Grubbs v. Brown

18-670-pr

Grubbs v. Brown

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the

3rd day of December, two thousand eighteen.

Present: ROSEMARY S. POOLER,

RAYMOND J. LOHIER, JR.,

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________________________

CORALYN GRUBBS, LOUIS SMITH, ALI RIVERA, SEAN MILLER, individually and on

behalf of all other persons similarly situated,

Plaintiffs-Appellants,

v. 18-670-pr

JAMES P. O’NEILL,1 in his official capacity as Police Commissioner of the City of New York,

NEW YORK CITY POLICE DEPARTMENT, CYNTHIA BRANN,2 in her official capacity as

Acting Commissioner of Correction of the City of New York, NEW YORK CITY

DEPARTMENT OF CORRECTION, BILL DE BLASIO,3 in his official capacity as Mayor of

the City of New York, CITY OF NEW YORK,

1

James P. O’Neill is automatically substituted as a Defendant-Appellee in this case pursuant to

Federal Rule of Appellate Procedure 43(c)(2).

2

Cynthia Brann is automatically substituted as a Defendant-Appellee in this case pursuant to

Federal Rule of Appellate Procedure 43(c)(2). Brann is the Commissioner of Correction of the

City of New York, rather than the Acting Commissioner.

3

Bill de Blasio is automatically substituted as a Defendant-Appellee in this case pursuant to

Federal Rule of Appellate Procedure 43(c)(2).

Defendants-Appellees.4

_____________________________________________________

Appearing for Appellants: Colin T. West, White & Case LLP (Gregory M. Starner, White &

Case LLP, William D. Gibney, The Legal Aid Society, on the

brief), New York, N.Y.

Appearing for Appellees: Jonathan Popolow, Of Counsel (Richard Dearing, Claude S.

Platton, on the brief) for Zachary W. Carter, Corporation Counsel

of the City of New York, New York, N.Y.

Amici Curiae New York Shannon M. Leitner, Freshfields Bruckhaus Deringer US LLP

State Defenders Association, (Stephen Pearson, Linda H. Martin, Brent Wible, on the brief),

New York State Association New York, N.Y.

of Criminal Defense Lawyers,

National Association for

Public Defense, National

Association of Criminal

Defense Lawyers, The Bronx

Defenders, Brooklyn Defender

Services, and New York

Criminal Bar Association in

support of Appellants:

Appeal from a judgment of the United States District Court for the Southern District of New

York (Daniels, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order of said District Court be and it hereby is VACATED AND

REMANDED.

Plaintiffs-Appellants Coralyn Grubbs, Louis Smith, Ali Rivera, Sean Miller, individually

and on behalf of all other persons similarly situated, appeal from the February 26, 2018, order of

the United States District Court for the Southern District of New York (Daniels, J.) (1) issuing a

declaratory judgment that Defendants-Appellees’ (“the City’s”) use of surveillance with masking

technology in attorney–client booths did not violate the Sixth Amendment or the parties’ 1999

settlement agreement (“1999 Settlement Agreement”), (2) dissolving a preliminary injunction

and temporary restraining order that prohibited the City from turning on the cameras in question

and thereby denying Plaintiffs-Appellants’ request for removal of the surveillance cameras, and

(3) denying Plaintiffs-Appellants’ motion to hold the City in contempt of the court’s orders

preliminarily enjoining the City from using video surveillance. We assume the parties’

familiarity with the underlying facts, procedural history, and specification of issues for review.

4

The Clerk of Court is directed to amend the caption as above, including the above-noted

substitutions.

2

Plaintiffs-Appellants initiated this lawsuit in 1992, challenging a litany of

unconstitutional practices in the New York City jails. Relevant here, the suit alleged that the

criminal courthouse in Richmond County lacked private space for attorneys to consult with pre-

arraignment detainees, violating the detainees’ Sixth Amendment right to counsel. In 1999, the

district court denied Plaintiffs-Appellants’ motion for partial summary judgment on these claims.

Grubbs v. Safir, No. 92 Civ. 2132 (DC), 1999 WL 20855, at *1 (S.D.N.Y. Jan. 15, 1999)

(“Grubbs I”). Nonetheless, the court determined that the City had violated pre-arraignment

detainees’ right to counsel by failing to provide a private space for attorney–client consultation.

