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ECBAWM Represents Arizona Voters in Candidacy Challenges Under Fourteenth Amendment’s Insurrectionist Disqualification Clause

ECBAWM attorneys Jonathan S. Abady, O. Andrew F. Wilson, and Nick Bourland, alongside counsel at Free Speech for People and Barton Mendez Soto PLLC, represent a group of Arizona voters in three separate lawsuits challenging the eligibility of Representatives Paul Gosar and Andy Biggs, who are running for reelection to the United States House of Representatives, and Arizona State Representative Mark Finchem, who is running for Arizona Secretary of State, to appear on the 2022 primary election ballot.

The lawsuits, which were filed on April 7, 2022 in the Superior Court of Arizona in Maricopa County, allege that Gosar, Biggs, and Finchem are constitutionally disqualified from public office under Section Three of the Fourteenth Amendment to the United States Constitution, also known as the Disqualification Clause, on the grounds that they helped facilitate the January 6, 2021 insurrection at the United States Capitol.

For more information on the Disqualification Clause lawsuits against Gosar, Biggs, and Finchem, please see Free Speech For People’s April 7, 2022 press release.

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“Legal Effort Expands to Disqualify Republicans as ‘Insurrectionists’,” The New York Times

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Post-Release Supervision Class Action to Proceed to Damages Trial

In Betances v. Fischer, ECBAWM represents a class of over 3000 individuals who were administratively, unilaterally, and unlawfully sentenced to terms of post-release supervision (“PRS”) by New York State corrections and parole officials. The Plaintiff class was certified by the Court in 2015 and the Court subsequently granted summary judgment on liability to Plaintiffs, holding the Defendant State corrections and parole officials personally liable for violating Plaintiffs’ due process rights.

In advance of trial, the Defendant State officials moved to decertify the Plaintiff class on the basis that Plaintiffs’ general damages—which stem from the liberty Plaintiffs lost while on PRS or incarcerated for violating PRS—cannot be determined on a class-wide basis. In a March 14, 2022 decision, United States Magistrate Judge Robert W. Lehrburger denied Defendants’ motion to decertify the class and ruled that “the class should be maintained for the purposes of trial to determine damages for loss of liberty.”

In denying the Defendants’ decertification motion, the Court held that Plaintiffs’ lost liberty “is inherent in any unlawful detention and is compensable as general damages” and “can be determined on a class-wide basis.” The Court further determined that these common injuries “predominate over other, individualized issues” and can therefore be determined on a class basis at trial.

ECBAWM attorneys Matthew D. Brinckerhoff, Nick Bourland, and Max Selver, and law clerk Julian Oppenheimer represent the Betances Plaintiff class.

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ECBAWM Defeats Detroit Police Officers’ Attempt to Avoid Trial in Wrongful Conviction Case

In a December 28, 2021 decision, United States District Judge Paul D. Borman rejected a motion for summary judgment filed by four Detroit Police Department (“DPD”) officers seeking to drastically narrow the scope of a lawsuit brought by Kendrick Scott, an innocent man who was wrongfully convicted of murder and spent nearly two decades in prison as a result of the DPD officers’ egregious misconduct.

The Court ruled that Mr. Scott’s case will proceed against all four DPD officers and held that each of Mr. Scott’s federal civil rights claims must be decided at a jury trial. Specifically, the Court found that, in light of the evidence presented by ECBAWM, a jury must decide whether the DPD officers violated Mr. Scott’s constitutional rights by suppressing exculpatory evidence and forcing witnesses to testify falsely.

“Mr. Scott endured almost 20 years in jail for a crime he did not commit. We look forward to showing all the evidence of this injustice to the jury at trial,” said ECBAWM partner Zoe Salzman.

“The Court’s decision makes clear that police officers who threaten witnesses and suppress exculpatory evidence—and do so without any regard for the rights and liberty of an innocent man—cannot escape liability on a technicality,” said ECBAWM attorney Nick Bourland. “Mr. Scott deserves to present his case to a jury and this victory guarantees that he will have his day in court.”

ECBAWM attorneys Zoe Salzman and Nick Bourland represent Mr. Scott.

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19 ECBAWM Attorneys Named to 2021 Super Lawyers Lists

The firm is pleased to announce that 19 of its attorneys have been named to the 2021 Super Lawyers lists.

Firm partners Richard D. Emery, Andrew G. Celli, Jr., Matthew D. Brinckerhoff, Jonathan S. Abady, Earl S. Ward, Ilann Margalit Maazel, Hal R. Lieberman, Daniel J. Kornstein, O. Andrew F. Wilson, Debra L. Greenberger, and Sam Shapiro were named 2021 Super Lawyers.

Firm partner Zoe Salzman and associates Emma Freeman, David Berman, Scout Katovich, Andrew Jondahl, Nick Bourland, Ananda Burra, and Vivake Prasad were named 2021 Super Lawyers Rising Stars.

