Friday, April 18, 2025

Anti-mobbing scholars prepare for 2nd N.Y. conference; proposals due May 1; register for in-person by June 1

Colleagues, higher ed students, researchers, and practitioners across disciplines: The 2025 Niagara Conference on Workplace Mobbing, July 21-23, 2025, is open for proposals, due May 1, and registration, due June 1 for in person, or later for virtual.

Here is an invitation letter, circulated since March, by my dear friend and colleague, Dr. Qingli Meng, who superintends the conference on the ground at Niagara Falls.

Read more about mobbing at The Savory Tort.


Dear Colleague,

We warmly invite you to join us, either in person or virtually, for the hybrid 2025 Niagara Conference on Workplace Mobbing (NCWM), taking place Monday to Wednesday, July 21–23, 2025, at Niagara University, Niagara Falls, New York, USA.

Workplace mobbing is a serious issue in the work environment that was first identified in the 1980s. However, its existence and impact were not widely acknowledged by the public. Instead, it is often referred to as workplace bullying, leading to semantic confusion.

Mobbing is a form of psychological terror in which individuals gang up on a target. As Leymann (1990) described, "It occurs as schisms, where the victim is systematically stigmatized through various injustices, including violations of their rights. Over time, this can result in the individual being unable to secure employment in their field. Those responsible for this tragic outcome can be either colleagues or management."

The 2024 NCWM marked a significant milestone in establishing workplace mobbing as a comprehensive scholarly discipline. See the following YouTube link for the 2024 NCWM presentation videos: https://www.youtube.com/watch?v=vQ7OwOYUlXM&list=PLZGaVSbKSiyNcB5AwAA8Xhp9srGIrKGAe 

We are thrilled to announce that Niagara University has received generous gift donations to support workplace mobbing initiatives. This funding has made it possible to:

  • Make the Niagara Conference on Workplace Mobbing (NCWM) an annual event
  • Launch a workplace mobbing journal 
  • Establish the World Association for Research on Workplace Mobbing (WARWM)
  • Deliberate on creating the Niagara Institute for Research on Workplace Mobbing (NIRWM)

While we encourage in-person attendance to facilitate networking and knowledge exchange amidst the scenic beauty of Niagara Falls, we understand that time and financial constraints may prevent some from traveling. Therefore, we are continuing with a hybrid format, offering both in-person and virtual participation.

Registration Information

  • In-person participants: $150
    • Includes lunches, coffee, fruit, and snacks on July 21–22, 2025
    • Sit-down dinner at the DoubleTree Hotel ballroom on Tuesday, July 22, 2025
    • Complimentary tour of Niagara Falls attractions on Wednesday, July 23, 2025
  • Virtual participants: $75
    • Access to all presentations, including opportunities to ask questions, provide feedback, and join discussions
    • Receive a 2025 NCWM Attendance Certificate.

Important Deadlines

  • May 1, 2025 – Deadline for abstract submissions (for those wishing to present)
  • July 1, 2025 – Deadline for in-person conference registration ($150)
  • No deadline for virtual conference registration ($75)

Conference presenters are invited to submit their papers for publication in the Journal of Workplace Mobbing (currently in development).

For more details and registration, please visit the conference website: https://www.niagara.edu/workplace-mobbing-conference/.
 

Accommodation: Niagara Falls offers a variety of hotels, motels, and inns. As July is peak tourist season, we strongly encourage in-person participants to book accommodations early. For the conference hotel (DoubleTree), please use the following link for reservations ($152 per night plus tax): https://group.doubletree.com/igabhd.

For questions and inquiries, please contact the conference Registrar, Dr. Qingli Meng, at qmeng@niagara.edu.

With collegial regards,
Qingli Meng

Qingli Meng, Ph.D.
Niagara University
Registrar, Niagara Conference on Workplace Mobbing (NCWM)

Thursday, April 17, 2025

Tree falling on house invites court to parse 'discretion' in ruling city vulnerable to tort liability

Google Gemini CC0
A straightforward case in the Massachusetts Appeals Court last week helps to clarify the meaning and purpose of discretionary function immunity from tort liability for both state and federal governments.

A tree fell on the plaintiff's house. The tree was on city property and under the care of the tree warden, yes that's a thing, of the city of Chicopee, Massachusetts. The plaintiff alleged that the warden, and thereby the city, was negligent for failing to remove the tree or otherwise abate the threat to property. The plaintiff proffered evidence to show that the city had reason to know the tree was not healthy.

Discretionary function immunity, provided for by both the Federal Tort Claims Act (FTCA) and the Massachusetts Tort Claims Act (MTCA), draws a fine line between ordinary accidents which the legislatures sought to compel the governments to answer for in the courts, and matters of policy. 

