Results
achieved in this firm’s recent cases include:
VICTORY FOR THE "HOMELESS
ON THE STEPS"
Jonathan Robert Nelson was lead counsel in Fifth Avenue Presbyterian
Church v. City of New York. In 2006, the U.S. Court of Appeals for the Second Circuit upheld a grant of summary judgment by U.S. District Judge Lawrence McKenna, who found that the City of New York had violated the church's rights by sweeping homeless people from the church's steps.
In October, 2006, the Supreme Court dismissed the City’s petition for certiorari seeking to reverse that
decision, bringing the five-year old case to a victorious end for the Church and other plaintiffs.
In
December, 2001, the Fifth Avenue Presbyterian Church sued the City of New York to stop the police from rousting homeless people who were sleeping outside at night on
church property. In the late 1990's, after years of experience in running a formal homeless shelter inside its building, the
Church also adopted a formal policy of hospitality toward the "street homeless" who were sleeping outside on its
property. The church made its bathrooms available to them at the beginning and end of each night, set rules, organized a daily
disposal routine for cardboard sleeping boxes, and provided a wake-up call and coffee for the sleepers each morning. Through
staff members and volunteers, the Church also began to learn the names and histories of its homeless neighbors, to befriend
them, and to intercede for them, so they could obtain benefits, reconcile with families and friends, and find a way "off
the streets." The City cooperated with the Church's hospitality policy from 1999 through 2001, and in 1999 the police commissioner told the New York Times that he acknowledged the Church's right
to let people sleep on its property.
However, in the month before Christmas, 2001, the administration
of Mayor Giuliani decided that its "zero tolerance" policy meant that churches could not be permitted to allow rough
sleepers on their property. Over the course of several nights in early December, the police came in force to the Church in
the middle of the night, banged on cardboard boxes with night sticks, and told the homeless sleepers to leave, or be arrested
for disturbing the peace. Mayor Giuliani’s successor, Mayor Michael Bloomberg, continued to defend his predecessor’s
policy.
This office filed suit against the City in collaboration with the New York Civil Liberties Union and Katherine Pringle, a partner in the law firm of Friedman, Kaplan, Seiler & Adelman, and obtained a preliminary injunction. This firm then collaborated with Ms. Pringle and another lawyer, Kenneth E. Lee, in conducting discovery and preparing summary judgment papers, resulting in a permanent injunction from Judge McKenna in October, 2004. On appeal of the preliminary and permanent injunctions, the Church was represented by Carter G. Phillips, Edward R. McNicholas and others from Sidley Austin’s Washington, DC office, with continued input from this office and the other lawyers.
The
Fifth Avenue case raised issues of basic importance under the First Amendment. The City attempted to use common law "nuisance"
principles, sidewalk regulations, city charter police power provisions, and arguments about the proper scope of religious
action, to stop part of the Church’s ministry to homeless neighbors. Despite its positive outcome, the case showed that
tension and conflict continue over the proper role of religion in issues of social welfare – and that the courts still
have an important role to play in the preservation of religious freedom.
(For the text of the
relevant decisions, and samples of press comment on the case, click For the Record. Mr. Nelson is a member of the Fifth Avenue Presbyterian Church. This web page reflects his personal views
only.)
JUSTICE FOR A WIDOW
This office negotiated
a final resolution to a protracted accounting malpractice litigation brought on behalf of the estate and widow of a prominent
scholar, resulting in a structured settlement which was recently completed. In achieving a satisfying result, this office
overcame technical problems of proof caused by the scholar’s untimely death and defeated a defense motion for summary
judgment.
AIR AMBULANCE PLAINTIFF LANDS IN WRONG COURT
In
mid-2005, this office defended an out-of-state air ambulance company against a federal lawsuit that was filed in the wrong
court. An unhappy customer filed suit in the District of New Jersey, even though the air ambulance never landed there and
the carrier conducted no operations in New Jersey. Our motion to change venue sent the case flying off into friendlier
skies, where the matter quickly settled.
