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Yes, the New York City arts scene has a lot of money sloshing around in it, that of Minneapolis-St. Paul much less, but in neither instance are performing-arts labor unions doing well at reaching a livable accommodation with the needs of high culture. [Hoover "Defining Ideas"]

“Exhibiting a complete lack of common sense, the city’s Human Rights Commission is determined to take seven Hasidic-owned stores in Brooklyn to trial for the high crime of requiring modest dress of their customers.” Signs the HRC deems “discriminatory” include “No Shorts, No Barefoot, No Sleeveless, No Low Cut Necklines Allowed.” [editorial, New York Post] But shops catering to a secular clientele routinely post demands that their customers button up: no shirt/socks/shoes, no service, business attire only, and so forth. “Which means the city is targeting the Hasidic stores because of religion!” [Ann Althouse]


Here at Overlawyered we post a lot about the problem of police misconduct, which is a deep-seated one in our system and corrosive to individual liberty. But there’s a flip side too, presented here by Max McCann in a guest column: one-way fee provisions can create an incentive to file dubious or marginal misconduct complaints, and some commentators will predictably jump on those allegations as if they represented actual findings of wrongdoing. McCann is an attorney who represents the City of New York; the guest column (which previewed yesterday in the Daily Caller) reflects his views alone. Read it here.

More: Responses from Scott Greenfield and commenters.


[Guest column by Max McCann. McCann is a lawyer for the city of New York and Adjunct Instructor of Clinical Law at Brooklyn Law School. The views expressed are those of the author alone. A preview of the column ran at the Daily Caller, Sept. 23, 2013]

Most of the time, reporters avoid writing a story about an arrest in a way that assumes the guilt of the person charged. But when wrongdoing is charged against law enforcement itself, in the form of civil complaints against police officers, reporters too often treat plaintiffs’ contentions as if somehow pre-validated as findings of genuine misconduct.

Among the many stories written about lawsuits against the NYPD, examples of this type of reporting are easy to find. One typical headline: “14 Occupy Wall Street Protesters Sue NYC Over Unconstitutional NYE [New Year's Eve] Arrests,” which seems to assume that the arrests were, in fact, unconstitutional.

Many lawyers and activists are happy to encourage this mistake. A lawyer who represented a client in a sexual harassment case against an NYPD lieutenant that resulted in a settlement was quoted as saying, “[a]lthough our clients are satisfied that the litigation is over, it is further proof that the once-silent issue of same-sex harassment is on the rise.” Likewise, in a Daily News article, one activist was quoted as saying, “[w]here there’s this much smoke, there’s fire.”

That is one reason we should be cautious when we see headlines like this one, reciting that civil rights lawsuits against members of the NYPD are on the rise, costing New York City $185 million in fiscal year 2011. Often these reports simply take it for granted that — to quote the activist above — where there’s this much smoke, there must be fire. Why would so many civil rights lawsuits be filed, other than a high rate of misconduct by members of the NYPD?

One possible explanation is that many persons who get arrested find the experience disagreeable and strike back by filing a complaint, which helps solidify in their own and their families’ minds that the trouble they had with the law was not their fault. Another, which may strike readers as more surprising, is that even relatively weak cases can be profitable ventures for the lawyers who file these cases. In fact, the lawyers often win more than the actual plaintiffs.

Under current federal law, if a jury in a civil rights suit awards a plaintiff even a small sum of money, the municipality has to pay that amount plus the plaintiffs’ attorneys’ fees on top of that. Since the lawyers bill at upwards of $500 or more per hour, a minor award to plaintiffs can readily generate a large fee entitlement. Here are a few notable examples from lawsuits against the NYPD.

