New York’s 2nd Circuit Court of Appeals Cites Syracuse Law Review Article

–by Adam Kuhn

Citation: Jessica Dye, GM Not Protected From Ignition Switch Claims, Reuters (July 13, 2016, 10:31 PM), http://www.reuters.com/article/us-gm-ruling-idUSKCN0ZT1RR; In re Motors Liquidation Co., 829 F.3d 135 (2d Cir. 2016); A. Joseph Warburton, Understanding the Bankruptcies of Chrysler and General Motors: A Primer, 60 Syracuse L. Rev. 531 (2010).

The U.S. Second Circuit Court of Appeals is allowing plaintiffs to sue General Motors for an ignition-switch defect. In its decision, the Second Circuit cited a 2010 Syracuse Law Review article by Syracuse University College of Law Professor A. Joseph Warburton.

Warburton’s article, Understanding the Bankruptcies of Chrysler and General Motors: A Primer, discussed how the bankruptcies of Chrysler and General Motors could impact future bankruptcies.

“The reorganizations of Chrysler and General Motors in 2009 were complicated bankruptcies,” Warburton said.  “Although they attracted much attention, the bankruptcies were not well understood.”

Professor Warburton

The Law Review was also cited last year by the New York Court of Appeals.

U.S. Supreme Court Vacates Transgender Rights Case

–by Joseph Railey

Citations: Gloucester Cty. Sch. Bd. v. G.G., 2017 WL 855755 (U.S. 2017); Chevron USA v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Auer v. Robbins, 519 U.S. 452 (1997); G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016); U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter on Transgender Students (May 13, 2016), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf; Gavin Grimm, Gavin Grimm: The Fight for Transgender Rights is Bigger than Me, N.Y. Times (March 7, 2017), https://www.nytimes.com/2017/03/07/opinion/gavin-grimm-the-fight-for-transgender-rights-is-bigger-than-me.html?_r=0.

 

Abstract: A transgender male in Virginia sued his high school for denying him access to the facilities that correspond to his gender identity. The Fourth Circuit ruled that the transgender student should be granted access to the men’s restroom. On March 6, 2017, the U.S. Supreme Court vacated and remanded the case.

***

On March 6, 2017, the Supreme Court vacated and remanded Gloucester County School Board. v. G.G. to the Fourth Circuit. Gloucester County deals with the rights of transgender students in public schools to use the restroom facilities that correspond to their gender identity.

In May 2016, The Departments of Education and Justice issued a joint memorandum to all public schools. That memo directed schools to treat a student’s gender identity (the way the student sees and identifies him or herself) as the student’s sex for Title IX purpose. Thus, under the guidance, a school must allow a transgender male to use a men’s restroom and a transgender female to use a women’s restroom.

Based on this guidance, Gavin Grimm, a transgender male high school student in Gloucester County, Virginia who was born female but identifies as male, was allowed to use the men’s restroom in his high school. Subsequently, a number of parents in the community successfully petitioned the school board to require Grimm to use unisex bathrooms. Grimm sued his school alleging that the school board’s decision violated both Title IX and his constitutional right to equal protection. The District Court dismissed Grimm’s complaint.

On appeal, the Fourth Circuit reversed the District Court and vacated the denial of a preliminary injunction (to allow Grimm access to the men’s restroom while the suit proceeded). In reaching this conclusion, the Fourth Circuit relied on: (1) a jointly issued May 2016 Department of Education and Department of Justice memo; (2) U.S. Supreme Court precedent in Chevron U.S.A. v. Natural Resources Defense Council, Inc. and Auer v. Robbins; and (3) the ambiguity in Title IX as to the meaning of “sex.”

The 2016 memo unequivocally stated that for purposes of Title IX a student’s gender identity was treated as their sex. The court felt this interpretation was reasonable, and determined that deference should be given to the memo in deciding the case. Based on that deference, the court held that it was impermissible to deny Grimm access to the men’s restroom because of his status as a transgender male.

The court also determined that Chevron and Auer controlled. Chevron provides that courts should defer to administrative agencies such as the Department of Justice and Department of Education. “Auer requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.”