The plaintiff-pedestrian struck by a car driven by a government worker may sue. But the voter disgruntled over climate policy should seek a remedy at the ballot box, not in the courts. In this way, discretionary function immunity polices the very boundary between distributive justice and corrective justice, that is, the provinces of the political branches and of the judiciary, respectively.

The courts under both statutes have developed similar two-part tests. A federal court must ask, first, whether the government action involved an element of choice, or judgment, and second, critically, whether that judgment implicates public policy, that is, social, economic, or political considerations. The Massachusetts courts, under MTCA section 10(b), make the same inquiry with slightly different language, asking whether the government action involved "policy making or planning."

A perennial problem with discretionary function immunity is the name of the thing. It sounds like the exercise of discretion should trigger the immunity. But that's an oversimplification. It's really about the exercise of policy discretion. The government driver who runs a red light might be said to have exercised discretion when she put her foot on the gas. But it's unlikely that that exercise implicated public policy. Now had government officials decided not to install a traffic light at that intersection at all, having weighed the costs and benefits of injury and infrastructure, that would be a policy choice, immune from challenge in tort law.

The meaning of "discretionary" was precisely the hang up in the present case. Complicating matters, a Chicopee city ordinance expressly dedicated tree removal to "[t]he discretion and sound judgment of the Tree Warden alone" (my emphasis). The Appeals Court correctly reasoned that the discretion of the ordinance was the broader sort; the MTCA refers specifically to a "subset" of discretion involving "policy making or planning." In other words, the tree warden was driving the car, not planning the traffic lights.

The case is Citation Insurance Co. v. Chicopee, No. 24-P-309 (Apr. 9, 2025) (Justia). Justice John C. Englander wrote the unanimous opinion of the panel, which also comprised Justices Henry and Desmond.

Tuesday, April 15, 2025

Buzz surrounds Bobi Wine: docko, presidential rerun

Bobi Wine: Presidential material?
VOA public domain photo via Wikimedia Commons

Podcast Snap Judgment talked to director Moses Bwayo in March about his Bobi Wine documentary, the first ever Oscar nominated film from Uganda, and Bobi Wine will run again for president of the East African nation.

I wrote in February 2024 about Bobi Wine: The People's President (2022) (IMDb) and Brooke Gladstone's interview with Wine and Bwayo for WNYC's On the Media. According to Snap Judgment, the documentary "received a ten minute standing ovation at its premier[e] at the Venice film festival." The film is being distributed by National Geographic and is streaming on platforms including Disney+.

Last week, Wine said he will run again for the presidency in Uganda in the quinquennial election in January 2026, and he believes that the Ugandan youth vote can push him to victory. "We cannot just give the election to General Museveni," Wine told The Guardian.

For a time it was thought that the six-term hegemony of President Yoweri Museveni would transfer to his son, General Muhoozi Kainerugaba. But Kainerugaba dropped out of the race late last year and endorsed his father—not a given (VOA). Museveni will turn 81 in September.

USAID cuts meanwhile have hit the Ugandan LGBTQ community hard. Museveni has been "intensifying [a] crackdown," The New York Times reported, since 2023 passage of laws threatening life imprisonment for same-sex relations; up to 10 years for attempt; and the death penalty for same-sex relations with minors or disabled persons. The Times explained:

The United States provides more than $970 million annually in development as well as humanitarian and security assistance to Uganda. In 2023, about $440 million was spent on health programs, followed by emergency relief, agriculture and education services, according to U.S. government data.

For years, the United States supported L.G.B.T.Q. groups in Uganda through U.S.A.I.D.-funded initiatives, offering H.I.V. treatment, legal training and resources for activism. Previous U.S. governments also condemned human rights violations against gay Ugandans, imposing trade and travel restrictions in response.

Oddly enough, Kainerugaba urged the Trump administration to restore aid for HIV treatment, according to the Times. Kainerugaba, who commands the military, had threatened Wine on social media. Wine himself has had a controverted record on LGBTQ rights.

Saturday, April 5, 2025

Bar comprises haves, have nots; ABA chooses haves

Yesterday I submitted the following open letter to the leadership of the International Law Section (ILS) of the American Bar Association (ABA). I note that it is not possible for law professors at ABA-accredited schools not to be members of the ABA; the schools pay for group memberships, on top of hefty accreditation fees. At present, the ABA is empowered with government-sanctioned accreditation authority over legal education in the United States.


To the leadership of the International Law Section of the American Bar Association.

$895, the registration fee for academics for the ILS annual, is beyond the pale. I note that I might not have been able to go this year anyway, because of a conflict. But I write because this is a persistent problem. Last year I complained about the fee, which I think was $795. I was told I was heard. Apparently heard and dismissed.

