April 10, 2019

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

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan reports on several significant, representative decisions handed down recently, including a decision holding that  defendant's  rap videos and  lyrics would be admissible in an upcoming trial; another finding no constitutional violation in a public school's banning a student from a show; and a third which questioned two Second Circuit precedents in a §1983  case.

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 Arthur D. Spatt found that defendant's rap videos and lyrics would be admissible in an upcoming trial for drug offenses and use of a firearm in furtherance of those offenses, unless defendant could raise a meritorious objection to any particular pieces of evidence. Judge Spatt also found no constitutional violation in a public school's banning a student from a show for failure to follow school policy during the performance of a satirical skit. And Judge Jack B. Weinstein questioned two Second Circuit precedents in a §1983 case.

Admissibility of Rap Lyrics and Videos in Criminal Trial

In United States v. Carpenter, 18 CR 362 (EDNY, Feb. 25, 2019), Judge Spatt granted the government's in limine motion to admit rap lyrics and videos in a criminal trial, subject to procedures requiring the government to submit its proposed excerpts in advance, to give defendant a chance both to raise objections as to unfair prejudice and to submit limiting instructions.

Defendant Carpenter, an aspiring rap artist, is charged with (1) conspiring to distribute heroin and cocaine base; (2) using a firearm to further sales of these substances; and (3) being a felon in possession of a firearm. In its case-in-chief, the government intends to introduce two of his music videos and song lyrics found on his iPhone. Defendant argues that these items are irrelevant and, in any event, unduly prejudicial.

Judge Spatt had no difficulty finding relevance, given the government's explanations. The videos and lyrics refer to people involved in defendant's offenses; explain his "preferred process for preparing and delivering drugs; show knowledge of the vocabulary and environment of the drug trade; and refer to the minimum quantity of illegal drugs that [defendant] sold to a given customer."

Some videos and lyrics portray defendant brandishing a weapon, and some even describe his reasoning for carrying a weapon in furtherance of drug trafficking. One video, entitled "Might Not Make It Home," shows defendant allegedly brandishing the same .38 caliber revolver recovered at the time of his arrest.

Nor was the probative value of such evidence outweighed by the potential prejudice. There was no excessive risk that the evidence would lure the jury to declare guilt based on proof not bearing directly on the charged offense. Additionally, while the videos and lyrics contain profanity and misogyny, the content is not "more inflammatory'' than the charged crimes. Slip op. 5.

Spatt rejected defendant's argument that using his lyrics to incriminate him would violate his right to free expression. The First Amendment does not prohibit the admission of defendant's words to prove the elements of a crime. Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993). "Artistic work that refers to a specific act or motive that can be tied back to the alleged crime can be highly probative evidence." Defendant may argue at trial "that he took certain creative licenses with his music ..., but this goes to the weight of the evidence, rather than to admissibility." Slip op. 7.

Defendant also objected to the admission of emails and jail calls purportedly demonstrating an attempt to obstruct justice, an offense not charged in the indictment. The government pointed to evidence that defendant instructed his associates to "wipe" his iPhone and delete the "Might Not Make It Home" video.

"This conduct," Spatt noted, "is probative of [defendant's] consciousness of guilt." Slip op. 8-9.

No Constitutional Violation in School Policy Barring Student From Show

In Vetrano v. Miller Place Union Free School District, 16 CV 3329 (EDNY, Feb. 22, 2019), Judge Spatt granted summary judgment to a school district, its superintendent, and a high school assistant principal, dismissing claims brought by a student barred from appearing on the second day of a school-sponsored event after he violated a school policy by departing from the script during the first night's performance.

Defendant school conducted an annual student variety show on consecutive nights. Under school policy, students who performed certain satirical skits submitted proposed scripts for advance approval. Faculty members who were referenced in such skits had a right to veto the reference. Once a script was approved, students were instructed that they were not allowed to depart from it.

The school had recently introduced a policy whereby only one student at a time was permitted to use any given school bathroom. A skit concerning that policy was approved and, in performing it on the show's first night, plaintiff added a line that had not been approved: "Is this why our Superintendent makes so much money, to write bathroom policy?"

