Tag: Second Circuit

Federal expungement case argued in court of appeals

On April 7 a panel of the Court of Appeals for the Second Circuit heard argument in United States v. Jane Doe (Jane Doe I).  At issue in that case is whether U.S. District Judge John Gleeson acted within his authority when he expunged the conviction of a woman he had sentenced some 14 years earlier, based on his finding that her conviction had proved an insurmountable bar to the jobs in home health care for which she was qualified.  Judge Gleeson directed that the government seal the records of Ms.Doe’s conviction, stating that he had sentenced her “to five years of probation supervision, not to a lifetime of unemployment.”  The government appealed, arguing that a federal court has no authority to expunge or seal a conviction record, particularly the record of a valid conviction. Briefs in the case can be viewed here. The panel did not appear persuaded by the government’s argument that the Supreme Court’s 1994 decision in Kokkonen v. Guardian Life, 511 U.S. 375 (1994)(refusing ancillary jurisdiction to enforce state law civil claims), meant that federal courts have no jurisdiction to expunge the record of a federal criminal case.  The import of the government’s argument would be to overrule the Circuit’s leading expungement case from the 1970s, United States v. Schnitzer, 567 F.2d 536 (2d Cir. 1977), which held that federal courts have ancillary jurisdiction to grant expungement on equitable grounds in extraordinary circumstances.  No judge on the panel expressed any support for overruling Schnitzer, and the government seemed reluctant to ask for it.  At the same time, Schnitzer involved expungement of an arrest that the government did not pursue, not a valid conviction.   That distinction seemed to have some appeal for one judge on the panel, who suggested that the holding in Schnitzer might not apply where conviction as opposed to arrest is at issue. The government proposed that a court’s direction to executive agencies to expunge records in their possession might raise separation of powers issues, an argument the panel sidestepped by asking counsel to focus on the court’s authority over its own records.  It also argued that the federal court had intruded into an area already covered by state law, which provides federal offenders some relief from collateral consequences.  However, counsel for Ms. Doe pointed out that she had sought and been denied state relief. On the jurisdictional issue that is central to the case, counsel for Ms. Doe argued that expungement or sealing of records in a criminal case falls within Kokonnen’s exception for matters that are “factually interdependent.”  Having properly exercised jurisdiction over Ms. Doe’s expungement request, the district court could “balance the equities” to conclude that expungement (or, more accurately, sealing) relief was appropriate in the “extreme” circumstances of the case.  While the panel appeared to have some doubts about whether a civil suit for expungement based on post-conviction events is necessarily “factually interdependent” with the criminal case, a holding against Ms. Doe on this issue would appear to require overruling Schnitzer, since it is hard to distinguish an arrest from a conviction on this issue. While it is hard to predict the result in the case, based on the argument it appears that no member of the panel is inclined to overrule Schnitzer, and only one of the three judges suggested that the jurisdictional outcome might be different in Doe because Schnitzer involved a mere arrest.  If the court finds jurisdiction to expunge a conviction, it is unlikely that the decision on the merits will be disturbed. There was no mention of the second Jane Doe case in which Judge Gleeson declined to order expungement and instead issued a “federal certificate of rehabilitation.” Coincidentally, April 7 was the final day for the government to appeal Judge Gleeson’s certificate order, and it came and went with no appeal filed. The New York Law Journal posted a lengthy and thoughtful commentary on the argument that can be accessed here by subscribers.  See Andrew Keshner, Gleeson Expungement in Doe is put to the test at the Circuit, April 8, 2016.       Read more

Publishers not liable for internet posting of “erased” arrest records

When Lorraine Martin and her two sons were arrested in 2010 at their home in Greenwich, Connecticut on drug charges, it was widely reported in the local media.  A year later, when the state decided to drop the charges against her, the record was automatically “erased” and Martin was “deemed to have never been arrested” under Connecticut’s Criminal Records Erasure Statute.  But the contemporaneous news accounts remained available on line, and the publishers refused to remove them. Martin sued in federal court on various tort theories, including libel and invasion of privacy, relying on the “deemer” provision of the Erasure Statute.  The district court ruled that the publishers could not be held liable because the accounts were true when published, and the Erasure Statute “does not purport to change history.”  The Second Circuit affirmed. See Martin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015).   The court of appeals explained that Connecticut’s Erasure Statute was intended to operate in the context of the justice system, to prohibit disclosure by government agencies, to bar reliance on the arrest in any subsequent criminal proceeding, and to permit the person arrested to swear under oath that the arrest never occurred.  However, it was not intended to create any duties on the part of private parties (notably including publishers) or create a cause of cause of action against them. The few enumerated exceptions to the erasure requirements and the statute’s text confirm that the legislature contemplated erasure only in the context of the judicial and law enforcement systems. As the district court reasoned, “nothing in [§ 54-142a] suggests any intent to impose requirements on persons who work outside courts or law enforcement agencies, and nothing suggests any intent to mandate the erasure of records held by such persons.” In short, while the Erasure Statute requires the state to delete or expunge records of an arrest, and confers on the arrested person the “legal status” of a person who has never been arrested, “it does not and cannot undo historical facts or convert once-true facts into falsehoods. . . .  The Moving Finger has written and moved on.” Courts in other states with analogous statutes had reached the same conclusion.  See, e.g., G.D. v. Kenny, 15 A.3d 300, 315–16 (N.J. 2011)(“Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.”); Bahr v. Statesman Journal Co., 624 P.2d 664, 666 (Or. Ct. App. 1981) (“The [expungement] statute does not . . .impose any duty on members of the public who are aware of the conviction to pretend that it does not exist. In other words, the statute authorizes certain persons to misrepresent their own past. It does not make that representation true.”); Rzeznik v. Chief of Police of Southhampton, 373 N.E.2d 1128, 1133 (Mass. 1978) (“There is nothing in the statute or the legislative history to suggest that, once the fact of a conviction is sealed, it becomes nonexistent, and hence untrue for the purposes of the common law of defamation.”). The result in Martin and other similar cases might easily be different under the expansive European law of privacy that produced the “right to be forgotten” holding of the European Court of Justice last May against Google.  Posts on this site by James Jacobs and Elena Larrauri suggest that it would.  The process put in place as a result of the European Court’s decision enables people to remove links to unwanted content from Google’s search results, and it has been applied in a few cases to dated minor criminal records.  The relevance of the Google ruling for American privacy law is discussed in a September 2014 New Yorker article by Jeffrey Toobin, available here, that will be fascinating to American readers and may cause a frisson in the American publishing world.   Read more