Ten years ago, I registered for the ABA ILS for $295. That's a cumulative inflation rate of 203%. The U.S. 10-year inflation rate generally is about 25%.

The ABA must think that all academics are the same. So let me be plain. My annual salary, after about 30 years in academics and holding the highest academic rank on my public-sector faculty is about $193,000. My budget for professional development is $5,000 this year. It was $5,000 10 years ago. It was $5,000 15 years ago. Every year, working in public service, I must do more with less. As that's impossible, that means dipping deeper into my own pockets, which are not getting deeper fast enough to keep up with the ABA.

The starting salary, with no experience, for a law professor in the Boston market ranges from $185,000 to $213,000. The high end of the law-school teaching scale in the market comes in at about double what I make. (Salary.com.) I don't know what the benefits are, but I bet they've grown faster than mine.

I speak of my own experience here, because that is what I know. But to be fair, I make decent money, relative to the American labor market. I know that and try not to take it for granted. What is more worrisome about ABA's economic exclusion is its impact on both new and practicing lawyers who have committed their labors to public service.

The ABA sends the unequivocal message that persons in public service are not welcome in ILS--that internationalism in law is only for the well off, or worse, that professional association per se, beyond compulsory licensing, is only for the well off. My students graduating in public service careers--NGO registration fees are the same as academic--will be lucky to start out at a third of my pay and might not reach my pay in the course of a career.

Accordingly, I have, for some time, stopped advising students to join ABA. Now I will advise them affirmatively not to waste their time and money. I steadfastly sang the praises of ABA membership for more than 25 years, including 10 years on the TIPS Task Force on Outreach to Law Students. The most important advantage of ABA for me and for new lawyers, I long asserted, was conference programming and networking. I see that the ABA now intends those benefits to be exclusive to big money makers in the private sector.

Yesterday I participated in an ILS committee meeting. You will hear soon from that committee that no one volunteered to move into any leadership role beginning next year. No one includes me.

Sincere farewell,
Rick Peltz-Steele

Friday, April 4, 2025

Peltz markets music, med tech

Back in 2023, my brother Spencer Peltz was first assistant director on Hannah Ellis's "Wine Country" video, while he was working in marketing out of Texas. I'm belatedly enjoying his work and congratulating the marketing genius on a new job he started in 2024 with Arthrex medical device manufacturing. More on Ellis, wine, and country at Food and Wine. More on hip arthroscopy to come.... 🍷

Wednesday, April 2, 2025

Big Law cowardice calls legal licensure into question

The WAMU podcast 1A put on an excellent show Monday on the White House threats against law firms.

The show featured Princeton University Professor Deborah Pearlstein, Politico reporter Josh Gerstein, and Elias Law Group Chair Marc Elias.

Highlights for me:

  • Pearlstein questioned the ethics of the firms that have caved to Administration pressure. How can a client trust Paul Weiss to provide zealous representation, she asked, when the firm so readily caves to political pressure?
  • Elias called the deals struck by Paul Weiss and Skadden, inter alia and respectively $40 million and $100 million payoffs in legal services, "cowardly" and "obscene" and questioned whether the practice of law should continue to be protected by the exclusivity of licensing.

Agreed and agreed. I suggest moreover that the weakness of the legal profession and its willingness to sell out for the bottom line has been the American way already for decades. That Big Law has locked down the profession and lobbies anti-competitively to keep it that way—thereby denying access to legal services, legal education, and legal careers to ordinary Americans, while building and bolstering an anti-democratic corporatocracy—is nothing new to those of us who toil away on the hamster wheels beneath the status ceiling.

It's simply Trump's shameless gambit that has exposed the rot.

In the less cowardly vein, Perkins Coie, WilmerHale (Court Listener), and Jenner & Block (Court Listener) are litigating against the executive orders targeting law firms. I anticipate signing on to an amicus brief of law professors in support of the plaintiff motion for summary judgment in the Perkins Coie matter in the U.S. District Court for the District of Columbia.

Update, Apr. 3: Law Professors' Amicus Brief in Perkins Coie v. DOJ (D.D.C. filed Apr. 3, 2025).

Tuesday, April 1, 2025

'No Other Land' scores with human story, mesmerizing cinematography, surprising cameos of law

A Palestinian-Israeli collaboration yielded the Academy Award-winning documentary No Other Land, which is well worth the price of admission.

No Other Land plays the Avon in Providence, R.I.
RJ Peltz-Steele CC BY-NC-SA 4.0
I disclaim: it was neither paroxysm of wokeism nor Oscar allure that drew me and my wife to an actual theater last weekend for No Other Land (2024) (IMDb). Rather, I was enticed by news that the film failed to secure mainstream distribution in the United States, for fear of protests, and, accordingly, that its debut at the independent O Cinema South Beach drew threats of retaliation.

