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 Sandra Townes granted the government’s motion in a criminal case to empanel an anonymous and partially sequestered jury. Judge Arthur Spatt denied a motion to dismiss §1983 claims of anti-Semitic harassment at a Northport High School. Judge I. Leo Glasser declined, on jurisdictional grounds, to review an administrative denial of plaintiff’s application to adjust his immigration status. And Judge John Gleeson dealt with an array of constitutional claims against federal officials by non-citizen residents detained after the attacks of Sept. 11, 2001.

Anonymous Jury

In United States v. Vernace, 11 CV 05 (S-1) (EDNY, Jan. 11, 2013), Judge Townes granted the government’s application to empanel an anonymous, fully escorted and partially sequestered jury in a criminal case involving alleged racketeering activity.

The indictment charged three defendants—a captain and three associates of the Gambino organized crime family—with engaging in a racketeering conspiracy from January 1978 through January 2011. As part of this conspiracy, Bartolomeo Vernace, the alleged captain, was charged with heroin offenses and murder. The indictment also charged defendants with illegal gambling activity and conspiring to make and collect extortionate extensions of credit.

The government’s motion asked that "the identities of all prospective jurors, including their names, addresses, and places of employment, not be revealed to either the parties or their attorneys" and that "from the time each juror is empaneled until the conclusion of the trial, the jurors be escorted by…the Marshals Service between the courthouse and a central undisclosed location each day and at all times during recesses."

The court highlighted the following factors relevant to jury anonymity:

1. The charges are serious, including crimes of violence. Vernace has had high-ranking roles in the Gambino family, and is charged here with participating in two murders and faces a possible life sentence.

2. The evidence shows that Vernace, in particular, is dangerous. As previously found, he "has at his beck and call dangerous criminals to do his bidding."

3. Based on recantations by fearful witnesses in Vernace’s state trial on murder charges, he has an ability to interfere with the judicial process.

4. He has apparently made actual previous attempts to do so. Courts in the Eastern District, moreover, have taken judicial notice of the Gambino family’s history of obstructing justice. Additionally, given Vernace’s rank of captain, there is a significant concern that others within the organization would intervene on his behalf.

5. Likely widespread media coverage of the trial could expose jurors to "extraordinary pressures," impairing their ability to be fair.

For these reasons, the jury needs protection. Townes found as well that the measures proposed for the prosecution were reasonable under the circumstances. Despite the restrictions on information about juror identity, the court can still engage in "extensive voir dire" regarding such matters as the prospective jurors’ familiarity with the case and defendants; their neighborhoods, employment and families’ employment; their education, affiliations, ethnicity and military service; and "whatever other matters counsel may propose." Slip op. 7-8.

The court will minimize any prejudice by giving the jurors a relatively bland explanation for anonymity and sequestration—for example, a statement that those steps "are not unusual and are taken to ensure their privacy and impartiality in light of the media and public attention the trial is expected to receive." Slip op. 8 (citations omitted).

The same factors warranting anonymity, the court noted, warrant the requested sequestration.

Anti-Semitic Harassment

In G.D.S. v. Northport-East Northport Union Free School District, 12 CV 2191 (EDNY, Dec. 22, 2012), Judge Spatt denied defendants’ motion to dismiss claims of discriminatory harassment under section 1983.

Plaintiff, 16 years old, was a student in the Northport School District from September 2002 to June 2011 and attended Northport High School from September 2010 to June 2011. Beginning in November or December 2010, plaintiff became the target of bullying and harassment by other students due to his Jewish religion. Other students made anti-Semitic comments and jokes, called him "Jew," disparaged Jews and made jokes about the Holocaust. Some students posted anti-Semitic slurs on Facebook.

In January 2011, plaintiff wrote an essay for English class titled "Anti-Semitism" in which he related specific incidents of anti-Semitic harassment. Plaintiff’s teacher, who read and edited this essay, did not contact plaintiff’s parents, and neither the teacher nor the administration took any action.

In May 2011, plaintiff’s parents became aware of the extent of the harassment. They initiated a meeting with the superintendent of the Northport School District, defendant Marylou McDermott, and the principal of the Northport High School, defendant Irene McLaughlin. Plaintiff’s parents asked the school officials to take steps to protect plaintiff and educate the student body about the dangers of harassment.

According to plaintiff, the school district failed to investigate or take any remedial action, though they offered measures to promote religious tolerance. Indeed, two weeks later, when plaintiff met with McLaughlin and a social worker, McLaughlin told him he "should consider what the bullies were going through at home." Slip op. 6 (quoting from the complaint). The harassment continued, witnessed by a teacher, who took no action. Anti-Semitic postings continued on Facebook. Because of the harassment and indifference by school officials, plaintiff did not return to Northport High School.

