Recent Second Circuit Decisions Affecting the EDNY

In the past few weeks the Second Circuit has issued significant decisions arising from appeals from the EDNY.

In the first one, on June 3, 2014, the Second Circuit issued a decision in Heckman v. Town of Hempstead, Docket No. 13-1379-CV, reversing in part a decision by the EDNY and finding that a plaintiff had sufficiently alleged due process violations relating to a town declaring his home unfit for human occupancy.

The Complaint alleged as follows:

[The plaintiff] is a disabled veteran who suffers from post-traumatic stress disorder and obsessive compulsive disorder. He experiences disordered thinking, insomnia, and an inability to concentrate on and complete even basic tasks. He depends on his sister to manage his personal and financial affairs. Moreover, these mental disabilities allegedly contribute to [the plaintiff's] lack of fine motor skills and an aversion to parting with certain objects. . . . In short, he is a hoarder.
On December 20, 2007, [the plaintiff] arrived home to find it being boarded up by officials of the Town of Hempstead . . . and its various public safety agencies (collectively, “Defendants”). Defendants had been called to the residence by police officers who, in the course of investigating a reported shooting in the neighborhood, supposedly smelled gas coming from [the plaintiff's] property. The officials did not permit [the plaintff] to enter his house for any reason: neither to retrieve his money from his home; nor to retrieve his medication from his home; nor to rescue his cat. Apparently fearing arrest if he continued to protest the boarding of his house, [the plaintiff] traveled three hours to the Veteran’s Administration to obtain an emergency supply of his medication, and passed the night in a motel. The next day, [the plaintiff] went to the Town’s Department of Buildings, where . . . the Town’s Supervisor of Inspection services, gave [him] a handwritten list of vague alleged problems to be corrected within the house, and returned [the plaintiff's] house keys. Returning to his house, [the plaintiff] discovered the cat inside; however the gas, heat, electricity and water were not turned back on. To date, the unfit for human occupancy designation has not been lifted.

(Internal quotations and citations omitted).

The complaint asserted that the Town of Hempstead Building Department violated his due process rights by declaring his home “unfit for human occupancy” without notice and anopportunity to be heard in advance. The district court dismissed his complaint, but the Second Circuit reversed in part, holding:

The Fourteenth Amendment prohibits a state from depriving any person of life, liberty, or property, without due process of law. Due process requires that before state actors deprive a person of property, they offer a meaningful opportunity to be heard. In an emergency situation a state may satisfy the requirements of procedural due process merely by making available some meaningful means by which to assess the propriety of the State’s action at some time after the initial taking. Where there is an emergency requiring quick action and where meaningful pre-deprivation process would be impractical, the government is relieved of its usual obligation to provide a hearing, as long as there is an adequate procedure in place to assess the propriety of the deprivation afterwards.

At the pleading stage, then, a plaintiff must provide factual allegations that permit a plausible inference that (1) the relevant official(s) lacked competent evidence to reasonably believe that an emergency existed; or (2) that an officials decision to invoke an emergency procedure was arbitrary or amounted to an abuse of discretion; or (3) that a state’s post deprivation remedies are somehow inadequate. Bound as we are at this stage in the litigation to draw all reasonable inferences in the plaintiff’s favor, we conclude that [the plaintiff] has alleged two plausible grounds on which he might maintain a procedural due process claim going forward.

In another case, on May 20, 2014, the Second Circuit issued a decision in USA v. Medunjanin, No. 12-4724, affirming a decision by the EDNY that a defendant may not prospectively invoke the right to counsel during an interrogation and that the right to counsel, even when invoked, can be waived.

Medunjanin was convicted “of terrorism-related crimes involving a conspiratorial plan, at the behest of al-Qaeda, to carry out coordinated suicide bombings in the New York City subway system.” Both in the EDNY and on appeal, Medunjanin argued that incriminating statements he made during interviews with law enforcement agents should have been suppressed because he was denied counsel. The Second Circuit affirmed the decision of the EDNY admitting Medunjanin’s statements.

One question addressed by the EDNY and the Second Circuit was the effect of a request by Medunjanin’s counsel that he be present during any questioning of Medunjanin. Twice in September 2009, Medunjanin was questioned by FBI and NYPD officers; the second interview took place at the US Attorney’s office in Brooklyn and lasted ten hours. He was not in custody during either interview and did not request counsel. However, soon after his second interview, one of his acquaintances was arrested on terrorism-related charges. Medunjanin then met with counsel and, on September 28, 2009, his counsel notified the FBI agent and AUSA who had questioned Medunjanin that he “was representing Medunjanin and asked that Medunjanin not be interviewed unless he was present.”