I'm a sucker for a free speech story. That, and our favorite Indian restaurant is across the street from the independent Avon Cinema in Providence, Rhode Island. I did not expect No Other Land to live up to its Rotten Tomatoes perfect score. It did, and then some.

No Other Land is the product of four co-directors, Basel Adra, Hamdan Ballal, Yuval Abraham, and Rachel Szor. A Palestinian activist and Israeli journalist respectively, Adra and Abraham are featured in the film, which intimately depicts the slow battle between residents and the Israeli army over the villages of Masafer Yatta in the southern West Bank. The film covers 2019 to 2023, when Adra lived in Masafer Yatta and Abraham visited there to write about the army's destruction of homes in an effort to evict Palestinians from the land.

No Other Land does not try to relate other than the Palestinian side of the story. But it also doesn't try to hit you over the head as a polemic; I had been worried about investing 90 minutes in that vein. The beauty of the film—and it is beautiful, worth time in front of the big screen, despite the tragic subject matter—is in the depiction of human relationships in the face of profound adversity: within and between the families of Masafer Yatta, in how the Palestinians relate to Abraham as an outsider, and, at the heart of it, in the sometimes awkward but deepening friendship of Adra and Abraham.

Law figured in No Other Land in some surprising ways. On the face of it, the tragedy of Masafer Yatta was precipitated by Abu ‘Aram v. The Minister of Defense, a 2022 ruling of the Israeli Supreme Court, sitting as the High Court of Justice, green-lighting the eviction of Palestinian residents for the purported purpose of creating an Israeli military training zone. 

Notwithstanding realist accusations of naked partisanship, the court rested its ruling on the classification of the land, by prior agreement, as under Israeli security control. Civil society the world over decried the ruling as inconsistent with human rights law concerning occupied territories. For more, here's an informative commentary by Yaël Ronen, a law professor in Jerusalem, writing at the time for the West Point Lieber Institute's Articles of War.

Basel Adra and Yuval Abraham receive film award in Berlin.
Martin Kraft (photo.martinkraft.com)
via Wikimedia Commons CC BY-SA 4.0
The law figured also into the story at the more intimate level. The film surfaced the fact, which I had not learned from any of the hype, that Adra trained as a lawyer, not as a filmmaker or journalist. Here is an exchange in the film between Adra and Abraham.

ABRAHAM: Nothing on mainstream news about the demolitions. As if it happened, but also, it never happened.

ADRA: We'll keep filming everything. And we have to think how to reach more people in different ways. That would be excellent I think.

ABRAHAM: Why are you on your phone all day?

ADRA: It's from stress. Stress, stress, stress.

ABRAHAM: You're afraid something will happen?

ADRA: Yes, but also I'm stressed because I have nothing to do.

ABRAHAM: What do you mean?

ADRA: I don't know.

ABRAHAM: What?

ADRA: What can I do besides being on my phone? Huh? I have nothing else, only my phone.

ABRAHAM: What would you like to do?

ADRA: Anything else.

ABRAHAM: But you studied law, can't you practice it?

ADRA: That's something I lost hope in. Students like me studied so hard for a law degree. But our economy is ruined. You can find work only in Israel.

ABRAHAM: What work?

ADRA: Construction. No other option. Like you never went to university. What do you think? If you were in my place, what would you think?

The scene captures the utter despair of Palestinians in Masafer Yatta. And at the same time, Adra smiles intermittently. His indomitable spirit is irresistibly charming.

The conversation is revealing, too, of a mesmerizing cinematographic device at work in No Other Land. Adra is on his phone a lot; the phone, in fact, or smartphone videography, almost becomes a character itself in the narrative.

There are two kinds of video in the film. First, there is smartphone video, often the very same clips that Adra and others upload to social media in the online battle of public relations playing out for the world. Second, there is the high-quality video of the movie camera.

Adra and other Palestinians, as well as Israeli soldiers and civilian authorities, are seen constantly wielding smartphone cameras. The film in fact is bookended with older personal video from Adra's childhood. In the conflict, Palestinians use their smartphones as witnesses, for example, announcing to a soldier, "I am filming," in an effort to deter violence. These videos bring raw and jarring urgency to the big screen.

At the same time, movie cameras never stop rolling, and for them, the fourth wall never breaks. When the smartphones are turned off, the movie cameras continue to capture the mundane but moving interludes that constitute life between exigencies: Adra left alone at night when Abraham drives off to the security of his home; the tears of a mother left to care for a dying son.

