Actions Speak Louder Than Woofs

Diane Petillo has the honor of posting our 100th post:

And now for an update on a previous post in the case ofCave v. East Meadow Union Free School District, et al. John Cave, Jr. testified in the United States District Court for the Eastern District of NY (Central Islip) on February 22nd before EDNY Judge Arthur Spatt, at which time he detailed how the school’s refusal to allow him to bring Simba, his service dog, to school has impacted his relationship with Simba, as well as his training.

John testified that, as a result of the time he has been forced to spend away from him, Simba’s skills are waning. John went on to testify that: "He's breaking his commands at home when he's not supposed to. He's barking at sounds. He's not allowed to do that," Cave said. "He's not doing as well because he's not going to school."

During his testimony, Cave said Simba has been trained to alert him to cars, smoke alarms and bell rings by nudging him. Without the dog, Cave said, he couldn't respond immediately when a fire alarm sounded at school recently. It was only after John saw the other students getting up that he asked someone, who then informed him that the fire alarm had rung.

If Simba had been with him, one nudge from him would have alerted John immediately that there was a problem. Imagine that instead of being in a classroom with other students, John was in a bathroom stall by himself. Would someone have gone looking for him, or would he eventually figure out that something had happened when he saw no one else in the building?

Imagine, for a moment, the world around you has quieted. If you would indulge me this simple exercise, please turn on your television (or hit play on a YouTube broadcast if you are not near a television screen), mute the sound, and turn off the caption for a few minutes. How much of the conversation were you able to comprehend? It is obvious to me that you will realize how much of our world is auditory, and how much we fail to grasp when deprived of the gift of hearing. This is the world of John Cave, Jr., and so many people like him.

I have been criticized in a recent blog response regarding my analogy of Simba to John with eyeglasses to those who are visually impaired. I thank Kathy Podger for her support in this analogy. Service animals, trained specifically to help individuals overcome the limitations of their disabilities are no different than eyeglasses, hearing aids, canes, wheelchairs or other equipment.

Animals that meet the definition as set forth by the Americans with Disabilities Act are considered ‘service animals’ regardless of whether they have been licensed or certified by a state or local government or any other public or private entity. If you scroll down the last link, you will see that fear of allergy or dogs does not entitle the public entity to deny the animal access.

Under the Americans with Disabilities Act, persons who rely upon service animals have the right to have their animals accompany them wherever they go. This includes public buildings, railroads, and the subway.

The American with Disabilities Act is quite clear on this point. It is not about the device; it is about the individual’s needs. It is about what John is entitled to under the law.

P.S.: During the entire 90-minute testimony, Simba was quiet and still. Apparently, Simba is his own best argument that he will not be a disruption in class. After all, actions speak louder than woofs.

42 USC 1983 After Wallace v. Kato: What To Do Now

This is a hopefully going to be a short post. Last week (in fact the day after the court heard argument in Rita/Claiborne) it announced its decision in Wallace v. Kato. The issue effects both criminal lawyers and civil rights attorneys (or for those of us at The Law Offices of Anthony J. Colleluori & Associates, PLLC. both sides of our brains.)
Up until now it was always the procedure, that after a person was arrested (and imprisoned) he would be able to sue the government, whether or not he filed a notice of claim against the county, by alleging the same behavior(e.g. false arrest and unlawful imprisonment) through the use of a 42 USC 1983 suit. In the US District Courts in NY, The statute of limitations was always thought to be within three years of the end of his incarceration and his prosecution whichever came later.

NO MORE

The court in its decision in Wallace has changed a number of things dealing not only with filing but also with pleading the case.

1. False arrest is a subset of unlawful imprisonment.
2. The statute of limitations for a 42 USC 1983 claim arising from an unlawful imprisonment claim is as long as the time one has to file a personal injury suit in the state where the action accrues. In New York State, that means 3 years.
3. The date of accrual begins on the date of arrest and the tort ends at the time of arraignment.
4. All the damages that occur after arraignment are properly recompensed in a Malicious Prosecution based suit not by a false arrest/unlawful imprisonment cause of action.
5. While a Malicious Prosecution based suit's statues of limitations may be tolled by the case of Heck v. Humprey, 512 US 477(1994), actions for false arrest and unlawful imprisonment are not so tolled.

Now here's the thing, we all know that it is easier to win a false arrest/unlawful imprisonment case, because it does not require that we win the underlying criminal action. We can accept a dismissal that is favorable on the issue of the arrest not the prosecution (ACOD's [ACD's for NYC Guys]; Dismissal in the interest of Justice, speedy trial dismissals). Malicious Prosecution based causes of action, requires a favorable termination of the prosecution itself. So in order to preserve the clients right to compensation, we have to go to trial, or at least get a "full surrender" from the DA on the prosecution's merits(a "no true bill" from a grand jury counts.)

Remedies and Strategy:
A. File a notice of claim under all circumstances. IF the attorney for the criminal defendant is not the same one as the attorney on the 1983 action, the criminal attorney would do well to keep up with his colleagues and help him draft the notice of claim. The criminal attorney should also warn the defendant about his rights to the civil rights action, otherwise he chances a malpractice suit.

B. At the very least, send a letter to the county attorney or city corporation counsel. Be sure to set out the date of occurrence, the participants and give enough information to put the county on notice of what they need to defend themselves. (One reason given for the need to file within three years of accrual is so the government will be able to gather the necessary evidence to defend itself. Hence even if you are too late to file a normal notice of claim, either file one late and as soon as possible or send a letter which follows that statute.) This is not to say a that such a letter is now a condition precedent to file a 42 USC 1983 claim, it isn't.

C. When stating damages for the false arrest and unlawful imprisonment claim, allege the further detention and prosecution of the plaintiff constituted "consequential damages" attributable to the false arrest.

D. Name the complainant in the action even if you will later not try to collect the judgment from her because of non deep pockets.

E. Bring the lawsuit timely. The court will stay the action pursuant to Quackenbush v. Allstate, 517 US 706 (1996).

F. If the client should lose in the criminal prosecution, the False Arrest/Unlawful Imprisonment case will be dismissed.THIS IS NOT THE END OF THE CASE. Notify the client that IF the case is later overturned he must immediately seek to refile the case in the US District Court. It seems he should have at least 90 days to do so, but get it done as quickly as possible. The Wallace decision in footnote 4 states that the Heck bar is not an immunity granting vehicle. The District Court should grant the defendant time to refile. I imagine that the period would be equivalent to the period under the FRCP to file in state court if the federal claims are dismissed, but the court did not say how long he has in the Wallace decision.

Remember that these changes are immediate so get to work to protect the rights of the wrongfully accused.