November 12, 2014

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge John Gleeson denied a motion to dismiss a §1983 action alleging a false arrest. Judge Eric N. Vitaliano held that the court lacked subject matter jurisdiction to compel the granting of an immigrant visa. Judge Vitaliano also dismissed a com-plaint seeking relief from an immigration court's final order of removal. And Judge Arthur D. Spatt denied a defendant's motion to enjoin the issuance of mug shots, 'perp walk' photos and press releases, and to hold a hearing on violation of grand jury secrecy.

§1983--Unlawful Detention

In Vasquez v. Police Officer Angelo Pampena, 08 CV 4184 (EDNY, May 18, 2009), Judge Gleeson, declining to dismiss a §1983 action, held that the brevity of an allegedly improper detention by a policeman as he wrote out a summons did not doom plaintiff's claim as a matter of law.

The complaint alleged the following: Plaintiff, a New York state employee, was walking along Roosevelt Avenue in Jackson Heights when he observed defendant Angelo Pampena and another officer asking pedestrians for identification. Plaintiff politely asked the officers whether something had happened. Officer Pampena told plaintiff that it was none of his business and to go home. Plaintiff left at once.

A moment later Officer Pampena told him to come back, and plaintiff complied. Mr. Pampena ordered plaintiff to show identification and remove his coat. Plaintiff did so. Mr. Pampena then ordered plaintiff to stay put while he issued a summons. As Mr. Pampena wrote the summons, he held onto and read plaintiff's identification card. During this process, a second officer stayed close to plaintiff, who knew he could not leave until Mr. Pampena issued the summons and released him. Mr. Pampena issued plaintiff a summons falsely charging 'disorderly conduct/refusal to leave.' The summons instructed plaintiff to appear in criminal court at a given time. After Mr. Pampena handed the summons and identification card to plaintiff, he told plaintiff that he could leave. Plaintiff later appeared in court to answer the summons and was told by a court clerk that a judge had dismissed the summons as legally insufficient.

Represented by Corporation Counsel, defendant argued that the false arrest claim, premised solely on the issuance of a summons, was deficient because there was no 'seizure' under the Fourth Amendment. 'This argument,' Judge Gleeson noted, 'misconstrues [plaintiff's] false arrest claim, which actually suggests two distinct deprivations of liberty: one that took place when Mr. Pampena ordered [plaintiff] to stand by while he wrote the summons and another caused by the issuance of a summons ordering [plaintiff] to appear in court. . .'

As to the detention while Mr. Pampena wrote the summons, the court had 'little difficulty concluding that, under the circumstances alleged,' Mr. Pampena 'seized' plaintiff.

Judge Gleeson rejected the contention that confinement less intrusive than a formal 'arrest' cannot give rise to a §1983 action. The Fourth Amendment 'bars unreasonable seizures, not merely unreasonable arrests.' Slip op. 4.

The court was also unpersuaded by defendant's argument that suits alleging 'de minimis seizures' should be dismissed on 'policy grounds': 'There is no authority for such policy-making, and in any event I do not regard it as an attractive policy.' (Slip op. 8.)

Judge Gleeson then turned to defendant's contention that the issuance of an appearance ticket cannot form the basis of a §1983 claim. Though this argument touches on 'provocative' questions, there was no reason to resolve them here. Plaintiff successfully alleged that the 'circumstances surrounding the issuance of the summons' violated the Fourth Amendment. 'I need not address,' the court stated, 'whether the summons itself constituted a seizure, and I also need not address the issue of qualified immunity because that defense has not been raised.' (Slip op. 10).

Habeas Corpus — Visa Denial

In Aquino v. Immigration and Customs Enforcement, 09 CV 0912 (EDNY, May 15, 2009), Judge Vitaliano dismissed a habeas petition by a U.S. citizen seeking to compel Immigration and Customs Enforcement and the Attorney General to issue an immigrant visa on behalf of her husband Rosario, a citizen of the Dominican Republic.

In 2007 petitioner married Rosario in the Dominican Republic and later applied for an immigration visa for him. At their interview by a consular officer at the U.S. Embassy in Santo Domingo, Rosario conceded that in 1999, when he was married to another woman, Embassy officials had turned down a visa application for him after determining that his prior marriage had been entered into for the sole purpose of securing an immigrant visa for his entry into the United States.

Given this prior episode, the consular officer told petitioner and Rosario that they had to complete a waiver application. They submitted the application, but on Jan. 3, 2009, the visa request was denied based on the fraudulent earlier marriage and the failure to show 'extreme hardship' under the regulations.

A notice of decision sent by the U.S. Citizenship and Immigration Services (USCIS) informed Rosario that he had 30 days from the notice date to file an appeal with the Administrative Appeals Unit. On Jan. 16, 2009, Rosario received a letter from the Embassy stating that the appeal should be submitted at window 26 or 27 at the Embassy. On Feb. 3, 2007, the appeal was submitted. After reviewing the file, an Embassy clerk refused to take the appeal, saying the case had been closed. Petitioner then showed the clerk the January letter and notice of decision. Six hours later a consular officer told the couple that the application had been denied.

Petitioner argued here that, in denying the waiver application, USCIS did not consider evidence offered by the couple. But, as Judge Vitaliano noted, waivers of this kind are explicitly reserved to the Attorney General's discretion, and Congress has expressly insulated the Attorney General's decision from judicial review.