The next morning, plaintiff was told that he would not be permitted to participate in the second night of the show because he had violated school policy by departing from the script and by referencing the Superintendent without getting her approval beforehand. Plaintiff appealed to the Superintendent, who upheld the discipline after a brief meeting that same afternoon.

Plaintiff brought suit in State Supreme Court, alleging violations of his constitutional rights to free speech, free association and due process. Defendants removed to federal court and sought summary judgment at the close of discovery.

Plaintiff's due process claim failed because "students have no constitutionally protected interests meriting due process protections" in the right to participate in an extra­curricular activity. Slip op. 10 (collecting cases).

Plaintiff's First Amendment retaliation claim failed under the three-part test of Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011). First, the speech was not protected by the First Amendment because it was performed on school property under the school's oversight and the general public was not invited to speak. Such school-sponsored speech may be censored to advance legitimate pedagogical objectives, such as promoting civility and respect. Slip op. 10-14. Second, the discipline imposed did not amount to "adverse action" within the meaning of the Cox test because it was de minimis and did not contravene any constitutional right. Slip op. 14-15. Third, plaintiff had no evidence of an improper motive, as there was no evidence suggesting he had been disciplined for any reason other than his violation of school policy. Slip op. 15-16.

The free association claim was duplicative of the retaliation claim, and plaintiffs vagueness challenge, raised for the first time in opposition to summary judgment, was both untimely and substantively defective. Requiring plaintiff to follow the "reasonable directions" of teachers was not vague and, in the circumstances, he knew why he was disciplined. Slip op. 16-18.

Second Circuit Precedent

In Thompson v. Clark, 14 CV 7349 (EDNY, March 12, 2019), following a jury verdict in favor of defendant police officers in a §1983 case alleging Fourth Amendment violations arising from a warrantless entry into a home, Judge Weinstein suggested that two Second Circuit rules of law should be changed.

The first related to the burden of proof in a civil case for entry into a home without a warrant. Such entries are illegal unless an exception to the warrant requirement exists. Exigent circumstances are one exception, allowed when law enforcement agents are confronted by an urgent need to render aid or take action. Weinstein questioned the burden of proof in civil cases for exigency. In criminal cases, police officers bear the burden of proving exigent circumstances. In §1983 civil cases, the circuits are split between those placing the burden on the government to prove exigent circumstances (Third, Sixth, Ninth and Tenth Circuits) and those placing the burden on the plaintiff to prove lack of exigent circumstances (Seventh and Eighth Circuits). In Ruggiero v. Krzeminski, 928 F.2d 558, 553 (2d Cir. 1991), the Second Circuit "expressly rejected the argument that once a plaintiff established that the search was not authorized by a warrant, the burden shifted to the defendant to prove that the search was justified by a specific exception." Slip op. 25. However, in certain other civil cases involving warrantless searches, the Second Circuit and district courts in the circuit have adopted the criminal burden of proof, putting it on the government. The inconsistency has created uncertainty.

In Ruggiero, the Second Circuit relied on the definition of presumption in Federal Rule of Evidence 301 for the proposition that the burden of persuasion does not shift to the police. But as Weinstein noted: ''The general rule in civil cases-predicated on sound constitutional policy-should place the burden on police officers to prove, by a preponderance of the evidence, exigent circumstances justifying a warrantless entry. Placing the burden of persuasion on the civilian plaintiff is a repeated injustice that should stop now." Slip op. 36.

The second issue related to the requirement that a plaintiff must prove his state criminal proceeding was terminated in his favor as part of a §1983 malicious prosecution claim. The criminal case against plaintiff was dismissed in the "interest of justice," with no further elaboration by the prosecutor or the judge. There was no mention of the charges being dismissed pursuant to New York Criminal Procedure Law 170.40, which requires the court to state its reasons on the record. The case also was sealed. The state sealing provision applies only to those defendants whose criminal actions were terminated in their favor.

In Weinstein's view, the Second Circuit law should be changed: "Plaintiffs malicious prosecution claim should be treated as if it was on the merits-i.e., the defendant was not guilty . An ambiguous state dismissal should be accepted as being based on non­ guilt, in part because of the assumption of innocence before conviction." Slip op. 36.

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.