No Other Land is art and reality at once. It deserves its accolades, and it should be seen. If it tells only part of a story, so be it. It bears truths that must be reckoned with nonetheless if ever there can be a way forward in the Israeli-Palestinian conflict.


Kadai chicken, Rupee Basmati Rice Lager, and chicken madras at Kabob and Curry, Providence, R.I.
RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying mouthwatering presentation

Monday, March 31, 2025

Government used soccer tattoo, 'rock'n'roll salute' as evidence against Venezuelan deportee, lawyer asserts

According to his lawyer, a tattoo and a hand gesture are the sum of evidence against at least one Venezuelan man who was deported to the El Salvadoran gang prison among what the federal government has called "the worst of the worst."

Left: Real Madrid logo; right: artist conception.
Left: © Real Madrid CF, adapted in part by Coloring Pages for Toddlers;
here fair use. Right: Same crown with free clip art ball and Word lettering;
RJ Peltz-Steele CC0 with no claim to underlying works.
The face-off between the Trump administration and U.S. District Chief Judge James E. Boasberg over deportations has stoked strong suspicion that the enforcement action swept up men who pose no threat to the peace, have legitimate claims to refugee status, and now have been condemned wrongfully to imprisonment in El Salvador, a country foreign to them and their families.

The suspicion is not easily vindicated because the men are gone from the United States and inaccessible in El Salvador, and the evidence against them is secreted in the hands of the federal government. Yet one by one, stories are emerging that cast doubt on the official narrative. 

Immigration attorney Linette Tobin, a member of the D.C. Bar, has been making the media rounds to tell the story of one client, Jerce Reyes Barrios. Tobin told outlets, including NPR, that she has seen the evidence against Reyes Barrios (family photo via ABC News), and it comprises nothing other than a tattoo and social media images of a hand gesture, both with innocent explanations. 

Left: Horned hand. RJ Peltz-Steele with Google Gemini CC0
Right: ASL "I Love You." LiliCharlie via Wikimedia CC BY-SA 4.0
According to Tobin, Reyes Barrios is a 36-year-old professional soccer player and father of two who has a tattoo unrelated to any gang other than Spain's very legitimate and globally popular Real Madrid Club de Fútbol (RMCF). A variation on the RMCF logo, the tattoo pictures a crown atop a soccer ball and the word "Dios" (God), Tobin said.

The hand gesture pictured in social media, according to Tobin, is the "rock and roll salute." That gesture, known more widely as "the horned hand," became associated with heavy metal in the 1970s (more at Medium), then came into wider use in music culture. The gesture is sometimes interchanged, knowingly or unknowingly, with the ASL sign for "I love you" (literally, the letters I, L, and Y), which is similar but requires an extended thumb.

Tattoos imaged in 2024 Texas DPS presentation include these.
Public document; no indicated copyright notice.

Circulating online, a 2024 presentation by the Texas Department of Public Safety on the Venezuelan gang Tren de Aragua (more from NPR), to which the federal government alleges Reyes Barrios and other deportees belong, depicts tattoos borne by gang members. While some of the tattoos might be indicative of Tren de Aragua—images of trains, for example—most are not so specific, e.g., a rose, a clock, a star.  (More from NBC News.) Tren means "train," and Aragua is a Venezuelan state west of Caracas.

Also among the imaged tattoos are a crown, similar to the Real Madrid CF logo; the Nike "jumpman logo" with Michael Jordan's and LeBron James's number "23"; and the initials "HJ," said to abbreviate hijos (sons), under a crown ("king of kings"), meaning "sons of God." While gang members might bear such tattoos, they're hardly a way to determine gang affiliation.

In fact, of two of my own tattoos, one is a train—not because of criminal affiliation. Another is a variation on a cross that might suggest a football club or a historical war campaign, neither of which I'm championing. So I find this evidence against Reyes Barrios unsettling, especially insofar as it might be exemplary of the government's shallow scrutiny in countless other cases, too. 

I can only assume that when Tobin joined the D.C. Bar, she was admonished as strongly as I was never to lie. So I'm inclined to believe her, and thus to share Judge Boasberg's skepticism.

Update, Mar. 31, at 3 p.m.: Too late for Reyes Barrios and others, but I learned today that on Friday, the federal district court in Massachusetts granted a temporary restraining order against the removal of immigrants to unrelated third countries without due process, that is, notice and "meaningful" opportunity to raise safety concerns. The case is D.V.D. v. U.S. DHS (filed D. Mass. Mar. 25, 2025) (Court Listener).

Friday, March 28, 2025

In negligence claims over child welfare, bus fight, Mass. high court opines on qualified, sovereign immunity

Two immunity cases ended with different outcomes for public officials in the Massachusetts high court on two successive Fridays, and the cases illustrate different theories of immunity.

