November 12, 2014

New York Law Journal / Written by: Harvey M. Stone, Peter R. Schlam

In the U.S. District Court for the Eastern District of New York, Judge David G. Trager rejected plaintiff's claims against an airline for removing him from a plane after a flight attendant complained about his behavior to the captain. Judge Arthur D. Spatt held that a jury could reasonably find that an off-duty Lynbrook Detective, a defendant in a § 1983 action, was acting 'under color of state law.' And Judge Reena Raggi dismissed claims of racial discrimination in the handling of a disciplinary complaint against a lawyer.

Federal Aviation Act

In Christel v. AMR Corp., 00 CV 6496 (EDNY, Sept. 20, 2002), Judge Trager, granting defendants' motion for summary judgment, held that the decision to remove plaintiff from a commercial flight was not arbitrary and capricious. Thus, under the Federal Aviation Act - which provides that an airline 'may refuse to transport a passenger or property the carrier decides is or might be inimical to safety' (49 USC § 44902) - the airline's action did not give rise to any claim for damages.

The complaint alleged breach of contract and tort claims against American Airlines and other entities based on the forced removal of plaintiff from American Eagle Flight 5149, shortly before take-off from JFK Airport to Reagan National Airport.

During boarding, the sole flight attendant noticed a carry-on bag at the foot of two 'bulkhead' seats, which had to be placed in an overhead bin in order to clear the emergency exit row. The flight was full, and there was no room for the bag in the overhead bin. She looked underneath the nearby seats for suitable storage of the bag and, seeing an empty space underneath the seat in front of plaintiff, asked plaintiff to place the bag there, even though the bag was not his.

After the bag was stowed, the plane began to taxi down the runway for take-off. The attendant noticed that, in plaintiff's row, another passenger had a carry-on bag stowed behind his legs. The attendant took the bag, rearranged the contents of an overhead bin and removed a single nylon backpack to make room for the bag. Plaintiff said the backpack was his.

There were numerous conflicts in each side's version of events. For example, according to defendants, plaintiff became 'somewhat angry' when asked to place the first bag under the seat in front of him. According to plaintiff, he said nothing and complied.

Defendants said that plaintiff grabbed his backpack out of the attendant's hand, then refused to put it under the seat in front of him, though there was enough space to do so. At this point, defendants contended, the attendant perceived that plaintiff was very angry and began to view him as a safety problem. Plaintiff claimed, however, that when the attendant handed him his backpack, he saw there was not enough room to place it next to the other bag in front of him. He therefore told the attendant, 'in a matter-of-fact tone,' that it was unreasonable to ask him to put both bags under that seat and that he would like to put his own backpack there and give the other bag to the attendant. He then placed the other bag in the aisle.

Plaintiff was wearing headphones and listening to music. The attendant asked him to remove the headphones until after take-off. Defendants claimed that he disobeyed those instructions and threw the carry-on into the emergency exit aisle. Plaintiff claimed that the attendant barked out, 'Take those headphones off right now,' and he complied. Thirteen passengers gave plaintiff their names and addresses in case he wanted to complain about the attendant's behavior.

The attendant walked to the back of the aircraft and, on the interphone, told the captain there was a disruptive passenger interfering with her duties to ensure safety. The attendant requested that plaintiff be removed. The captain taxied back to the gate.

Plaintiff declined to leave the plane and was eventually arrested for trespass and disorderly conduct.

As Judge Trager observed, whether an airline has properly exercised its discretion to remove a passenger turns on the facts known to the decision-maker - here, the captain - at the time of the removal. The court was therefore not persuaded by plaintiff's argument that the captain's decision to eject plaintiff was based on false information provided by the attendant. 'A Captain of an aircraft,' Judge Trager stated, 'is entitled without further inquiry to rely upon a flight attendant's representations that a conflict with a passenger might distract the flight attendant from performing his or her safety-related duties.' As the court explained, '[e]ven if the battle of the egos escalated to [the attendant's] making exaggerated or even false representations to the Captain, [the Captain] did not have an obligation to leave the cockpit and investigate the truthfulness of [her] statements.'

Without resolving any factual disputes, Judge Trager suggested that plaintiff would not be barred from bringing a false arrest claim against the flight attendant.

Section 1983

In Davis v. Lynbrook Police Department, 98 CV 0015 (EDNY, Sept. 17, 2002), a § 1983 action, Judge Spatt found unresolved questions of fact as to whether (a) defendant Mr. Curtis, a Lynbrook Detective, had violated plaintiff's constitutional rights and (b) the Lynbrook Police Department (LPD) could be held liable for Mr. Curtis' acts.

