Publications

November 13, 2014

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 Jack Weinstein dismissed a father's §1983 claims relating to the conduct of the New York City Administration for Children's Services. Judge Frederic Block rejected the government's defense of sovereign immunity where plaintiff claimed false arrest/false imprisonment in connection with his detention by immigration officials following dismissal of criminal charges. Judge Nicholas Garaufis found respondents in contempt for not complying with subpoenas for documents in connection with a foreign divorce proceeding. And Judge Dora Irizarry, with rather pointed criticism of the government, suppressed electronic evidence seized pursuant to warrants.

Father's §1983 Claims

In Graham v. City of New York, 11 CV 5747 (EDNY, June 14, 2012), Weinstein dismissed a father's §1983 and related claims against various New York City defendants and their retained psychologist. Though the city's Administration for Children's Services (ACS) took years to investigate charges of parental neglect by plaintiff and separated and estranged the son from the father, and though the charges were dismissed, Weinstein could impose no remedy but only express regret for the city's "sloth." Slip op. 3.

Plaintiff's son, JGR, was born in 1998. Plaintiff did not live with the child or the child's mother, was married to another woman, saw the child frequently and paid child support.

In March 2006 ACS opened an investigation of JGR's mother, prompted by one of her paramours, for alleged child abuse. Defendant Janet Caesar, an ACS caseworker, interviewed the child several times. On the first two occasions, JGR denied any abuse. Plaintiff complained to ACS about the abuse and the city's failure to investigate properly, and his wife sent a letter to Mayor Michael Bloomberg criticizing ACS.

In May, at a third interview, JGR claimed, for the first time, that his mother had abused him. ACS then removed JGR from his mother's custody.

A few days later Caesar again interviewed the child, who recanted and said his father had instructed him to lie.

Following a hearing on May 11, a Family Court judge issued a temporary order of protection prohibiting plaintiff from having contact with his son, and ordered ACS to assess the propriety of filing a new proceeding against plaintiff. On May 12, JGR was returned to his mother's custody.

In 2007 the ACS investigation of the mother was still ongoing. The city defendants retained psychologist Eileen Treacy to conduct an evaluation. She concluded that plaintiff had coached his son to claim his mother had abused him. Plaintiff contends here that this evaluation was grossly and patently negligent, and unsupported by any evidence of impairment to JGR.

In March 2007 the Family Court again forbade contact between the father and son.

In April the city defendants filed a neglect petition against plaintiff based on the alleged coaching, and another petition asserting emotional neglect by plaintiff as well as sexual abuse and neglect by the mother. In mid-April 2007 defendants withdrew the sexual abuse charges against the mother and agreed to an eventual dismissal of the other charges against her.

After the April 2007 petitions were filed against plaintiff, the Family Court issued a series of orders prohibiting plaintiff from contact with his son. In October plaintiff was allowed to visit JGR under supervision. In a June 2009 order the Family Court noted that these visits adversely affected JGR's mental health. It was not until April 2010 that plaintiff was permitted unimpeded contact with his son. Consequently, what had been a loving relationship, according to plaintiff, was seriously disrupted. Slip op. 10.

In August the neglect petition against plaintiff was finally dismissed, with prejudice.

The plaintiff's complaint denies the allegations of coaching, emphasizing JGR's contradictions, the absence of corroboration, and flaws in Treacy's evaluation. Plaintiff also asserts that the city defendants filed the petition against him to exact retribution for his and his wife's criticisms of them and to cover up their own procedural lapses, such as the failure to obtain a proper and timely evaluation of JGR.

After finding that the Rooker-Feldman doctrine does not deprive the court of subject matter jurisdiction (slip op. 12-14), Weinstein turned to the §1983 claims against the City of New York, Caesar and Treacy.

The Family Court proceedings did not violate plaintiff's right to procedural due process. Slip op. 15-17.

Nor, despite the slow pace of justice, could plaintiff show a violation of substantive due process. For purposes of the motion to dismiss, the court accepted as true (despite the lack of proof) plaintiff's claim that the city defendants filed the petition to retaliate against him. As Judge Weinstein found:

• Even if the investigation were seriously flawed, the complaint itself establishes that the city had a "reasonable basis" to request an order of protection. The alleged coaching could amount to abuse or neglect. The Family Court ordered an investigation into this. The caseworker, whose views are entitled to deference, reasonably credited JGR's recantation, providing an adequate basis for the city to request restrictions on plaintiff's access to his son. Combined with Treacy's findings, the facts were enough to justify the petition. Slip op. 23.
• "[I]t is implausible to suggest that the City Defendants would not have taken these actions but for some vague retaliatory motive." Slip op. 24.
• In any event, defendants did not themselves directly separate plaintiff from his son. The temporary orders of protection were issued by Family Court, and there is no assertion of substantial irregularities in those proceedings. Thus, the intervening judicial determination absolves defendants of liability.
• While the alleged inefficiency within ACS was "lamentable," it was not unconstitutional. Slip op. 4.