Id. at *7. The court withheld summary judgment solely to consider further legal and factual

issues when composing the correct remedy for the violation. Id. Shortly after the district court’s

opinion, the parties settled the dispute. The 1999 Settlement Agreement provided: “The City

shall use its best efforts to construct or install, by August 31, 1999, an interview booth for pre-

arraignment detainees to consult privately with counsel in the courthouse at 67 Targee Street,

Staten Island, New York.” Stipulation of Settlement Agreement at 10, Grubbs v. Safir, No. 92

Civ. 2132 (DC) (S.D.N.Y. Sept. 30, 1999), ECF No. 62.

The settlement was abided until 2010, when the City constructed a new courthouse in

Staten Island, the Richmond County Criminal Courthouse (“RCCC”). The new RCCC building

had separate booths in which attorneys and clients could consult, but because guards could not

monitor the booths without obstructed sightlines from their posts, the City claims that it needed

to install surveillance cameras in the booths in order to prevent security incidents and respond to

emergencies. Plaintiffs-Appellants objected to the installation of these cameras, ultimately

procuring injunctive relief that prevented the City from operating the cameras. While the parties

attempted to negotiate a more permanent resolution, the City experimented with “masking”

technology that obscured portions of the image captured from attorney–client booths. The

“masking technology” was designed to prevent the City from viewing a detainee while she met

with her attorney. The cameras did not capture images of the attorney side of the booth and had

the audio function disabled. Plaintiffs-Appellants, however, disagreed that using the masking

technology preserved their right to counsel. They subsequently moved the district court for an

order to remove the surveillance cameras and later to find the City in contempt of the court’s

injunctive orders. Shortly thereafter, the City moved for a declaratory judgment that the

surveillance plan incorporating masking technology was legally sufficient under the Sixth

Amendment and the 1999 Settlement Agreement. The district court granted the City’s motion

and denied Plaintiffs-Appellants’ motion. Grubbs v. Safir, No. 92 Civ. 2132 (GBD), 2018 WL

1225262, at *10 (S.D.N.Y. Feb. 26, 2018) (“Grubbs II”).

On appeal, Plaintiffs-Appellants argue, among other things, that surveillance via cameras

with masking technology violates the 1999 Settlement Agreement between the parties. As

relevant here, the 1999 Settlement Agreement was reached in part to remedy the City’s violation

of Plaintiffs-Appellants’ Sixth Amendment right to counsel.

We interpret settlement agreements according to general principles of contract law. Red

Ball Interior Demolition Corp. v. Palmadessa, 173 F.3d 481, 484 (2d Cir. 1999). We review a

district court’s interpretation of a contract de novo. U.S. Fid. & Guar. Co. v. Braspetro Oil Servs.

Co., 369 F.3d 34, 74 (2d Cir. 2004). To interpret the relevant provisions of the agreement, we

“may look to certain aids, such as the circumstances surrounding a settlement agreement’s

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formation, when construing it for enforcement purposes.” Huertas v. E. River Hous. Corp., 992

F.2d 1263, 1267 (2d Cir. 1993). It is thus appropriate for us to consider the underlying Sixth

Amendment violation motivating the 1999 Settlement Agreement to determine whether the City

has provided a space to “consult privately.” That is, under the 1999 Settlement Agreement, the

City’s surveillance with cameras using masking technology must be consistent with Plaintiffs-

Appellants’ Sixth Amendment right to counsel.

Here, the district court found that the settlement agreement did not expressly exclude the

use of surveillance cameras employing masking technology in attorney–client booths and

therefore the surveillance plan comported with the settlement. While we agree with the district

court that the 1999 Settlement Agreement does not expressly prohibit surveillance, we find that

the district court did not engage in the proper balancing analysis when it concluded that the

City’s use of masked surveillance technology comports with the settlement’s requirement that

the City provide a space where detainees can “consult privately” with their attorneys. Stipulation

of Settlement Agreement at 10, ECF No. 62.