After drinking and playing darts from 11 p.m. to 3 a.m., Mr. Curtis, then on partial disability leave from the LPD, got into his car and began following plaintiff Mr. Davis. At traffic lights Mr. Curtis pulled alongside of Mr. Davis and shouted obscenities at him. Mr. Davis drove to his place of employment, Tri-State Newspapers, with Mr. Curtis behind him. When Mr. Davis began walking toward the warehouse where he worked, Mr. Curtis jumped out of his car, drew his gun and forced Mr. Davis to lie face-down on the ground, screaming at him. When other employees came out and told Mr. Curtis that Mr. Davis worked at the warehouse, Mr. Davis stood up. Mr. Curtis demanded identification and then pushed Mr. Davis, who pushed back. Mr. Davis grabbed Mr. Curtis' gun and a chase ensued. When Mr. Davis attempted to strike Mr. Curtis across the back, he hit him instead on the head with the gun, which discharged. The bullet lodged in Mr. Curtis' brain, leaving him unable to speak, unable to see out of one eye and partially paralyzed. Blood tests on Mr. Curtis showed a high alcohol level and marijuana.

Following a jury trial, Mr. Davis was found guilty of attempted murder in the second degree and various other charges. The Second Department affirmed the conviction.

Mr. Curtis' application for accidental disability retirement benefits was denied for lack of proof that his injury was sustained in the course of his duties. By contrast, he was awarded Workers' Compensation payments, because the accident occurred in the course of his employment.

As Judge Spatt held, a jury could conclude under § 1983 that Mr. Curtis was acting under color of state law when he stopped Mr. Davis and showed his badge. In this context, under color of law means 'under pretense of law.' The court must look beyond whether the officer was on or off duty when the incident occurred and consider the 'nature of the officer's conduct and the relationship of the conduct to the officer's official duties.' Slip op. 22. Judge Spatt pointed to Mr. Curtis' pulling alongside Mr. Davis at an intersection, informing him he was a police officer, flashing an apparent badge, following Mr. Davis into the parking lot and showing a badge to Mr. Davis' co-workers. By such conduct Mr. Curtis appeared to be acting in his role as a police officer investigating possible criminal activity. Thus, the court concluded, Mr. Curtis invoked the apparent power of the police department or performed the pretended duty of a police officer, and a rational jury could conclude that Mr. Curtis was acting under color of state law.

Similarly, a jury could conclude that the LPD also violated Mr. Davis' constitutional rights because there was a disputed and genuine issue of material fact as to whether the LPD failed to conduct a meaningful investigation into prior claims regarding Mr. Curtis' conduct. The court pointed to six letters of complaint about Mr. Curtis' behavior, including an incident in which he chased a man in a car to Brooklyn where Mr. Curtis filed charges which he subsequently dropped. Other complaints involved unwarranted and inappropriate traffic stops and allegations of police brutality and false arrest. Noting that the LPD failed to submit any evidence of an investigation or disciplinary action in connection with these claims, Judge Spatt concluded that a jury could find 'an obvious need for more or better supervision to protect against constitutional violations.' Slip op. 31.

The court granted summary judgment to Chief of Police Neve, a defendant in his personal and official capacities, because plaintiff did not produce evidence that Mr. Neve was personally involved in the constitutional violation or was informed and failed to remedy the wrong. Nor did plaintiff provide any evidence that Mr. Neve personally perpetuated a custom or policy of deliberate indifference.

§ 1983: Attorney Discipline

In Brooks v. The New York State Supreme Court, Appellate Division First Department, 02 CV 4183 (EDNY, Aug. 16, 2002), Judge Raggi, sua sponte, dismissed plaintiff's complaint for racial discrimination in connection with his disbarment. The complaint sought compensatory damages and an injunction ordering his reinstatement to the New York bar.

Trevor L. Brooks sued the First Department, its disciplinary committee, the committee's chief counsel, a committee attorney and his own retained counsel for violations of § § 1983 and 1985. He contended that the First Department's decision to pursue disciplinary complaints against him after he requested a two-year leave of absence and/or permission to resign from the practice of law upon his relocation to Jamaica was racially discriminatory.

Judge Raggi dismissed the damages claim against the First Department, its disciplinary committee and counsel for the disciplinary committee under the Eleventh Amendment, which bars suits against the state for alleged deprivations of civil liberties. In addition, as the court noted, a state court and its members have absolute immunity from suits for damages for their judicial acts performed in their judicial capacities, and disciplinary actions are clearly judicial in nature. As the court also found, plaintiff's claim for reinstatement was barred under § 309(c) of the Federal Courts Improvement Act of 1996, which bars injunctive relief in any § 1983 action against a judicial officer for actions taken in the officer's judicial capacity.

Judge Raggi found that plaintiff had failed to state a claim against his former attorney, because a lawyer, particularly a privately retained attorney, is not a state actor 'under color of state law' within the meaning of § 1983.

Finally, Judge Raggi stated that, if the action were not dismissed, the court would have to abstain pursuant to Younger v. Harris from interfering with the pending state judicial proceedings. (Plaintiff had appealed his disbarment to the New York Court of Appeals, which had not yet ruled.)

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.

[This article is reprinted with permission from the November 7, 2002, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]