Plaintiff alleged that defendants violated his rights under the Equal Protection Clause of the 14th Amendment. Spatt rejected defendants’ argument that the "doctrine of primary jurisdiction" barred this claim. The "doctrine of primary jurisdiction" applies when federal courts have original jurisdiction to hear a claim that also falls within the special competence of an administrative body. Defendants argued that the New York State Commissioner of Education should have had the initial opportunity to resolve plaintiff’s Equal Protection claims, because they related to discipline for student harassment and the policies and procedures of the school district.

Review by the courts is proper, however, where the claim is based on a statutory or constitutional provision. Spatt observed: "Here, the resolution of the Plaintiff’s Equal Protection claim will clearly depend on the interpretation of a constitutional provision. Moreover, the Plaintiff’s claim does not involve technical or policy considerations within the Commissioner’s particular field of expertise, but rather is within the conventional wisdom of this Court." Slip op. 11. In addition, the commissioner would not be able to provide proper redress.

Spatt also concluded that plaintiff had adequately pleaded an Equal Protection claim based on deliberate indifference. Plaintiff sufficiently detailed religion-based harassment, which Spatt categorized as "extreme, outrageous and hateful." The complaint also alleged that defendants had actual knowledge of the invidious bullying through plaintiff’s essay, the meeting plaintiff and his parents had with McDermott and McLaughlin, the list of Facebook messages given by plaintiff to McDermott and McLaughlin, and the report by the school’s social worker to McLaughlin. Finally, the complaint alleged facts indicating that defendants’ weak response was unreasonable in light of the harassment.

Spatt dismissed plaintiff’s second cause of action based on the Equal Protection clause of the New York State Constitution, because there is no private right of action under the New York State Constitution where remedies are available under §1983. Slip op. 18. Plaintiff also failed to comply with New York State’s notice-of-claim statute, because he did not present a written verified claim within three months of the claim’s accrual.

Plaintiff did state a claim for discrimination under New York Civil Rights Law. Slip op. 21-22.

Immigration Decision

In Sandhu v. United States, 12 CV 2699 (EDNY, Jan. 8, 2013), Judge Glasser granted the government’s motion to dismiss plaintiff’s action seeking judicial review of the denial by the U.S. Citizenship and Immigration Services (USCIS) of his application to adjust his status. Glasser held that the court lacked subject matter jurisdiction to review plaintiff’s application.

Plaintiff Jaswinder Sandhu came to the United States from India in September 1996 and overstayed his visa. In October 1997, plaintiff married Rowena Jones, a U.S. citizen. The next day, he filed a Form I-485 to adjust his immigration status to lawful permanent resident. In August 2001, Jones obtained a Judgment of Annulment of her marriage in New York Supreme Court because "the consent…to the marriage was obtained by fraud." In April 2002, the Immigration and Naturalization Service denied plaintiff’s Form I-485, after he failed to appear for an interview.

In January 2007, S.J.K. Restaurant Corporation filed a form I-140 Immigration Petition for Alien Work on plaintiff’s behalf. USCIS approved it in June 2007 and, based on the approval, plaintiff filed a second Form I-485 in July 2007. The second Form I-485 would be viable only if the first were viable when filed and his marriage was bona fide. USCIS denied the second Form I-485 on the ground that the documents plaintiff submitted to show a "bona fide" marriage did not outweigh plaintiff’s failure to appear for an interview. USCIS denied plaintiff’s motion for reconsideration. Plaintiff then sought judicial review.

Enacted in 1996, and amended in 2005, the Illegal Immigration Reform and Immigrant Responsibility Act stripped the federal courts of jurisdiction to review USCIS rulings unless they involved constitutional claims or pure questions of law. The court lacks jurisdiction to review factually based decisions and exercises of discretion. The government argued that the action was barred because the immigration adjudicator’s decision was based on a weighing of the facts, whereas plaintiff contended that the decision presented a mixed question of law and fact.

The U.S. Court of Appeals for the Second Circuit has held that the USCIS’s determination that an alien had entered into a marriage for immigration purposes was a factual conclusion. In making its decision here, the USCIS "weighed the totality of the evidence, including plaintiff’s failure to appear for an interview, the authenticity of [a joint lease with Jones], and the credibility of the affiants." Slip op. 7. Because the USCIS’s decision was discretionary, the court lacked subject matter jurisdiction.

Detained Post-9/11

In Turkmen v. Ashcroft, 12 CV 2307 (EDNY, Jan. 16, 2013), Judge Gleeson dismissed claims against certain officials, and allowed claims to proceed against others, relating to the government’s treatment of non-citizen residents detained in the wake of the Sept. 11, 2001, terrorist attacks.