In a case decided on March 21, social workers with the Massachusetts Department of Children and Families (DCF) asserted qualified immunity in the death and severe injury of two children, each about two years old. The Supreme Judicial Court (SJC) considered the immunity analysis but decided ultimately that, immunity notwithstanding, the workers had not legally caused the harm the children suffered.

In a case decided March 14, the Massachusetts Bay Transportation Authority (MBTA) asserted sovereign immunity in the serious injury of a passenger who was beaten by a bus driver with known anger management issues. The SJC decided that the state agency was not entitled to sovereign immunity as codified by a provision protecting the state from liability for the acts of third parties.

Mass. DCF Worcester West Area Office
From Mass. DCF, purported © 2025
Commonwealth of Massachusetts, asserted fair use.
Qualified Immunity 

However much the state defendants prevailed in the first case, the court's recitation of the facts reveals a deeply disturbing record of irresponsibility on the part of DCF. A woman with four foster children was correctly suspected of having a live-in boyfriend with a record of an open armed robbery charge, three assault and battery charges, and multiple restraining orders. That would be prohibitive of foster placements were the facts confirmed, so DCF planned to monitor the home closely. For unknown reasons, officials dropped the ball, and inspections were too few and too infrequent.

The horrifying 2015 accident that took the life of one child and severely injured another occurred overnight when one of the children reached for "and adjusted the thermostat on an electric heater, which was on the wall above the crib, causing the children's room to overheat," the court wrote. Another child in the room died, and the child who manipulated the thermostat "was found to be in critical condition, suffering from respiratory failure, seizures, hyperthermia (a high temperature), and hypotension (low blood pressure)." The foster parent called 911, and the critically injured child was taken to the hospital. She survived but remains impaired, and her representatives were the plaintiffs in the instant case.

In a civil rights action under federal law, 42 U.S.C. § 1983, DCF officials claimed qualified immunity. The court coherently explained how the doctrine works generally and in this context:

Government officials are entitled to qualified immunity from § 1983 claims for damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known...." Littles v. Commissioner of Correction [Mass. 2005]. The determination of qualified immunity follows a two-part test:

"The first prong asks whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; the second prong asks whether that right was clearly established at the time of the defendant's alleged violation. [T]he second step, in turn, has two aspects. One aspect of the analysis focuses on the clarity of the law .... The other aspect focuses more concretely on the facts of the particular case and whether a reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights" .... Penate v. Sullivan ... (1st Cir. 2023)....

Under the first prong, "'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience'" .... United States v. Salerno [U.S. 1987]. In the foster care context, courts apply one of two standards to determine whether government conduct is conscience-shocking. The first ... is the "deliberate indifference" standard.... Under this standard, a plaintiff must show that a government actor "exhibited deliberate indifference to a known injury, a known risk, or a specific duty." ....

Alternatively, under the second standard, ... a plaintiff must show that a State actor's professional decision constitutes such a "substantial departure from accepted professional judgment, practice, or standards" that the decision was not actually based on such judgment.

The court did not resolve the difference between the two standards, however, because the case was resolved on a different basis. Notwithstanding qualified immunity, a plaintiff in a civil rights case, just like in a state tort case, must prove proximate, or legal causation, and the plaintiffs here could not.

DCF misconduct might have been a scientific cause of the accident. However, the reason DCF was investigating the foster care home was the suspected presence of man, a co-caretaker, with a problematic criminal record. Scientific causation might be proved if the plaintiff could prove that proper DCF investigation would have resulted in the removal of the man from the home. But that flub did not legally cause the accident, the court opined, because the accessibility of the thermostat to the crib and the child's consequent tampering with it had nothing to do with the presence of the man in the home.

The conclusion is sound, though it leaves one to wonder whether there yet has been any reckoning at DCF, or among public officials and legislators if under-resourcing is to blame.

It would not have made any difference here, but, collaterally, it's worth noting that the very existence of qualified immunity as a defense to civil rights actions has been an issue in play in recent years. I explained in 2 Tortz: A Study of American Tort Law (Lulu 2024 rev. ed.):

Of unlikely constitutional compulsion, qualified immunity has come into question in recent years, especially amid high-profile incidents of police violence. Some states and localities have adopted statutes and ordinances limiting or eliminating qualified immunity for police. At the federal level, U.S. Supreme Court Justices Clarence Thomas and Sonia Sotomayor both have criticized qualified immunity. Justice Thomas criticized qualified immunity as unsupported by the text of the Constitution or statute, and Justice Sotomayor criticized the doctrine for failing to punish official misconduct. See N.S. v. Kansas City (U.S. 2023) (Sotomayor, J., dissenting from denial of certiorari); Hoggard v. Rhodes (U.S. 2021) (Thomas, J., respecting denial of certiorari); James v. Bartelt (U.S. 2021) (Sotomayor, J., dissenting from denial of certiorari); Baxter v. Bracey (U.S. 2020) (Thomas, J., dissenting from denial of certiorari). Nevertheless, thus far, the Court has upheld the doctrine. Since the murder of George Floyd by a police officer in Minneapolis in 2020, U.S. Rep. Ayanna Pressley (D-Mass.) and U.S. Sen. Ed Markey (D-Mass.) have persistently but unsuccessfully championed bills to abolish qualified immunity in § 1983 actions.