Weinstein also rejected plaintiff's claims of unreasonable search and seizure, malicious prosecution and equal protection, dismissed the state law claims with prejudice, and denied permission to replead. Slip op. 30-33.

Federal Tort Claims

In Nakamura v. United States, 10 CV 2797 (EDNY, May 7, 2012), Block determined that the United States has waived immunity for claims of false arrest/false imprisonment under the Federal Tort Claims Act (FTCA), 28 U.S.C. §2671 et seq.

Plaintiff Kenji Ryu Makamura was detained by Immigration officials upon discovery of more than 8,000 grams of cocaine in his luggage at John F. Kennedy International Airport. After criminal charges were dismissed without prejudice, he was kept in detention and served with a Notice to Appear at Immigration Proceedings. He was released only after the Notice to Appear was withdrawn.

Plaintiff asserted a claim for false arrest/false imprisonment based on his continued detention after the dismissal of criminal charges, and for malicious prosecution based upon the issuance of the Notice to Appear.

The United States moved to dismiss both claims on the ground that it had not waived its "sovereign immunity" under 28 U.S.C. §1346(b)(1). The government argued that plaintiff could not meet the "private analog" requirement of §2674, which provides that the United States shall be liable only "in the same manner and to the same extent as a private individual under like circumstances."

Block found plaintiff's false arrest/false imprisonment claim analogous to a claim against state or local law enforcement officials, and therefore sufficient to meet the "private analog" requirement. "[T]he government," the court noted, "is not insulated from liability simply because the acts complained of concern 'uniquely governmental functions.'" Slip Op. 7 (internal citation omitted).

The court did not reach the question of whether the malicious prosecution claim met the "private analog" requirement, as it dismissed that claim under §1252(g) of the Immigration and Nationality Act, which provides: "no court shall have jurisdiction to hear any case or claim by or on behalf of an alien arising from the decision or action of the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter."

Contempt

In In re Application of Debbie Gushlak Pursuant to 28 U.S.C. §1782 for the Taking of Discovery for Use in a Foreign Proceeding, 11 MC 218 (EDNY, April 30, 2012), Garaufis, adopting the Report and Recommendation of Magistrate Judge James Orenstein, granted applicant Debbie Gushlak's motion to hold her husband and his girlfriend in contempt for failing to comply with subpoenas.

The contempt order represents another chapter in the saga of Myron Gushlak. In the Eastern District Roundup column published on May 11, 2012, we discussed Garaufis' order directing Myron to pay $17.5 million in restitution arising from his guilty plea to conspiracy to commit securities fraud.

In connection with divorce proceedings in the Cayman Islands, in April 2011 Debbie sought production of documents pursuant to 28 U.S.C. §1782 from Myron and his alleged girlfriend, Yelena Furman. Garaufis granted the application, and both Myron and Yelena were served with subpoenas. Neither produced documents in compliance with the subpoena, filing notices of appeal instead. In response to Debbie's motion to hold them in contempt, respondents raised a number of objections to the Report and Recommendation, all of which Garaufis rejected.

First, respondents objected to Orenstein's denial of their motion for an evidentiary hearing regarding allegations that Debbie stole phone records in preparing her application for leave to serve the subpoenas. But her alleged theft was irrelevant to the issue before the court—whether respondents should be held in contempt for failing to comply with a court-ordered subpoena. The appropriate time to cite any theft would have been in a motion to quash the subpoenas. That time had passed.

Second, respondents complained that Orenstein failed to acknowledge proof of Debbie's "unclean hands." Once again, any bad act by Debbie prior to the issuance of the subpoenas was irrelevant to the contempt issue, which related only to whether Myron and Yelena had complied with the subpoena.

Third, Myron argued that he was entitled to an opportunity to be heard on the merits of the original application for documents. The court observed, among other things, that it had invited Myron to file a motion to quash the subpoenas, but he declined to do so and now it was too late.

Next, respondents objected to the recommendation that their motion for a stay pending appeal be denied. This objection was baseless for several reasons: (1) their likelihood of success on the merits was remote; (2) being compelled to produce non-privileged discovery material does not constitute irreparable injury; (3) the potential harm of a stay to Debbie would be substantial because she had waited almost a year for compliance with two subpoenas and the discovery was necessary to help prevent Myron from secreting assets; and (4) it was not in the public interest to grant a stay, which would be unjust, reward gamesmanship, and set a bad precedent.