The court also rejected petitioner's argument that, contrary to its own regulations, USCIS erred by not accepting the appeal. Under the doctrine of consular non-reviewability, courts do not have jurisdiction to review a consular official's decision even if it is erroneous, arbitrary or contrary to agency regulations. As Judge Vitaliano observed, '[i]t would certainly be troubling if applicants for visas at the Embassy in the Dominican Republic are being denied appellate rights granted by regulation.' This may be a ground for diplomatic complaint, but the courts have no jurisdiction to grant the requested relief. Slip op. 4-5.

Final Orders of Removal

In Scott v. Napolitano, 08 CV 2338 (EDNY May 26, 2009), Judge Vitaliano dismissed plaintiff's complaint seeking injunctive, mandamus and declaratory relief from a final order of removal entered by an immigration court.

In April 2001, after being convicted of various crimes, plaintiff was deported to Jamaica pursuant to a 1996 order. Plaintiff reentered the United States later in 2001, and was charged with illegal entry in March 2002. Following a somewhat circuitous trip through the courts, an immigration judge issued a final order of removal on Aug. 24, 2005, which plaintiff did not appeal. He did seek to challenge the order in four separate actions: (1) a petition for review filed with the U.S. Court of Appeals for the Second Circuit, which was dismissed on the ground that he had failed to exhaust his administrative remedies; (2) a habeas petition filed in the Southern District of New York, which was dismissed because plaintiff had failed to comply with a scheduling order; (3) a motion filed in the immigration court seeking to reopen the 2005 order, which was denied; and (4) the current Eastern District action.

Plaintiff claimed that the 2005 final order of removal was issued without jurisdiction and is invalid as a matter of law. As Judge Vitaliano noted, however, §1252(a)(5) of the REAL ID Act of 2005 (RIDA) 'mandates that judicial review of all administratively final orders of removal take place exclusively in the courts of appeals,' regardless of how the alien's claim for relief is styled. Slip op. 6.

Judge Vitaliano also concluded that plaintiff had failed to comply with RIDA's express exhaustion requirement because he never appealed the 2005 final order of removal to the Board of Immigration Appeals. For this additional reason, the court lacked subject matter jurisdiction.

Pretrial Publicity

In United States v. Corbin, 09 MJ 0444 (EDNY, June 1, 2009), Judge Arthur D. Spatt denied defendant's motion to enjoin news organizations and the government from issuing press releases, mug shots or 'perp walk' photos or other images of defendant in handcuffs; enjoin the government from conducting 'perp walks' in general and issuing other information about defendants; and hold an immediate hearing to determine whether the government lawyers had violated New York Rules of Professional Conduct and grand jury secrecy restrictions under Rule 6 of the Federal Rules of Criminal Procedure.

Defendant has served as a Nassau Country legislator since 1995. In May 2009, he was charged in a federal criminal complaint with failing to report as income 82 checks in the amount of $226,000 from a New York real estate developer deposited into bank accounts in his name. He was also charged with lying to federal agents during an initial interview. Defendant sought to preclude media outlets, including Newsday and News 12, from publishing photographs of his arrest and transport in handcuffs and to prohibit the government from staging 'perp walks' of criminal defendants.

In deciding whether to grant a motion to enjoin publication of information about a criminal defendant, the court must balance the defendant's right to trial by an impartial jury with the right to a free press. Applying the factors set forth in Nebraska Press v. Stuart, 427 U.S. 539 (1976), Judge Spatt found: (1) defendant was a local public official and newsworthy subject; (2) Newsday and News 12 covered Nassau County and the surrounding areas, including defendant's district; and (3) media reports would be seen by potential members of the jury pool. On the other hand, the Eastern District of New York contained over seven million people; the publicity was restricted to Nassau County media sources; and trial and jury selection were at least six months away.

Judge Spatt concluded that 'defendant has failed to establish that the publicity in this case would pose any difficulty in impaneling an impartial jury of twelve persons and alternates in this expansive, densely populated district.' Slip op. 9. Judge Spatt also pointed to the protections that the court could apply to impanel a fair and impartial jury, including the use of screening questionnaires, thorough voir dire, and additional peremptory challenges for defendant. Thus, a prior restraint of publication of photos showing defendant in handcuffs was unnecessary to safeguard his right to a fair trial.

Next, Judge Spatt addressed defendant's motion for an order permanently enjoining the government from conducting 'perp walks' in any case. Because defendant's arrest had already occurred and was unlikely to be repeated, there was no reasonable expectation that defendant would be subjected to another 'perp walk.' The issue was therefore moot in this case.

Judge Spatt noted the distinction between restraints on the press and restraints placed on parties to a proceeding. However, in this case there were no allegations that any grand jury secrecy had been violated that would merit a hearing to determine whether Criminal Rule 6 had been violated. The court declined to determine whether the government had violated the disciplinary rules by issuing a press release:

the defendant has not shown that the press release has so permeated the public as to have hindered the ability of the Court, probably some six months or more from now, to impanel a fair and impartial jury in this case, especially in light of the size of the jury pool in this huge district and the searching and mitigating tools available to ensure a fair and impartial jury. Accordingly, even if the Court has the authority to rule on potential violations of the ethical rules outside of the context of disciplinary proceedings, it denies the petitioner's request for an 'immediate hearing' on this subject. Slip op. 21.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the June, 2009, issue of the New York Law Journal. Copyright © 2009 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]