November 12, 2014
This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; issues covered include eyewitness identifications, transfer and preliminary injunctions.
In Abdur-Raheem v. Kelly, 96 Civ. 3851 (EDNY, April 28, 2000), Judge Edward R. Korman held that petitioner Jehan Abdur-Raheem's state murder conviction should not be set aside because of inadvertently suggestive eyewitness identifications, where other evidence supports the conclusion that "the eyewitnesses picked out the right man.''
Charles Hill was shot in the head in a Brooklyn bar during the 1976 Superbowl. About three weeks later, the police arrested a suspect and conducted a lineup with three eyewitnesses to Hill's murder. Petitioner Abdur-Raheem, formerly known as John Whitaker, happened to be at the precinct that day for questioning about an unrelated murder and was chosen to fill out the lineup.
Abdur-Raheem was the only person in the lineup wearing a black leather coat. Two of the three eyewitnesses who viewed the lineup identified Abdur-Raheem as the shooter. Both witnesses stated that they recognized the black leather coat he was wearing. Approximately four weeks later, under police questioning, Abdur-Raheem confessed to shooting Charles Hill. After Abdur-Raheem's motions to suppress the confession and the identifications were denied, he was convicted of murder in the second degree, robbery and criminal possession of a weapon. His conviction was subsequently reversed based on the erroneous admission of the confession. The order denying the motion to suppress the eyewitness identifications was affirmed, and Abdur-Raheem was convicted again after a second trial.
In his petition for a writ of habeas corpus, Abdur-Raheem contended that his second conviction must be reversed because it was based on an identification that was unduly suggestive and unreliable and thus violated his Due Process rights under the 14th Amendment. Judge Korman, analyzing Supreme Court precedent, noted that not all suggestive identification procedures raise a constitutional issue. First, the challenged procedure must be "unnecessarily suggestive," (Stovall v. Denno, 388 U.S. 293, 302 (1967)), and even unnecessary suggestiveness does not violate Due Process absent a "very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188 (1972). Thus, there is no Due Process violation if, under the "totality of the circumstances," the identification was reliable, even though the confrontation procedure was suggestive.
The five factors specifically identified by the Supreme Court as being included among those relevant to the admissibility of suggestive identifications are:
the opportunity of the witness to view the criminal at the time of the crime,
the witness' degree of attention,
the accuracy of his prior description of the criminal,
the level of certainty demonstrated at the confrontation, and
the time between the crime and the confrontation. Manson v. Braithwaite, 432 U.S. 98, 114 (1977).
Based on these five factors alone, Judge Korman found that the eyewitness identifications of Abdur-Raheem did not appear solid enough to outweigh the effect of the suggestive identification procedure, given that both witnesses acknowledged that the suggestive coat was a factor in their identifications. Judge Korman noted, however, that the factors set out in Braithwaite do not exhaust the possible ways in which identification evidence may prove to be reliable or unreliable. Based on a thorough and precise analysis of case law in the Second Circuit and elsewhere, Judge Korman arrived at the view that "another critical factor should be taken into account before an otherwise unassailable jury verdict is set aside in a collateral proceeding: the evidence or lack of evidence that the petitioner is guilty of the crime of which he has been convicted." Slip op. 17.
Applying this standard, Judge Korman found that the corroborating evidence against Abdur-Raheem (including his confession, the coat which he apparently wore on the night of the murder and was wearing three weeks later at the time of the lineup, and his propensity for shooting people in the head, as demonstrated by his commission of three other similar murders within a 20-day period) "provides a good reason to find that the eyewitnesses identified the right man." Slip op. 40. Noting that not only the suggestiveness of the confrontation but the confrontation itself resulted from happenstance rather than a deliberate attempt by the police to obtain an identification of the petitioner, Judge Korman found that under the circumstances, "the presence of corroborating evidence should tip the scales in favor of allowing the jury to consider the eyewitness identification." Slip op. 36. The fact that the jury that convicted Abdur-Raheem did not hear all of the corroborating evidence did not affect Judge Korman's conclusion, because the corroboration rule enunciated and applied here is based not on a harmless error analysis, but rather on a review of the trial court's preliminary ruling on the admissibility of evidence.
In American Airlines, Inc. v. Prospect Airport Service, Inc., 98 CV 3062 (EDNY, March 20, 1999), Judge Jack B. Weinstein, faced with a third-party claim against an entity not subject to personal jurisdiction, severed the claim and transferred it to a district where jurisdiction lies.
In the first-party action, Anne Connolly sued American Airlines in New York State Court for injuries she suffered when she fell and broke her hip while walking to catch a connecting flight in Chicago, after a promised wheelchair failed to arrive. The airline removed the matter to federal district court on diversity grounds, and asserted a third-party claim against Prospect Airport Services, which it asserted was responsible for ensuring timely arrival of the wheelchair. Prospect moved to dismiss the third-party claim for want of personal jurisdiction.
Judge Weinstein concluded that personal jurisdiction over Prospect was lacking under the relevant provisions of New York's "long-arm" statute (CPLR 302(a)). Although Mrs. Connolly suffered the consequences of her injury after returning to New York, the injury occurred in Chicago for relevant purposes, defeating long-arm tort jurisdiction. As to long-arm contract jurisdiction, there was no suggestion that Prospect transacted business within New York, and the court rejected American's contention that it contracted to provide services within the state by agreeing to render porter services at O'Hare Airport in Chicago. "While the wheelchair service it provides facilitates the transportation of passengers to New York (and throughout the world)'', the court concluded, "this is not a sufficient nexus to New York, under the circumstances of this case, to establish jurisdiction.''