  • In Fryar v. City of New York, filed in Brooklyn federal court, the plaintiff claimed that he was unlawfully arrested and spent the night in jail as a result. At trial, the jury awarded the plaintiff $600, and the city had to pay his lawyers more than $78,000, even though the judge found that they had “engaged in bad faith discovery practices.
  • In Vilkhu v. City of New York, also filed in Brooklyn federal court, the plaintiff claimed that police used excessive force against him. At trial, the jury awarded the plaintiff $20,000, and the city eventually settled fees with his lawyers for approximately $500,000.
  • In Bradley v. Jusino, filed in Manhattan federal court, the plaintiff claimed that he was unlawfully arrested during an anti-war protest. After two mistrials, a jury awarded the plaintiff $20,000, and his lawyers received $750,000.

Although these are not typical outcomes, they show that plaintiffs’ lawyers can have huge financial incentives to bring marginal, not just high-value, claims to the attention of the courts. Making matters worse, attorneys’ fees are awarded after the trial by the judge, so the typical jury has no idea that its award of a few hundred dollars to the plaintiff may trigger a five or six-figure payout to the plaintiff’s lawyer.

Furthermore, the risks for the plaintiffs in these lawsuits are relatively low. If someone brings a frivolous suit against a police officer, and the city spends the resources required to win the case at trial, the plaintiff is unlikely to have to pay the city attorneys’ fees. That means, if the plaintiff wins, the taxpayers are on the hook for the plaintiff’s attorneys’ fees as well as the city’s. If the police officer wins, the taxpayers are still on the hook for the city attorneys’ fees.

Given this lose-lose situation, the city has a significant incentive to settle these cases prior to trial, generating a vicious cycle: the prospect of an easy settlement encourages more lawsuits.

Of course, a quest for attorneys’ fees is not the only reason plaintiffs’ lawyers go to court. Some are, no doubt, genuinely outraged about what they perceive as the unfair treatment of their clients. But in estimating the significance of any rise in civil suits against police officers, it’s worth keeping in mind that this is not just the pursuit of social justice. It’s an industry.



Whether or not the Drug War counts as an irresistible force, it seems to have run into an immovable object in the form of New York City teacher tenure [New York Law Journal]:

Termination was too harsh a penalty for a tenured teacher who created a spurt of news stories after he was found with bags of heroin when trying to enter Manhattan Supreme Court, where he was serving on jury duty….

“There is no evidence that the conduct with which petitioner was charged affects his performance as a teacher or that any publicity would impair his capacity to discharge his responsibilities as a teacher,” [Manhattan Supreme Court Justice Manuel] Mendez wrote in Matter of Esteban v. Department of Education of the City School District of the City of New York, 651904/13.

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Licensed to grill

by Walter Olson on September 12, 2013

CBS New York reports breathlessly on underground dinner parties in New York — people invite strangers into their homes! And charge them money! — and quotes an ex-official who says it should be illegal unless they get a restaurant-type license. [CBS New York (auto-plays video ad), Shackford] Radley Balko, on Twitter: “Reporter astonished that New Yorkers invite people into their homes for dinner without notifying the local politburo.” More: J.D. Tuccille.


August 16 roundup

by Walter Olson on August 16, 2013

  • As football helmet makers come under litigation pressure, one company’s label simply advises not playing football [New York Times, ABA Journal]
  • D.C. Circuit: Obama administration has broken law by stalling action on Nevada nuclear site [AP/ABC News, In re Aiken County (PDF)]
  • Unexpected venue? Writer in National Review suggests legalizing prostitution [Charles Cooke]
  • Eight reasons New York City rent is so ridiculously high [Josh Barro]
  • “How much is a life worth?” [Kenneth Feinberg profile in National Journal]
  • Ed Markey vs. amusement parks [Elie Mystal, Above the Law]
  • How easy is it to pull real estate deed fraud? You (and the owners of the Empire State Building) might be surprised [Now I Know]