Plaintiffs sued on behalf of a putative class consisting of "male non-citizens who are Arab or Muslim, or were perceived by the defendants to be Arab or Muslim" and were (1) arrested after Sept. 11, 2001, and charged with immigration violations; (2) "treated as ‘of interest’ to the government’s terrorism investigation"; (3) "detained under a blanket ‘hold-until-cleared’ policy"; and (4) confined in the Metropolitan Detention Center (MDC) or Passaic County Jail.

Plaintiffs asserted six Bivens claims (Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)) alleging violations of: (1) the Fifth Amendment’s Due Process clause, through a "harsh confinement" policy implemented after the Sept. 11 attacks; (2) the Fifth Amendment’s Equal Protection clause, through the harsh confinement policy; (3) the First Amendment, through interference with their right to free exercise of religion; (4) the First Amendment, through limitations on detainees’ communications with counsel, family and friends; (5) the Fifth Amendment’s Due Process clause, through limitations on detainees’ communications with counsel, family and friends, and (6) the Fifth Amendment’s Due Process clause, through a program of improper strip searches. Plaintiffs also alleged a seventh claim, under 42 U.S.C. §1985, for conspiracy to engage in the conduct alleged in the first six claims.

Defendants were former U.S. Attorney General John Ashcroft, FBI director Robert Mueller, former Immigration and Naturalization Service Commissioner James Ziglar (DOJ defendants), as well as former MDC wardens Dennis Hasty and Michael Zenk and several former MDC officials below the rank of warden (MDC defendants).

While Ashcroft v. Iqbal, 556 U.S. 662 (2009), "eliminated supervisory liability in Bivens claims" in the absence of personal involvement, Gleeson found that the sort of personal involvement required still "can be shown by nonfeasance as well as misfeasance." Slip Op. 22-23, quoting D’Olimpio v. Crisafi, 718 F.Supp.2d 340, 347 (S.D.N.Y. 2010), quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Post-Iqbal, however, a supervisor must be alleged to have knowledge as to each element of an asserted constitutional violation, including any mens rea requirement, for liability to obtain. Slip Op. 24-25.

Gleeson found that the DOJ defendants’ establishment of a harsh confinement policy to "exert maximum pressure" on detainees, without specifying that the policy should be implemented lawfully, was insufficient to establish liability on the first and sixth claims: "The DOJ defendants were entitled to expect that their subordinates would implement their directions lawfully, and I cannot reasonably infer that the failure to make that expectation explicit suggests punitive intent." Slip Op. 31-32. These claims survived as to the MDC defendants, who were alleged to have "approved and implemented" the harsh confinement policy, including a strip search policy that "mandated searches that were untethered to any legitimate penological purpose" and was "performed in a humiliating manner." Slip. Op. 33, 59.

The second claim, for equal protection violations, also survived as to the MDC defendants only. "Ashcroft’s direction to arrest all male immigration violators between the ages of 18 and 40 from a Middle Eastern country did not, in light of the executive branch’s plenary power over immigration, amount to an equal protection violation," as there "is no ‘equal protection right to be free of selective enforcement of the immigration laws based on national origin, race or religion.’" Slip Op. 37 (internal citation omitted). But plaintiffs did adequately allege that the MDC defendants "effectuated the harsh confinement policy and held the Detainees in restrictive conditions of confinement because of their race, religion, and/or national origin." Slip Op. 40.

The third claim, for interference with religious exercise, failed as to the DOJ defendants because "the Complaint fails to plausibly plead that the DOJ defendants intended to burden the plaintiffs’ free exercise of religion." Slip Op. 56. It, too, survived as to the MDC defendants: "the right of a person detained in an American prison not to be subjected to malicious mistreatment by federal officers that is specifically intended to deprive him of his right to free exercise of his religion was not diminished by the September 11 attacks." Slip Op. 54.

The fourth and fifth claims, for interference with communications, were dismissed as to all defendants under the doctrine of qualified immunity. It was not sufficiently clear, under the extraordinary circumstances presented in late 2001, that the measures employed were constitutionally impermissible. Slip Op. 41-48.

Finally, the seventh claim, alleging a conspiracy to deprive the detainees of their constitutional rights, was dismissed against the DOJ defendants because the claims representing the object of the conspiracy had been dismissed against them. The seventh claim survived the MDC defendants’ invocation of qualified immunity: "federal officials could not reasonably have believed that it was legally permissible for them to conspire with other federal officials to deprive a person of equal protection of the laws." Slip Op. 61 (internal citation omitted).

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.