Over three months later, on January 7, 2010, the FBI and NYPD executed a search warrant at Medunjanin’s home and questioned him further. Medunjanin called his lawyer, who called the FBI agent to whom he had spoken in September and left a message for the AUSA, asking to speak to him regarding Medunjanin. “In the meantime, Medunjanin remained upset by” the interview and

[b]etween 3:30 and 4:00 p.m., Medunjanin left home and drove from his building onto the Whitestone Expressway, driving at some 90 m.p.h. He wove in and out of traffic, crossing several lanes, planning to cause an explosive collision. In order to make clear that this would not be viewed as an ordinary rush hour accident, Medunjanin called 911, identified himself, and proclaimed “we love death more than you love life” and, as translated from Arabic, “there is no God but Allah and Muhammad is His messenger,” repeating the latter several times. Medunjanin then turned and sped directly into another car.

Medunjanin survived the crash without significant injury and was questioned by the FBI and NYPD. Medunjanin signed Miranda waiver forms and spoke freely with his questioners, making a number of incriminating statements. It was not until the next day that the AUSA spoke to Medunjanin’s lawyer, and then only to say that “Medunjanin would be arraigned that afternoon” and “that Medunjanin no longer wanted” his counsel “to represent him.” The AUSA “refused to disclose Medunjanin’s whereabouts.” It was not until that afternoon, just before he was indicted, that Medunjanin asked to speak to his counsel. The FBI and NYPD stopped questioning him at that point and allowed him to meet with counsel.
On the question of whether the September 28, 2009, January 7, 2010, and January 8, 2010, telephone calls from his counsel constituted an invocation of Medunjanin’s right to counsel, the Second Circuit explained:

We reject Medunjanin’s contention that the requests by [his counsel] that Medunjanin not be questioned without [his counsel being] present, in calls . . . in September 2009, effective invocations of Medunjanin’s right to counsel. That right was personal to Medunjanin. Only he could waive it; only he could properly invoke it. The only prearrest mention of counsel by Medunjanin himself came on January 7, 2010, when the second search warrant was served and Medunjanin asked whether [his counsel] had been notified. That question, if intended as a request to have counsel present, was at best unclear and ambiguous.
Thus, even assuming that Miranda rights may properly be asserted by a suspect prior to his being in custody and prior to his being questioned, there was no clear and unambiguous invocation of the right to counsel by Medunjanin before his arrest. Accordingly, the agents’ initiation of questioning of Medunjanin after his arrest, and after his receipt of Miranda warnings, did not violate Medunjanin’s Fifth Amendment privilege against self-incrimination or his right to counsel in aid of that privilege.

Finally, on May 27, 2014, the Second Circuit issued a decision in United States v. Pelt, No. 13-1972-CV, dismissing an appeal from the EDNY.

In Pelt, the defendant, an attorney appearing pro se, filed a notice of appeal of a “partial judgment in favor of the United States on claims that [she] failed to repay her student loans.” At the same time, the defendant filed her Notice of Appeal, she also moved in the EDNY to vacate the judgment. The EDNY granted her motion in part and entered a new judgment. The defendant did not file another Notice of Appeal. The Second Circuit dismissed the appeal she had filed, holding:

In these circumstances we are obliged to dismiss [the defendant's] appeal for lack of jurisdiction. Insofar as [the defendant] appeals from the partial summary judgment entered on March 22, 2013, that is not, by itself, a final judgment over which we may exercise jurisdiction. The Rules of Civil Procedure permit a district court to enter final judgment as to one or more, but fewer than all, claims only if the court expressly determines that there is no just reason for delay; without such an express determination, any order or other decision, however designated does not end the action and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities. The partial judgment entered on March 22, 2013, does not mention Rule 54(b) or expressly determine that there is no just reason for delay. Accordingly, that partial judgment was never certified for appeal.
We have held that, where an appellant files a notice of appeal before final judgment is entered, that premature notice of appeal may ripen into a valid notice of appeal if a final judgment has been entered by the time the appeal is heard and the appellee suffers no prejudice. But there is no reason to apply that principle here, where [the defendant] filed a timely—not a premature—notice of appeal from a judgment that was then vacated. In such circumstances, she was obliged to file a timely notice of appeal from the final judgment entered on November 20, 2013. In the absence of such a notice, we lack jurisdiction to hear the appeal.

(Internal quotations and citations omitted) (emphasis added).

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