Public employment roundup

by Walter Olson on August 14, 2013

  • “Retirement benefits cost Connecticut more than half of payroll” [Raising Hale] Jagadeesh Gokhale, “State and Local Pension Plans” [Cato] “In the report Krugman cites, the researchers note (repeatedly) that the trillion-dollar figure is very likely a dramatic understatement of the size of the unmet liability.” [Caleb Brown]
  • California: “Bill would reinstate state workers who go AWOL” [Steven Greenhut]
  • Eyebrow-raising federal salaries at unaccountable-by-design CFPB [John Steele Gordon, Commentary]
  • “North Carolina Ends Teacher Tenure” [Pew StateLine]
  • Not all states would benefit from a dose of Scott Walkerism, but Massachusetts would [Charles Chieppo, Governing]
  • “Prison Ordered to Hire Back Guards Fired over an Officer’s Murder Because Everybody Else Was Awful, Too” [Scott Shackford]
  • “New York State Lags on Firing Workers Who Abuse Disabled Patients” [Danny Hakim, New York Times] NYC educators accused of sex misconduct can dig in for years [New York Daily News]
  • “Pennsylvania’s GOP: Rented by Unions” [Steve Malanga, Public Sector Inc.] NYC’s Working Families Party expands into Connecticut [Daniel DiSalvo, same]

The new four-judge decision is unanimous, which means every judge to consider the matter has now agreed that the NYC Department of Health overstepped its legal powers. And they’re right, as I explain here at Cato. Earlier here, here, here, etc.

One person who presumably had not expected today’s result is Emily Bazelon at Slate, who has claimed that Judge Milton Tingling’s trial-court decision was somehow a venture into conservative activism. None of the New York appellate judges heard from today give evidence of sharing that view.


Food roundup

by Walter Olson on July 29, 2013

  • “Farm Free Or Die! Maine Towns Rebel Against Food Rules” [NPR on "food sovereignty" ordinances]
  • “How much sense does it make for Detroit to be worrying people will open restaurants without enough parking?” [@mattyglesias]
  • Report: undercover cop co-wrote anti-McDonald’s leaflet that resulted in famous UK libel suit [Guardian]
  • Quizzed on food policy, post-Bloomberg NYC mayoral hopefuls offer many bad ideas; Republican John Catsimatidis, grocer, proposes regs “that would require new buildings to rent to grocery stores.” [Edible Geography]
  • Spontaneous consumer discontent over labeling? No, lawyer-driven: consortium of law firms has sued more than 30 food cos. in single federal court [WLF]
  • Private GMO labeling a wave of the future? [Baylen Linnekin]
  • “Eight toxic foods: a little chemical education” [Derek Lowe, Corante "Pipeline", schooling BuzzFeed]
  • Obamacare calorie-count display mandate likely to curb menu variety [Liz Thatcher, RCP, earlier]

I have a few things to say about it at Cato at Liberty (& welcome Reihan Salam, Abby Schachter, Scott Greenfield readers).

P.S. “Eliot Spitzer wants New Yorkers to give him the one thing he has never shown anyone else: forgiveness.” [John Dickerson] “Spitzer: Prostitution Should Remain Illegal, ‘Fundamentally Wrong’” [Daniel Halper, Weekly Standard]

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People can’t stop gawking at this Manhattan couple’s lawsuit against a $39,000/year private school. The lad in question was in kindergarten: “On one occasion, plaintiffs’ 5-year-old son was relegated to the role of ‘door-holder’ and ordered to hold the door for all of the other students.” Mr. and Mrs. Heinemann also say they got stuck with an unplanned $50,000 winning “bid” for a finger painting at a charity auction, and are additionally suing for the cost of continuing to employ their child’s $60,000/year chauffeur, “whose job they want to save.” [New York Post]


Guns roundup

by Walter Olson on June 24, 2013

  • Bloomberg’s Mayors Against Illegal Guns blurs lines between 501c(4), New York City government sponsorship [Politico]
  • “Ordinary purposes” of derringer include carrying it around routinely with safety not engaged, argue lawyers in product liability case [Abnormal Use]
  • Connecticut’s confiscatory law: “State took guns of man for mischief night egg fight” [Greenwich Time]
  • “This kind of insurance doesn’t even exist.” Concern over D.C. councilor Mary Cheh’s proposal for mandatory $250K coverage for gun owners [Washington Times]
  • $60K New York City fine for tourist shop that sold gun-shaped lighters [Reason]
  • And more annals of gun hysteria: “Suspension over gun-shaped toaster pastry is now permanent mark on kid’s record” [Eric Owens, Daily Caller] Episode of Lego-sized toy gun ends more happily [LtB] “‘Playing with Toy Guns Desensitizes Children to Using Real Guns…’ Uh, Sez Who?” [Free-Range Kids]
  • “Defense of mass surveillance = defense of more gun control: To get bad guys, treat EVERYONE like a criminal.” [@ABartonHinkle]