As the memo provided an interpretation from an agency tasked with enforcing an ambiguous Title IX statute, the Court held that because Grimm identified as a male, he had a right to use the men’s restroom.

In October 2016, the U.S. Supreme Court granted certiorari in Grimm’s case and scheduled it for arguments at the end of March 2017. Upon taking office, President Trump, U.S. Attorney General Jeff Sessions, and U.S. Secretary of Education Betsy DeVos issued a guidance document that rescinded the 2016 memo on transgender students. The Court then rescinded certiorari stating, “[t]he judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.”  As such, the case has now been sent back to the Fourth Circuit for further action.

U.S. Supreme Court Limits Police Officer Liability

–by Kim Newton

Sources: White v. Pauly, 137 S. Ct. 548 (2017); U.S. Const. amend. IV

Abstract: On January 9, 2017 the Supreme Court unanimously held that an officer’s failure to shout a warning before firing a gunshot in an ongoing confrontation does not constitute a violation of the Fourth Amendment right to be free from the excessive use of force.

***

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”

–U.S. Const. Amend. IV

Facts and Procedural History

On a rainy evening near Santa Fe, New Mexico, two women observed a reckless, swerving vehicle driven by Daniel Pauly and called 911. Officers Truesdale and Mariscal responded to the incident first and determined there was insufficient probable cause to arrest Daniel, who had already left the scene. Therefore, the two officers proceeded to the address registered to the license plate, belonging to Daniel and Samuel Pauly. They hoped to “(1) get his [Daniel’s] side of the story, (2) make sure nothing else happened, and (3) find out if he was intoxicated.”

When police arrived, they saw people moving inside the house and found Daniel Pauly’s matching truck parked outside. The brothers heard the officers outside and yelled, “Who are you?” and “What do you want?” The officers responded, “Hey, (expletive), we got you surrounded. Come out or we’re coming in,” followed by “open the door, State Police, open the door.” The Pauly brothers claimed the police never identified themselves and the brothers armed themselves with a handgun and a shotgun.

During the verbal confrontation, Officer White arrived at the scene. He began walking toward the front door when he heard one brother yell, “we have guns.” Officer White then drew his gun and took cover behind a stone wall nearby. Shortly after, Samuel opened the front window and pointed his gun in Officer White’s direction. After Officer Mariscal missed a shot, Officer White shot and killed Samuel.

Samuel Pauly’s estate and the surviving Daniel Pauly sued the officers, arguing the fatal shot violated the Fourth Amendment right to be free from excessive use of force. The officers argued they were entitled to qualified immunity because a reasonable person would have known there was no constitutional violation.

The District Court denied the officers’ motion for summary judgment, and the U.S. Court of Appeals for the Tenth Circuit affirmed, reasoning that reasonable officers should have known that their conduct would cause the Pauly brothers to defend their home in a manner that could result in the use of deadly force. Furthermore, Officer White arrived to the scene later and only heard “we have guns.” Therefore, the court reasoned that the fatal shot was unreasonable because any reasonable officer would have known a warning was required.

Supreme Court Decision

The Supreme Court vacated the judgment and remanded for further proceedings, holding

“[f]or purposes of qualified immunity, clearly established law should not be defined at a high level of generality. As explained decades ago, the clearly established law must be particularized to the facts of the case. Otherwise, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”

The Court reasoned that an officer who arrives late to an ongoing police action could reasonably assume that the proper procedures, such as officer identifications and warnings, had already been followed. For Officer White, the Fourth Amendment did not require him to second-guess the earlier steps of his colleagues. Therefore, there was no violation.

Justice Ginsburg’s Concurrence

Justice Ginsburg wrote a separate concurrence to highlight remaining questions of fact. Namely, whether Officers Truesdale and Mariscal “adequately identified themselves” as police officers; when Officer White arrived at the scene; what he may have witnessed; and whether he had adequate time to identify himself and order Samuel Pauly to drop his weapon before the fatal shot. She cautioned that a different outcome might be required based on evidence suggesting that Officer White was on the scene during the first threats to invade the home.