Finally, respondents argued that the issuance of the Report and Recommendation was in error because the court did not retain jurisdiction to enforce the subpoenas after respondents filed their notices of appeal. Garaufis viewed this argument as legally baseless and in bad faith. Not only did respondents seek a stay of their appeal pending resolution of the contempt proceedings, but they constantly made motions during the contempt proceedings. Thus, they had taken contrary positions as a matter of convenience. Absent a stay, a court also has the power to enforce orders pending on appeal. Given the clear defect in the jurisdictional argument, the court ordered respondents' attorney to show cause "why he should not be sanctioned for making this frivolous objection." Slip op. 10.

Adjudging Myron and Yelena in contempt, the court ordered Myron to "pay $250 per day, every day, from the issuance of this order until he fully complies with the terms of the subpoena. If, after thirty days, he still has not complied with the subpoena, the court will entertain a motion by Debbie Gushlak for a revised and more coercive sanction." Slip op. 11. The court ordered Yelena to pay a fine of $250 a day until she fully complied with the subpoena.

In a subsequent memorandum and order, In re Application of Debbie Gushlak, 11 MC 298 (EDNY, July 2, 2012), Garaufis found that respondents' attorney had presented a frivolous legal argument to the court in bad faith. The court imposed sanctions and ordered him to pay a penalty to the court of $500.

Electronic Evidence

In United States v. Metter, 10 CR 600 (EDNY, May 17, 2012), Irizarry granted defendant Michael Metter's motion to suppress electronic evidence seized pursuant to warrants where the government failed to review the seized evidence to see if items fell outside the scope of the warrants.¹

Metter was charged with securities fraud, obstruction of justice, conspiracy to commit money laundering and perjury in connection with Spongetech Delivery Systems, Inc. stock. The government filed a sealed criminal complaint on May 3, 2010. It then seized computer hard drives from Metter's home and at Spongetech's office, under warrants issued pursuant to affidavits setting forth detailed information on the categories of documents that the government sought to "search, copy, image and seize" from the computers. The computer hard drives were seized in May 2010, copied and promptly returned to their owners. In November 2010, pursuant to warrants, the government obtained email account files for Metter's (and others') personal email accounts.

In November 2010, the government reported to the court that it had not begun a privilege review of the content of the seized hard drives and that it intended to provide defendants with imaged copies of the hard drives by January 2011.

In February 2011, the government represented that it would produce a list of the computers and emails seized by March 2011 and that it would set up a "taint team" to review the imaged evidence for privilege issues. The government said it intended to produce all the imaged evidence to all defendants and perform a privilege review later. Metter's counsel objected to the distribution of the material to all defendants.

As of the date of the court's decision, the government had not conducted a review of the evidence seized and imaged to determine whether any of the evidence fell outside the scope of the search warrant, nor had it completed a privilege review. Two years have passed since the execution of the search warrants.

As Irizarry noted, the question of how long the government could retain seized and imaged electronic evidence before conducting a review of that evidence to determine whether it fell outside the scope of the search warrant was an issue of first impression in the circuit. The court concluded that the more than 15-month delay here constituted an unreasonable seizure under the Fourth Amendment. Slip op. 11.

The Warrant Clause of the Fourth Amendment provides: "No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The particularity requirement was intended as a safeguard against a "general warrant." Computer searches, however, pose unique concerns, because an immediate search of the evidence is often not practical. Thus, some flexibility or latitude is necessary in conducting searches of computerized or electronic evidence, and the government is not expected to make onsite determinations.

Here, the warrants requesting offsite review were reasonable. The subsequent seizure, imaging and return of the hard drives were reasonable as well. But the government's failure to begin or even plan to begin a review of the data to determine whether any irrelevant, personal information was improperly seized reflected "blatant disregard for its responsibility in this case." Such inactivity, in the court's view, was "unacceptable and unreasonable." Slip op. 16. The government's intent to release to the co-defendants "any and all seized electronic data without a predetermination of its privilege, nature or relevance to the charged criminal conduct only compounds the assault on [Metter's] privacy concerns. It underscores the government's utter disregard for and relinquishment of its duty to insure that its warrants are executed properly." Slip op. 17.

Blanket suppression was appropriate because: (1) the affidavits supporting the warrants requested seizure of all information, which constituted a prohibited "general search," and (2) by failing to commence a review within a reasonable time and indicating that it had no intention of fulfilling its obligations, the government demonstrated lack of good faith. Slip op. 18-19. Irizarry concluded:

The court has not reached this conclusion lightly. However, the court cannot, in the interest of justice and fairness, permit the government to ignore its obligations. Otherwise, the Fourth Amendment would lose all force and meaning in the digital era and citizens will have no recourse as to the unlawful seizure of information that falls outside the scope of a search warrant and its subsequent dissemination. Slip op. 19.

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 July 13, 2012, issue of the New York Law Journal. Copyright © 2012 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]