The former Mercedes showroom on Park Avenue in Manhattan was one of only three Frank Lloyd Wright projects built in New York City, along with the Guggenheim Museum and a Usonian house on Staten Island. “On March 22, the Landmarks Preservation Commission called the owners of 430 Park Ave. to tell them the city was considering designating the Wright showroom … as the city’s 115th interior landmark. … on March 28, the building’s owners, Midwood Investment & Management and Oestreicher Properties, reached out to another city agency, the Department of Buildings, requesting a demolition permit for the Wright showroom. The permit was approved the same day, sealing the showroom’s fate.” [Matt Chaban/Crain's New York Business, New York Times, Metropolis] That’s only the latest in a series of incidents in which the prospect of city intervention under Gotham’s famously cumbersome preservation laws has precipitated teardown instead [New York] More thoughts: Scott Greenfield.


“Mr. Smith says he is simply trying to get the truth out about New York’s powerful. … But I came to believe that his intent could well be to tell fanciful stories in hopes of drawing media attention to extract settlement payments in his lawsuits.” [Andrew Ross Sorkin, New York Times]

“Five confessions elicited by Brooklyn detective Louis Scarcella all began with similar language: ‘You got it right’ and/or ‘I was there.’” One was that of David Ranta, released after serving 23 years after district attorneys concluded there were serious irregularities in his conviction, and another was that of Jabbar Washington, who had an alibi but was nonetheless convicted on the strength of a confession he says Scarcella forced him to sign. [New York Times and more via ABA Journal] More: Scott Greenfield was on it last month.

May 31 roundup

by Walter Olson on May 31, 2013

  • The American Illness: Essays on the Rule of Law, new book from Yale University Press edited by Frank Buckley, looks quite promising [Bainbridge]
  • So the New York Times gets spoon-fed “confidential” (and disappointingly tame) documents from the old Brady Campaign lawsuits against gunmakers, and then nothing happens;
  • IRS commissioner visited White House 118 times in 2010-11. Previous one visited once in four years. Hmmm… [John Steele Gordon, more] (But see reporting by Garance Franke-Ruta and commentary by Yuval Levin.) Did politics play role in 2011 Gibson Guitar raid? [IBD]
  • Supreme Court of Canada: “Judges may ‘cut and paste’ when writing their judgments” [Globe and Mail]
  • Lack of proper land title and registration holds Greece back [Alex Tabarrok]
  • I try not to clutter this blog with links to memoir-ish personal pieces of mine, but if you’re interested in adoption, or in how America manages to be at once the most conservative and the most socially innovative of great nations, go ahead and give this one a try [HuffPost]
  • Big Lodging and hotel unions don’t like competition: New York City’s war against AirBnB and Roomorama [John Stossel, Andrew Sullivan]


“Two Fordham University law school classmates who set up a law practice together a few years after graduating are now both facing nine-month suspensions for pursuing a fraudulent personal injury case.” Daniel Levy and Shane Rios represented a woman who claimed to have slipped in front of a Yonkers church; when they investigated the sidewalks, they found no problem with the church’s, but did find a trip hazard in front of a house across the street. They advised her that she would have a winning case only against the homeowner, not the church, and she changed her story accordingly. They proceeded to conceal the original stance of the case both from the court and from a third lawyer they brought in to help. To the New York courts, this misconduct merited a suspension only of nine months. [ABA Journal, New York Law Journal]

P.S. “Maryland would have disbarred these clowns.” [@BruceGodfrey]