BEST EFFORTS FALL SHORT IN CRIMINAL COURT
Although this office rarely appears in criminal court, we filed a lengthy and strongly-supported motion to reopen
a guilty plea in a Kings County (NY) criminal court in early 2006. Our client, a recovering heroin addict, had accepted a
plea deal that was negotiated in court on the very day on which she had begun to take powerful detoxification medications
that, we argued, had significantly impaired her judgment and other mental processes. Although the decision denying our motion
had flaws, the unusual posture of the case – in which an appeal would have caused our client to remain longer in prison
– forced us to accept the loss. (We did not represent this client in earlier stages of the case.)
AMICUS BRIEF BRINGS BIG RESULTS
This office submitted an amicus curiae brief to the U.S. Court of Appeals for the Fifth Circuit in support of a motion to rehear the court’s decision in Li v. Gonzales, 420 F.3d 500 (2005). The brief argued that the court’s decision flouted Congress’s intent under the International Religious Freedom Act by denying asylum to a Christian who was persecuted by the Chinese Government for engaging in a forbidden
religious practice – namely, worshiping in a house church. We were honored to represent the Christian Legal Society, the American Immigration Lawyers Association, the National Association of Evangelicals, and the Ethics and Religious Liberty Commission on the brief. The Fifth Circuit vacated its decision after receiving the amicus briefs. For more information
about the case, see Jonathan R. Nelson, "Shaking the Pillars: An Asylum Applicant Shakes Loose Some Unusual Relief," 83 Interpreter Releases 1 (January 3, 2006).
APPELLATE VICTORIES IN ASYLUM
CASES
2006 saw the following results in asylum appeals handled by this office:
* The Board of Immigration Appeals granted a motion filed by one of our Ukrainian Baptist clients to reconsider his case, and sent
the case back to the Immigration Judge. The BIA found that the Immigration Judge had failed to give the asylum applicant an
opportunity to explain the contradictions he perceived in his testimony, and that the applicant’s first appellate lawyer
had deprived him of his right to appeal by filing a negligent brief. (We did not represent this client in earlier stages of
the case.)
* The US Court of Appeals for the Second Circuit sent a Yugoslavian client’s
case back to the Immigration Judge, on a stipulation of counsel, for further fact-finding and briefing, based on significant
changes in the structure of the country and on the BIA’s failure to consider newly-developed evidence that our client
had filed his asylum application within one year of his arrival in the US. (We did not represent this client at trial or in
his initial appeal to the Board.)
* Following a remand from the BIA, a Russian client of this
office left the United States on a grant of voluntary departure to begin a new life in Canada; and received a ten-year visa
that allowed her to return to the US as a visitor. The BIA decision granted our motion to reconsider the denial of her asylum
claims, based on changed country conditions, ineffective assistance of counsel and numerous errors of the Immigration Judge.
Our motion was supported by an amicus brief filed by Amnesty International USA, the Minnesota Advocates for Human Rights, and the Center for Gender and Refugee Studies. (We did not represent this client in earlier stages of the case.)
* Another Ukrainian
Baptist’s case went back before the Immigration Judge following a remand from the Second Circuit Court of Appeals. The
government stipulated to a remand when confronted, in our appellate brief, by the Immigration Judge’s obvious errors
in deciding our client’s case. A new decision is expected to come in 2007. (We did not represent this client at trial
or in her initial appeal to the Board.)
In addition, a family of Pakistani Christians who feared
persecution based on their conversion from Islam were granted asylum in December, 2005 after this office prepared their asylum
application and supporting papers, and then filed a motion to change venue when their case was assigned to a notorious Immigration
Judge whose asylum denial rate of 98% was among the highest in the country. (This office did not represent the clients following
their change of venue.)
(More recent updates are "on the way" - please check back
again soon!)
