“He Took It Like a Man”: Harvey Weinstein’s Conviction and the Limits of Discrimination Law

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent conviction of Harvey Weinstein for criminal sexual assault in the first degree and rape in the third degree. Grossman points out that our country’s antidiscrimination laws do not actually protect the people they intend to protect, instead focusing on employer policies and procedures. She argues that we should take this opportunity to learn from the system of criminal law, which did work in this case, to fix the antidiscrimination laws that purport to protect against sexual harassment and misconduct.

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In re: Orlandi

Docket: 19-8001

Opinion Date: February 28, 2020

Judge: Harrison

Areas of Law: Bankruptcy

In 2005, Studio entered into a commercial lease with LFLP. The debtor signed the lease as Studio's president and signed a separate personal guaranty. In 2008, the debtor filed a Chapter 7 petition, listing LFLP as a creditor; LFLP received notice of the filing and of the discharge. In 2011, the debtor, on behalf of Studio, exercised a five-year lease extension option. Studio vacated the premises before the end of the extended term. LFLP sued in Ohio state court, based on the personal guaranty. The debtor included “Discharge in Bankruptcy” as an affirmative defense. The bankruptcy court reopened the bankruptcy; the debtor filed this adversary proceeding, asserting that the personal guaranty was discharged and that LFLP willfully violated the discharge injunction by filing the state court action. The defendants argued that the lease extension resurrected the personal guaranty and that the original lease and the extension contained a survivability clause that superseded the bankruptcy. The bankruptcy court concluded that the 2008 discharge meant that the debtor was no longer liable under the Guaranty and that filing and continuing the state court action were willful violations of the discharge injunction. The Sixth Circuit Bankruptcy Appellate Panel affirmed in part. A pre-petition personal guaranty is a contingent debt that is discharged in bankruptcy. The court reversed the holding that the defendants willfully violated the discharge injunction and an award of damages in light of the Supreme Court’s 2019 Taggert decision.

United States v. $39,000.00 in U.S. Currency

Docket: 19-3747

Opinion Date: February 28, 2020

Judge: Donald

Areas of Law: Civil Procedure, Constitutional Law

During a screening of Wells’ luggage, TSA officials discovered bundles of U.S. currency totaling $39,000.00. The government filed a forfeiture action. Wells filed a verified claim asserting that he is “the sole and absolute owner of the monies ... unlawfully removed from [his] exclusive possession and control.” Wells filed an answer to the forfeiture complaint, denying the government’s allegations on the grounds “that the answer could very well tend to, or actually, violate Claimant’s Fifth Amendment rights.” Pursuant to the Federal Rules of Civil Procedure’s Supplemental Rules for Admiralty or Maritime Claims and Civil Forfeiture Actions, the government served “special interrogatories” to Wells seeking information testing his assertion of ownership. In response to each interrogatory, Wells stated, “Claimant refuses to answer this interrogatory as he is asserting his Fifth Amendment right against self-incrimination.” The government then moved for summary judgment, citing Wells’ failure to respond to discovery requests aimed at determining the legitimacy of his alleged ownership interests. The district court granted the government summary judgment, finding that Wells failed to establish standing. The Sixth Circuit affirmed. A blanket assertion of the Fifth Amendment privilege does not excuse a claimant’s burden of establishing standing at the summary judgment stage, nor can a claimant use the privilege “to make one’s assertions of ownership impervious to attack.”

Davis v. Gallagher

Docket: 19-1241

Opinion Date: February 28, 2020

Judge: Readler

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Davis, an African American inmate, claims that officer Gallagher called him “Bubba” and “boy.” Davis stated he might file a grievance over Gallagher’s perceived racism. Later that day, Davis encountered Gallagher. According to Davis, Gallagher “searched” Davis and planted heroin in Davis’s pocket and wrote an incident report which falsely alleged that Davis possessed heroin. Davis was placed in administrative segregation and was tested for drug use. The test came back negative. Gallagher’s version is that he saw Davis put something in his pocket, “shook [Davis] down,” and discovered a rock-like substance, which proved to be heroin. Davis claims that Inspector Miller told him that he would be released from segregation only if he revealed who had supplied him with drugs and threatened to make Davis “suffer.” A jury found Davis not guilty of felony heroin possession by a prisoner. Davis filed suit under 42 U.S.C. 1983, alleging an Eighth Amendment violation for being placed in solitary confinement; First Amendment retaliation for threatening to file a grievance; malicious prosecution (Fourth Amendment); and substantive and procedural due process violations. The district court ultimately rejected all of his claims. The Sixth Circuit reversed summary judgment to Gallagher on Davis’s malicious prosecution claim. When there is evidence to support each version of the parties’ dueling allegations, summary judgment is not appropriate—even when the evidence includes self-serving statements from the parties.

Straser v. City of Athens

Docket: 19-5689

Opinion Date: February 28, 2020

Judge: Jeffrey S. Sutton

Areas of Law: Civil Rights, Constitutional Law, Real Estate & Property Law, Zoning, Planning & Land Use

Straser built a carport in 2009, about 17 feet from the road. The zoning ordinance requires carports to be 30 feet from the road. The city notified Straser four times that his carport violated the rule. In 2016, the city cited Straser’s neighbor for violating the setback rule. The neighbor accused the city of targeting him for enforcement based on his race and Muslim religion. In 2017, the city cited Straser for his carport. City Attorney Trew stated that the city would enforce the rule, having “had trouble with a Muslim” who complained about a similar violation. Straser claimed he was fined because he is a Christian and the city did not want to favor him over his Muslim neighbor. The district court granted the defendants summary judgment. The Sixth Circuit affirmed. A government that enforces its laws equally against those of different faiths honors the neutrality imperative of the Fourteenth Amendment. Straser did not identify any cases in which the city refused to enforce the 30-foot rule against non-Christians nor did he show discriminatory purpose and effect. Straser’s own account of the conversation showed that Trew was committed to even-handed enforcement. Straser has no evidence that Trew knew of Straser’s religious beliefs.