The first case is Gotay v. Creen (Mass. Mar. 21, 2025) (FindLaw). Justice Serge Georges, Jr. authored the unanimous opinion of six justices.

MBTA bus
Mass. Office of Travel & Tourism via Flickr CC BY-ND 2.0
Sovereign Immunity

A different theory of immunity, state sovereign immunity, animated the case decided a week earlier.

At issue in this second case was the puzzling and unique section 10(j) of the Massachusetts Tort Claims Act (MTCA), which attracts more than its fair share of MTCA appellate litigation in the commonwealth. The case arose from an assault on a passenger by an MBTA bus driver with anger management issues.

Relying on facts as favorable to the plaintiff, the court retold the story of the part-time driver who "sometimes engaged in unsafe driving and, on occasion, interacted with the public and his supervisors in a hostile or insubordinate manner," yet after three years was promoted to full time. The court recounted subsequent altercations with a passenger described as "unruly" and then with a police officer in a disagreement over road obstruction.

The instant case arose when a passenger pursued the bus, rapping on doors, trying to get information about routes. Further recounting the plaintiff's facts, the court wrote:

Lost, cold, and frustrated at the prospect of being stranded, [plaintiff] first questioned why the bus driver had not stopped sooner. The driver responded by yelling at [plaintiff] and leaving his driver's seat to confront [plaintiff] at the door. The driver kicked snow from the bottom of the bus at [plaintiff]. [Plaintiff] uttered a profanity. This further triggered the bus driver's anger; as the driver subsequently described it, he just "lost it." Enraged, the driver lunged at [plaintiff], escalating the encounter. For his part, [plaintiff] retreated, but the driver gave chase. When the driver caught up, the driver commenced punching and kicking [plaintiff]. The beating was so severe that [plaintiff] suffered a traumatic brain injury that has left him "permanently and totally disabled from his usual employment."

The plaintiff sued the MBTA for negligence in hiring, promotion, retention, and supervision. The defendant asserted sovereign immunity as codified in the MTCA.

MTCA section 10(j) is Massachusetts's effort to find the fine line between a tort claim that properly blames public officials for tortious misbehavior and a failure-to-protect claim, when public officials are not responsible for the actions of private third parties. Finding this line is a well known problem in tort claims, federal and state. The Massachusetts test has its own peculiar language, which, the abundance of case law suggests, is not necessarily clarifying. The court here quoted its own earlier assessment that the provision "presents an interpretive quagmire."

Section 10(j) holds public officials immune from "any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer."

The test is especially hairy in cases such as this one, when the alleged negligence is on the part of the state as employer, thus one step removed from the misconduct of a state employee. When does negligence on the part of the state employer constitute the "affirmative act" required to circumnavigate 10(j)?

Here, the court decided:

The claims at issue here are based on the MBTA's own failure to exercise reasonable care in its supervision of the bus driver; as we have explained, "where the supervisory officials allegedly had, or should have had, knowledge of a public employee's assaultive behavior, it is the supervisors' conduct, rather than the employee's intentional conduct, that is the true focus of the case." Dobos v. Driscoll ... [Mass. 1989] (affirming judgment against Commonwealth for negligent supervision and training of officer who assaulted civilian)[; s]ee Doe v. Blandford ... [Mass. 1988] (MTCA permitted claims regarding public employer's negligent conduct in hiring, retaining, and supervising guidance counselor who assaulted student independent of alleged vicarious liability for intentional tort of public employee)....

In sum, [section] 10 (j) does not provide immunity to a public employer for its misfeasance in placing an employee with known but untreated anger management issues that manifest in violent and hostile behaviors in a public-facing position. The record on summary judgment here would support a fact finder's reasonable conclusion that the MBTA's affirmative act—its own decision, through its public employees responsible for supervising the bus driver, to schedule the driver to operate the bus route in Lynn, [Mass.,] without training him to manage his anger—originally caused [plaintiff]'s harm.