To evaluate whether an institutional restriction on the Sixth Amendment rights of

individuals in custody is valid, we employ a balancing test to determine if the restriction

“unreasonably burden[s]” an individual in custody’s “opportunity to consult with his attorney

and to prepare his defense.” Benjamin v. Fraser, 264 F.3d 175, 187 (2d Cir. 2001) (internal

quotation marks omitted) (quoting Wolfish v. Levi, 573 F.2d 118, 133 (2d Cir. 1978)); see also

Bell v. Wolfish, 441 U.S. 520, 546 (1979) (“There must be a mutual accommodation between

institutional needs and objectives and the provisions of the Constitution that are of general

application.” (internal quotation marks omitted)). Thus, it was the district court’s duty to balance

the alleged burden the surveillance imposed on Plaintiffs-Appellants’ Sixth Amendment rights

on the one hand with the City’s proffered institutional reasons for the surveillance on the other.

The district court engaged in this balancing inquiry when analyzing the surveillance

system under the Sixth Amendment, but it misunderstood important Sixth Amendment

jurisprudence concerning conduct that chills a detainee’s communications with counsel.

Specifically, the district court erroneously concluded that a detainee’s “subjective impression or

belief” that her conversation was being recorded and monitored did not constitute a cognizable

burden on the Sixth Amendment.5 Grubbs II, 2018 WL 1225262, at *8. The district court did not

appropriately consider the chilling effect that the cameras’ presence in the attorney–client booths

could have on pre-arraignment detainees’ willingness to communicate candidly with their

attorneys. See Wolff v. McDonnell, 418 U.S. 539, 577 (1974) (considering the chilling effect on

the Sixth Amendment right to counsel of a prison’s mail-handling policy where the subjective

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There is further reason to believe that the chilling effect of video surveillance on pre-

arraignment detainees should be given ample consideration under the 1999 Settlement

Agreement. In the opinion that informed settlement negotiations, the district court concluded that

a lack of private consultation space would inhibit detainees “from speaking openly and freely” to

counsel, thus rendering the right to counsel “meaningless.” Grubbs I, 1999 WL 20855, at *7. The

district court’s opinion thus informs the meaning of “consult privately” as used in the 1999

Settlement Agreement by incorporating the substantive right to counsel. To be able to “consult

privately” therefore means that pretrial detainees at RCCC should be able to speak “openly and

freely” with counsel.

4

beliefs of inmates that their private attorney–client communications were being read could chill

the right to counsel); see also Stover v. Carlson, 413 F. Supp. 718, 721 (D. Conn. 1976) (finding

that an inmate’s “Sixth Amendment right of access to the courts is ‘chilled’” by prison officials’

practice of opening mail from counsel outside inmates’ presence, even absent any evidence that

officials were actually reading the mail).

For this reason, the possibility that a pre-arraignment detainee could believe that the City

is monitoring their communications and the consequent chilling effect of that belief must be

considered in evaluating the alleged Sixth Amendment violation in this case. The City counters

that there are notices displayed in the attorney–client booths warning detainees that the cameras

do not capture sound, record only visual information, operate for security purposes, and that

detainees should remain seated in a demarcated area. This solution does not necessarily cure

chilling concerns.

The district court was obligated to weigh any chilling effect of the surveillance cameras

against the City’s security interests to determine whether the video surveillance with masking

technology violates the Sixth Amendment. But it failed to consider any chilling effect when it

balanced the burden the surveillance imposes on Plaintiffs-Appellants’ right to counsel with the

City’s institutional justifications. Grubbs II, 2018 WL 1225262, at *8. We thus remand so that

the district court can balance the chilling effect of surveillance on Plaintiffs-Appellants’ Sixth

Amendment right to counsel and interpret the 1999 Settlement Agreement in light of the

appropriately weighted balance.

We reject Plaintiffs-Appellants’ argument that the City erred in denying their contempt

motion.” FTC v. BlueHippo Funding, LLC, 762 F.3d 238, 243 (2d Cir. 2014) (finding civil

contempt is a wholly remedial measure intended to “coerce future compliance or to remedy any

harm caused by noncompliance” (internal quotation marks omitted)).

We have considered the remainder of the arguments from Coralyn Grubbs, Louis Smith,

Ali Rivera, and Sean Miller on behalf of themselves and all other persons similarly situated and

from the City and find them to be without merit. Accordingly, the order of the district court

hereby is VACATED AND REMANDED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

5