The Super Lawyers list is issued by Thompson Reuters. A description of the selection methodology can be found on the Super Lawyers website.

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JJ Velazquez’s Sentence Is Commuted After Fighting for His Freedom for 23 Years

On August 17, 2021, New York Governor Andrew Cuomo commuted the sentence of ECBAWM client Jon-Adrian (“JJ”) Velazquez. Mr. Velazquez has maintained his innocence ever since he was wrongfully convicted in 1998 for a murder he had nothing to do with. Now he has been released from prison and reunited with his family, friends, and supporters.

While incarcerated in the New York correctional system for over 23 years, Mr. Velazquez seized every opportunity to learn, support his peers, and give back—all while fighting for his freedom. He emerged as a leader at the Sing Sing Correctional Facility, where, among other achievements, he earned his college degree with honors, founded a youth program to combat gun violence, organized nonviolence workshops for incarcerated people and their families, and led various fundraising efforts to support his community on the outside.

ECBAWM attorneys Jonathan Abady, Earl Ward, Sam Shapiro, and Nick Bourland represented JJ Velazquez in his clemency efforts.

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Second Circuit: Forensic Examiner Not Entitled to Qualified Immunity

In a significant qualified immunity ruling, the U.S. Court of Appeals for the Second Circuit denied a state ballistics examiner’s motion to dismiss a 42 U.S.C. § 1983 civil rights lawsuit.

ECBAWM client Vernon Horn was incarcerated for over 17 years for a crime he did not commit. His wrongful conviction stemmed from exculpatory evidence that was concealed before and during trial: New Haven Police detectives hid phone records in the basement of a detective’s house because they did not support the case against Horn, and the Connecticut State Police ballistics examiner failed to disclose that he prepared a second ballistics report that falsely implicated Mr. Horn because the original report would have exonerated him.

Following their release from prison in 2018, Mr. Horn and his co-defendant Marquis Jackson brought civil actions against the City of New Haven and certain law enforcement officials for violating their constitutional due process rights under Brady v. Maryland.

The state ballistics examiner, James Stephenson, filed a motion to dismiss the lawsuits against him on the grounds that he is entitled to (a) qualified immunity for failing to turn over exculpatory evidence and (b) absolute immunity for preparing the second false ballistics report because he did so at the prosecutor’s direction. The U.S. District Court for the District of Connecticut denied Stephenson’s motion to dismiss and he appealed to the Second Circuit.

In upholding the lower court’s ruling and denying Stephenson’s motion to dismiss, the Second Circuit wrote that “no reasonable forensic examiner in Stephenson’s position” would have concluded that Brady did not apply. The Court also concluded, “The allegations here are consistent with [Horn’s] theory that Stephenson independently decided to manipulate the margin of error upon learning that the memo … would weaken the state’s case against [Horn].”

Vernon Horn is represented by ECBAWM lawyers Ilann Maazel and Nick Bourland along with co-counsel Doug Lieb and Tamar Birckhead.

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Second Circuit Court Affirms Ruling that Trump Family, Corporation Cannot Compel Arbitration in ACN Fraud Case

On July 28, 2021, the United States Court of Appeals for the Second Circuit affirmed the District Court’s ruling that Donald Trump, his immediate family, and The Trump Corporation cannot compel arbitration of the fraud case pending against them in the Southern District of New York. The case, filed in the fall of 2018, alleges the Trumps defrauded investors into purchasing memberships in a multi-level marketing scheme called ACN. The Trumps had appealed to the Second Circuit arguing that the fraud case could only proceed in private arbitration because of agreements that the investors had signed with ACN. The Second Circuit affirmed the District Court’s denial of the Trumps’ motion to compel arbitration and ruled that the Trumps and ACN were never sufficiently connected such that the investors would have understood that any of their contractual obligations with ACN would correspond to obligations with the Trumps.

“We are glad that the Second Circuit has affirmed Judge Schofield’s well-reasoned opinion. We can now press forward in our fight to obtain justice for our clients and hard-working consumers across the county who fell victim to Donald Trump and his family’s fraud. We look forward to receiving discovery from the Trumps, ACN, and the producers of ‘The Apprentice’ as we move into the next stage of our litigation,” said Andrew G. Celli, Jr., an ECBAWM attorney for the Plaintiff investors.

The investors are represented by ECBAWM attorneys Andrew G. Celli, Jr.Jonathan S. AbadyMatthew D. BrinckerhoffO. Andrew F. WilsonKatherine RosenfeldSam ShapiroDavid Berman, and Nick Bourland.

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ECBAWM Represents Family in their Civil Rights Lawsuit Against Federal Correctional Officers Who Took Jamel Floyd’s Life

On June 3, 2020, Jamel Floyd died at the hands of federal correctional officers at the Federal Bureau of Prisons’ (“BOP”) troubled Brooklyn jail facility, the Metropolitan Detention Center (“MDC Brooklyn”). On behalf of Mr. Floyd’s mother, Donna Mays, and Mr. Floyd’s extended family, Emery Celli Brinckerhoff Abady Ward & Maazel LLP has filed a civil rights lawsuit against the United States and the BOP correctional officers who caused Mr. Floyd’s tragic, untimely death.