Relying on Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77, 80 (2nd Cir. 1978), Judge Weinstein noted that, despite the absence of personal jurisdiction over Prospect, the court had authority to transfer the third-party action, separately, to a district where personal jurisdiction against it could properly be asserted. Judge Weinstein therefore severed the third-party action and transferred it to the United States District Court for the District of Illinois, where its resolution was most appropriate under 28 U.S.C. 1404(a).
In Agosta v. United States Postal Service, 00 CV 1124 (EDNY, March 24, 2000), Judge Arthur D. Spatt denied plaintiffs' motion for a preliminary injunction against defendant U.S. Postal Service to prevent it from implementing a plan to consolidate zip codes for the Long Island hamlets of Hauppauge, Ronkonkoma and Central Islip into the zip code for Islandia, N.Y. Judge Spatt adopted the Report and Recommendation of Magistrate Judge E. Thomas Boyle after considering plaintiffs' objections.
The court noted preliminarily that, when seeking an injunction against the government for action taken pursuant to statutory authority, which is presumed to be in the public interest, a plaintiff must demonstrate a likelihood of success on the merits. Such a plaintiff does not have the option of demonstrating, instead, a serious question going to the merits and a balance of hardships tipping toward the movant.
First, Judge Spatt found that plaintiff had not shown irreparable harm. As the court noted, the witness for plaintiff, a real estate sales person, had testified that community identification was significant to purchasers of homes, but could not offer an opinion concerning the impact of a zip code change on housing prices.
Nor did plaintiff show a likelihood of success on the merits. The record revealed that, even though the U.S. Postal Service had no obligation to conduct public hearings on the zip code change, it had considered concerns raised by the affected communities. Moreover, the mail handling needs of U.S. Postal Service outweighed any minor inconveniences to its customers.
Finally, Judge Spatt held that the balance of equities tipped strongly in favor of U.S. Postal Service, because it had undertaken extensive efforts to put the zip code change into effect and plaintiffs had delayed commencing the case for over four months after the announcement of the change.
The Disabilities Act
In United States v. New York State Department of Motor Vehicles, 96 CV 2935 (EDNY, Jan. 12, 2000), Judge Allyne R. Ross granted all defendants' motions for summary judgment in an action brought under the Americans with Disabilities Act (ADA). The decision deals, among other things, with the ADA's definition of "employer."
Theodore Bacalakis began driving a school bus for Amboy Bus Co. in 1986. In 1991 he lost his left leg below the knee in an accident unrelated to his job. In May 1993, when he sought to return to work, the manager at Amboy informed him that he was no longer qualified to drive a school bus in New York under Department of Motor Vehicle (DMV) and State Department of Education (SDE) regulations. The Amboy manager allowed Bacalakis to test-drive a bus and stated that he would rehire him but for the regulations. Bacalakis checked with the DMV, which told him it would make no exception under the regulations. During a meeting with Bacalakis, a representative of defendant Three Village Central School District, called the SDE, which confirmed that Bacalakis was ineligible to drive a school bus and that there could be no exceptions.
Bacalakis filed charges with the EEOC against Amboy, the School District, DMV and SDE. In September 1994 the EEOC issued a reasonable cause determination that all four entities had violated the ADA. In June 1996 the United States sued the School District, DMV and SDE under the ADA to compel the agencies to amend their regulations and seeking damages for Bacalakis. Two months later New York rescinded its regulations, and within a week Amboy reinstated Bacalakis. In November 1996 the EEOC brought suit against Amboy for damages; Amboy then consented to back-pay damages in the amount of $49,000. After the agencies rescinded their regulations, the United States dropped its claim for injunctive relief. The motion for summary judgment before the court involved only the issue of liability, with damages to be determined at a later date.
Judge Ross determined that the School District was an "employer" under the ADA because it had sufficient control over Bacalakis's employment. The School District reviewed all bus driver applications and had the power to withhold approval of prospective drivers. In the court's view, however, the School District had not discriminated against Bacalakis because there was not sufficient evidence of a causal connection between the School District's actions and Amboy's decision not to hire Bacalakis. The court found that Amboy's decision was based on DMV regulations, not on discrimination by the School District.
Judge Ross also granted summary judgment to the DMV and the SDE based on the police power exception, which excludes government agencies from the definition of "employer" under the ADA when they are acting in their regulatory capacities. As the court also noted, when the state is regulating pursuant to its police powers, it is acting as a sovereign, which raises federalism concerns. Judge Ross rejected plaintiff's argument that the police power exception should not apply here because DMV and SDE were actively involved in the hiring decision. The court determined that there was not a sufficient level of interrelationship between the agencies and the School District to support such an argument. Rather, the agencies merely indicated that they intended to stand by their regulations:
To hold the state liable for enforcement of its regulations would vitiate the police power exception. It may be possible that a state agency's involvement in a given case could be so proactive and intense as to exceed enforcement of its regulations, but the state defendants' involvement in bacalakis' case was not. Slip op. 24.
Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.
[Reproduced with permission from New York Law Journal Volume 223, Friday, May 12, 2000. Copyright 2000 ALM Properties, Inc. All rights reserved.]