The decision feels right as measured against the legislature's determination to distinguish truly third-party causes, that is, risks initiated outside the scope of state responsibility, from causes inextricably tied to state responsibility, such as a state employer's responsibility in direct negligence for its agent's misconduct. And I do think this concept of scope of responsibility, or common duty in the parlance of multiple liabilities, can be used to delineate a workable understanding of "not originally caused."

At the same time, I am not persuaded by the court's reasoning that 10(j) jurisprudence has yet drawn a line much more clear than "I know it when I see it."

The second case is Theisz v. MBTA (Mass. Mar. 14, 2025) (Justia). New Orleans-born Justice Dalila Argaez Wendlandt authored the unanimous opinion of four justices, affirming the Appeals Court.

Thursday, March 27, 2025

Sunshine Fest shines in D.C. despite gloomy climate

Last week I attended Sunshine Fest in Washington, D.C., a conference celebrating the 20th anniversary of Sunshine Week, which recognizes the importance in a free society of the freedom of information (FOI), also known elsewhere in the world as access to information (ATI) or right to information (RTI).

The extraordinary event was a coalition effort with David Cuillier, director of The Freedom of Information Project, Brechner Center for the Advancement of the First Amendment, at the University of Florida, at the helm. The conference met at the recently renovated Johns Hopkins University property on Pennsylvania Avenue—fittingly, the former physical home of the Newseum, which closed in 2019. As the National Freedom of Information Coalition has had annual conferences online since the pandemic, the in-person Sunshine Fest was a welcome opportunity to renew old acquaintances and make new ones.

Yet Sunshine Fest came at an odd time, amid the sudden, deep, and arbitrary cuts to the federal workforce. The Chatham House Rule was in force at the transparency conference. In the run-up to the event, Cuillier in an email to participants acknowledged the irony.

Some persons with official capacities related to the federal Freedom of Information Act (FOIA) participated in the conference, but only in their personal capacities. Certainly there was a sense that FOIA is not something a federal worker can afford to add to the résumé in the present climate. It was a strange feeling to gather with people talking about open government, yet speaking in hushed tones and looking over their shoulders. That has been my experience in many places in the world, but never before in Washington, D.C.

Some recently terminated federal officials attended too, such as Bobby Talebian, who, until recently, was the head of the Office of Information Policy in the Department of Justice. In my experience, Talebian was known for cutting through the bureaucracy. So it's hard to see how his departure facilitates efficiency.

The same might be said of the termination of the Open Government Federal Advisory Committee in the General Services Administration. It's hard to see how shutting down an advisory committee on transparency, which enlists the labor of private volunteers in public work, strikes a blow for efficiency rather than a blow to accountability. (See more at my March 7 post on the FOIA Federal Advisory Committee.)

Sunshine Fest was a success substantively as well as logistically. Speakers from all sectors participated in breakout sessions on artificial intelligence, FOIA and politics, vexatious requests, Trump and populism, privacy and transparency, and FOIA enforcement. Participants included requesters and custodians, industry and journalists, and persons working with FOI at state and federal levels and in legal systems in other countries.

David Cuillier, at lectern, opens Sunshine Fest 2025. The opening
plenary included Alasdair Roberts and Toby Mendel, from left.
RJ Peltz-Steele CC BY-NC-SA 4.0
In an opening session moderated by UMass Amherst Professor Alasdair S. Roberts, who had joined my international law class the day before, Toby Mendel, of the Canadian Centre for Law and Democracy (CLD), formerly with Article 19, gave a concerning report on the state of RTI laws around the world.

In particular, systems in Mexico and India, formerly regarded as exemplary models, have come under attack by populist regimes. The highly regarded independent oversight board in Mexico was terminated the very day of Sunshine Fest, and the Indian system was under "serious attack," Mendel said—though the Narendra Modi administration had to back off somewhat since the last election.

Mendel said that of the 56 U.N. member states that do not have RTI laws, 30 are "extremely weak" democracies, 17 are countries with fewer than one million inhabitants, and nine are "outliers."

Yet Mendel insisted that the glass is half full, or, he said, that is how he chooses to see it. Sri Lanka, he said, now has one of the strongest RTI frameworks in the world. RTI officials there have prevailed in 24 of 25 challenges to their enforcement authority. CLD is working with UNESCO to promote RTI in small island developing states, and Fiji has a proposal on the table in its legislature. Anecdotal evidence indicates "we're on an even keel," Mendel said, despite alarming developments in the United States.

Sunshine Fest announced the creation of a "Sunshine United Network" to marshal information about transparency going forward. Expect Sunshine Week and the Brechner FOI Project to publish further findings and takeaways from Sunshine Fest soon.

UPDATE, Apr. 16, 2025: Plenary panels are now available on the Sunshine Week YouTube channel.