Mr. Floyd was housed in solitary confinement at the MDC Brooklyn last June when he began to experience a medical or mental health crisis. Instead of using non-violent measures to assist Mr. Floyd, dozens of BOP correctional officers descended on Mr. Floyd’s cell armed with riot shields and pepper spray. After Mr. Floyd followed the correctional officers’ orders, the officers repeatedly doused Mr. Floyd with pepper spray while he was locked alone in his cell, causing him to immediately collapse and go into cardiac arrest.

When BOP correctional officers opened the cell door, they found Mr. Floyd on the ground, unresponsive and with his heart failing. Not a single BOP correctional officer or staff member attempted to help Mr. Floyd, even though a health technician was present in the unit and every correctional officer on the scene was trained in CPR. Rather, the officers tackled Mr. Floyd and kept him pinned to the ground for several minutes. Even after an officer announced that he could not find Mr. Floyd’s pulse, the officers kept him pinned and then dragged him out of his cell. Finally, the officers strapped Mr. Floyd’s incapacitated body to a restraint chair—a device designed to restrain violent, out-of-control individuals. Mr. Floyd never recovered. He was pronounced dead upon his arrival at a nearby hospital.

Over the past year, Mr. Floyd’s family has joined Brooklyn community organizers and activists in holding demonstrations and vigils outside of the Brooklyn MDC, where they have demanded transparency, accountability, and justice for Mr. Floyd’s death. In response, the BOP has ignored Mr. Floyd’s family and refused to provide them access to his prison medical and administrative records—files the agency later turned over to Mr. Floyd’s family only after ECBAWM filed a Freedom of Information Act lawsuit in federal court in November 2020.

“Jamel Floyd’s death was not an accident, it was the direct result of a group of correctional officers’ decision to respond to Jamel’s distress with brutal force, and then stand idly by while Jamel lay dying,” said Nick Bourland, an ECBAWM attorney representing the plaintiff. “Law enforcement officers—whether they patrol our neighborhoods or the halls of a federal jail facility—must be held accountable for their actions.”

Mr. Floyd’s family, including the plaintiff in this suit, his mother, Donna Mays, are represented by ECBAWM attorneys Katherine Rosenfeld and Nick Bourland.

Press
“Family of inmate who died after being pepper sprayed in Brooklyn federal prison sues,” CNN
“Family of MDC inmate claims jail guards did nothing as he ‘slowly died,’” New York Post
“Family of man who died at Brooklyn jail in June 2020 sues federal lockup,” New York Daily News
“Metropolitan Detention Center corrections officers ignored Hempstead man’s pleas for help, suit alleges,” Newsday (Long Island)
“After His 2020 Death in a New York Jail Cell, Jamel Floyd’s Family File Lawsuit Against Bureau of Prisons,” Time

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ECBAWM Attorneys Reach Settlement in Disability Discrimination Lawsuit Brought Against Developer, Architect, and Interior Designer

ECBAWM attorneys Diane L. Houk and Nick Bourland negotiated a settlement agreement for their client the Fair Housing Justice Center (“FHJC”) to resolve a housing discrimination lawsuit brought against a developer, architect, and interior designer for their alleged failure to design and construct four multifamily apartment buildings in New York City in compliance with accessibility requirements of the Fair Housing Act.

Under the terms of the settlement, the Rabsky Group defendants will retrofit common areas and nearly 500 rental units at the Halo LIC development in Long Island City, Queens, and The Driggs development in Williamsburg, Brooklyn. In addition, the Rabsky Group will build at least 85 new ultra-accessible apartments in accordance with the Uniform Federal Accessibility Standards (“UFAS”) and in addition to any UFAS units the developer is already required to build under federal, state, or local law.  This unique provision guarantees enhanced accessibility at future Rabsky Group developments in New York City.

The settlement also includes $950,000 in damages and attorneys’ fees to FHJC, including $300,000 to the Adele Friedman Housing Accessibility Fund, which provides financial assistance to low and moderate income persons with disabilities seeking to modify their homes to increase physical accessibility.

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Time Magazine Publishes Profile of Jamel Floyd Family

Time magazine has published an in-depth profile of the family of Jamel Floyd in the aftermath of his death. Mr. Floyd died on June 3, 2020 at the Metropolitan Detention Center in Brooklyn, after Federal Bureau of Prisons corrections officers pepper-sprayed him and subjected him to excessive force. ECBAWM partner Katie Rosenfeld and associate Nick Bourland represent Jamel’s family in an investigation into his death.

The complete article by Time reporter Sanya Mansoor is accompanied by a photo essay by Yuki Iwamura of Jamel’s wake, funeral, and internment.

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