A Potential Solution to a “Claw-ful” Problem: A Bill to Prohibit Declawing

–by Grace Hwang

Citations:

Joel Rose, A Declaw Law? Veterinarians Divided Over N.J. Cat Claw Bill, NPR (Feb. 16, 2017, 4:31 PM), http://www.npr.org/2017/02/16/515036397/a-declaw-law-veterinarians-divided-over-n-j-cat-claw-bill.

To declaw cats or not? New Jersey could be first with ban, Fox News (Feb. 9, 2017), http://www.foxnews.com/politics/2017/02/09/to-declaw-cats-or-not-new-jersey-could-be-first-with-ban.html.

Susan K. Livio, Paws off N.J. cat claws: Assembly panel approves declaw ban, NJ.com (Nov. 15, 2016, 7:10 AM), http://www.nj.com/politics/index.ssf/2016/11/paws_off_cats_claws_assembly_panel_approves_declaw.html.

 

Abstract:

New Jersey lawmakers are considering a bill that would make it a crime to declaw cats. If passed, New Jersey will be the first state to implement such a ban.

***

The “Cat Claw Bill” (Bill No. 3899) is sponsored by Assemblyman Troy Singleton (D-Burlington). The bill prohibits veterinarians from performing onychectomy (declawing) or flexor tendonectomy (preventing a cat from flexing or extending its claws) on cats or other animals unless the procedure is medically necessary.

Assemblyman Singleton argues, “Declawing is a barbaric practice that more often than not is done for the sake of convenience rather than necessity.” But not everyone agrees that such practices are harmful to cats in the long run.

Assemblyman Parker Space (R-Sussex) voted against the bill based on his own experiences with his family cat. He commented that his cat inflicted $600 worth of damage to his home. For him, “it was either getting declawed or going back to the shelter,” where it would likely be euthanized.

Veterinarians are also sharply divided on the issue. Gordon Stull, a veterinarian for over 40 years, explained that he felt uncomfortable performing declawing procedures because “[i]t just seemed like this is not a procedure I should be doing. Because it’s not helping the animal. It’s a convenient surgery for the client. And it’s a mutilation.”

But other veterinarian’s disagree. Jose Pla, a veterinarian at several animal hospitals in northern New Jersey, says “I think that it is a surgery that has its place to help certain cats be able to enjoy a loving relationship with their owners.” He agrees that the surgery is an amputation but because of modern technology, the cats are able to recover quickly without much pain.  Others warn that more cats may be abandoned and then euthanized as a result of the ban.

So is declawing really worth banning?

Declawing involves either an onychectomy or a flexor tendonectomy. “An onychectomy involves amputating the last bone of each toe. A flexor tendonectomy involves severing the tendon that controls the claw in each toe, so that the cat keeps its claws but cannot flex or extend them.” In addition to banning these practices, anyone in violation would be guilty of a disorderly persons offense that can mean a fine up to $1,000, a term of imprisonment of up to six months, or both. Those in violation may also be subject to a civil penalty of an amount between $500 and $2,000.

Despite the immediate benefits this may have on cats, the American Veterinary Medical Association, an association that represents more than 89,000 veterinarians, does not support this bill. They do not agree that onychectomies are barbaric. Although it is done in most cases where it is not medically necessary and has medical complications that go along with it, the association believes that it is still a viable option when other attempts to modify behavior have failed. Although the association discourages declawing, they do not believe that lawmakers should tell doctors what to do.

Included in the debate are avid cat lovers and owners. Laura Goode, a volunteer at Only Hope Cat Rescue who has cared for countless numbers of cats explains that cats who are declawed often exhibit aggressive behavior and have difficulty using the litter box.

The bill presents risks on both sides of the debate. Passing the bill would roll back on the autonomy given to veterinarians and pet owners. It would also risk more cats being relinquished because of inconvenience and property damage. But not passing this bill may mean the continual amputation of cats for the sake of human convenience.

Although this measure was cleared by the state assembly, it will still have to “claw” its way through the state senate before it lands on the Governor’s desk.