transform an order to depart a public place into a Fourth Amendment seizure. But where such an order is accompanied by the use of sufficient force intentionally to restrain a person and gain control of his movements — as the collar grab and arm twisting allegedly did here — we conclude that a Fourth Amendment seizure is plausibly alleged.”
Accordingly, the Court vacated so much of the federal District Court’s order dismissing Salmon’s Fourth Amendment claim against Blesser for failure to plead the requisite “seizure.
Discrimination Claim Is Time-Barred
Statutes of limitations are laws passed by a legislative body to fix the maximum time after an event when legal proceedings may be commenced. They exist for both civil and criminal causes of action, and begin to run from the date of the injury, or the date it was discovered, or the date on which it should have been discovered with reasonable efforts. When the period of time specified in a statute of limitations passes, a claim can no longer be filed. The period of time varies depending on the jurisdiction and the type of claim.
In Gerardi v. Huntington Union Free School District, the plaintiff, a prospective employee, filed a federal Title VII claim alleging that the School District discriminated against her because of her gender when it failed to hire her for a custodial position.
Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex, and religion. It applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.
Addressing the timeliness of the plaintiff’s claim of discrimination, the Court noted that “Title VII requires a claimant to file a charge of discrimination with the [Equal EmploymentOpportunity Commission] within 180 days of the alleged unlawful employment action or, if the claimant has already filed the charge with a state or local equal employment agency, within 300 days of the alleged discriminatory action. In states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of discrimination with the [Equal Employment Opportunity Commission] is 300 days.”
The Court also noted an exception to the 300 day limitation period raised by the plaintiff. “Under the continuing violation exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.”
Girardi, who previously had a different job with the District, argued that the District’s refusal to hire her was part of an ongoing practice and policy of gender discrimination.
Citing to a recent United States Supreme Court holding, the Court stated that “discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Rather, “each discrete discriminatory act starts a new clock for filing charges alleging that act. These ‘discrete acts’ include acts such as ‘termination, failure to promote, denial of transfer, or refusal to hire are easy to identify.’ Therefore, for these ‘discrete’ acts of discrimination, the continuing violation exception would not be applicable.”
Finding the failure to hire the plaintiff was a separate and discrete act of discrimination, the Court held, “therefore, even assuming it is true, the allegation by the plaintiff that the District’s refusal to hire her for the custodial position was part of an ongoing practice and policy of gender discrimination cannot prolong the 300 day limitation period for that claim.”
You’re Stuck Without A Good Excuse
In Wells Fargo Bank, NA v. Besemer, a mortgagor who defaulted in a foreclosure action was unable to vacate the judgment entered against her because she failed to give a reasonable excuse for not answering the summons and complaint, which the Court also found was properly served upon her.
Wells Fargo Bank commenced a mortgage foreclosure action against Dory Ann Besemer after she stopped making her monthly payments. After Besemer failed to appear or answer the complaint, the Supreme Court entered a judgment of foreclosure and sale upon her default. However, just prior to the judicial sale of the property, she moved to vacate the judgment of foreclosure and sale. Her motion was denied and she appealed.
Under New York’s civil procedural rules, when an “excusable default” is the basis for an application for relief from a judgment, it is well-settled that a defendant must demonstrate
botha reasonable excuse for the default and a meritorious defense. One without the other just doesn’t cut it. In applying this rule, the courts have routinely rejected a wide variety of purportedly “reasonable excuses”; “reasonable” being the operative term here.
The Appellate Court was not convinced by Besemer’s motion either. The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court. Here, the homeowner’s contentions that she had little understanding of the legal process and had no appreciation of the imminent sale do not constitute reasonable excuses for her default in appearing or answering the complaint. Furthermore, the homeowner’s purported reliance upon alleged loan modification negotiations is unsubstantiated and does not constitute a reasonable excuse. Since the homeowner failed to establish a reasonable excuse for her default, it is unnecessary to consider whether she sufficiently demonstrated the existence of a potentially meritorious defense to the action.”
Thus, the judgment was affirmed.