Robert Warner v. Orange County Department of Probation

115 F.3d 1068, 1997 U.S. App. LEXIS 11710, 1997 WL 321553

• Court: Court of Appeals for the Second Circuit
• Decided: May 14, 1997
• Docket: 1760, Docket 95-7055
• Status: Published

Opinions

LEVAL, Circuit Judge:

Orange County Department of Probation (“OCDP”), the defendant, appeals from a decision of the district court awarding declaratory judgment, nominal damages of one dollar, and attorney’s fees to plaintiff Robert Warner in his civil action under 42 U.S.C. § 1983. Warner claimed that a probation condition imposed on him as part of a criminal sentence, which required him to attend meetings of Alcoholics Anonymous (“A.A.”), forced him to participate in religious activity in violation of the First Amendment’s Establishment Clause, and that OCDP was responsible, in part because it recommended the A.A therapy to the sentencing court as a condition of probation. OCDP contends it cannot be liable for Warner’s exposure to A.A. pursuant to a sentence imposed by the court. We reject OCDP’s arguments, and affirm the judgment.

Background

On November 13, 1990, Warner pleaded guilty to driving drunk and without a license in violation of New York law. N.Y. Veh. & Traf. Law §§ 511(2), 1192(l)(McKinney 1986 & Supp.1996). This was his third alcohol-related driving offense in a period of little more than a year. Judge David L. Levinson, of the Town of Woodbury’s Justice Court in Orange County, New York, accepted the plea and ordered the Orange County Department of Probation to prepare a presentence report.

The OCDP’s report recommended a term of probation with six special conditions, which the department routinely recommends in cases of defendants with alcohol problems. These included that the probationer “totally abstain from the use of intoxicating beverages,” avoid “establishments] where the primary business is the sale or consumption of alcohol,” and, as the fifth condition, that he “attend Alcoholics Anonymous at the direction of [his] probation officer.”

These recommended special conditions were set forth on a standard form rider which OCDP routinely provided to sentencing judges in such cases. Judge Levinson sentenced Warner to three years of probation, imposing the special conditions recommended by the OCDP. In imposing these special conditions, Judge Levinson endorsed the Probation Department’s standard form.

Warner attended A.A. meetings at the direction of his probation officer, Neal Terwilli-ger, from November 1990 through September 1992. However, in January of 1991, Warner complained to Terwilliger that, as an atheist, he found the religious nature of the A.A. meetings objectionable. The probation officer instructed Warner to continue his attendance. Some months later, Terwilliger determined that Warner lacked sufficient commitment to the program; he directed Warner to attend “Step meetings” and to seek another more advanced A.A. member as a “sponsor” to give him guidance and encourage his adherence to the program. The Step meetings were devoted to discussion of A.A.’s “Twelve Steps,” which represented the heart of the therapy program.

The district court found that the program Warner was required to attend involved a substantial religious component. For example, the “Twelve Steps” included instruction that participants should “believe that a Power greater than ourselves could restore us”; “[make] a decision to turn our will and our lives over to the care of God as we [understand] Him ”; “[a]dmit[ ] to God ... the exact nature of our wrongs”; be “entirely ready to have God remove all these defects ... [and] ask Him to remove our shortcomings”; and “[seek] through prayer and meditation to improve our conscious contact with God, as we [understand] Him.”

Group prayer was a common occurrence at the meetings Warner attended. They frequently began with a religious invocation, and always ended with a Christian prayer. The district court found that the program “placed a heavy emphasis on spirituality and prayer, in both conception and in practice.”

In July of 1992, Warner filed a motion in the Town of Woodbury Justice Court challenging the constitutionality of his consignment to A.A. The OCDP — after meeting with representatives from the local district attorney’s office — responded that it could offer Warner therapy in another program. The municipal court judge then directed that nonreligious alternatives be made available and dismissed Warner’s motion as moot. Warner subsequently brought this action in federal district court, seeking damages, as well as a declaratory judgment that OCDP had violated his First Amendment rights. After a bench trial, the district court found that compelling Warner to attend the program violated the Establishment Clause, and further determined that the OCDP was liable for the constitutional injury, notwithstanding that it was the sentencing judge — not the Probation Department — who had imposed the condition of A.A. participation. The court, however, found that Warner’s claims of financially compensable injury were not convincing, and thus awarded nominal damages in the amount of one dollar, plus attorney’s fees.

Discussion

OCDP asserts that the trial court committed a variety of errors. First, it claims that it cannot be liable because, under New York law, the determination of probation conditions is solely the responsibility of the sentencing judge. Second, it contests the district court’s conclusion that requiring Warner to attend A.A. violated the Establishment Clause.¹ We disagree.

I. OCDP’s Responsibility for the Sentence

To establish OCDP’s liability for his sentence under 42 U.S.C. § 1983, Warner must first demonstrate that his injury resulted from a custom or policy of Orange County, as opposed to an isolated instance of conduct. Monell v. Department of Social Servs., 436 U.S. 668, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 162-67, 90 S.Ct. 1598, 1611-13, 26 L.Ed.2d 142 (1970)(describing congressional intent in creating liability for custom or practice). The OCDP’s recommendation that Warner be required to participate in A.A. therapy was unquestionably made pursuant to a general policy. This was one of six standard special conditions set forth on a form captioned “Additional Conditions of Probation Pertaining to Alcohol,” which OCDP routinely submitted to sentencing judges in alcohol cases.

OCDP argues that it is nonetheless not legally responsible because it was the judge’s sentencing decision, not the Probation Department’s recommendation, that caused the harm. The County is certainly correct that in eases brought under § 1983 a superseding cause, as traditionally understood in common law tort doctrine, will relieve a defendant of liability. Jeffries v. Harleston, 52 F.3d 9, 14 (2d Cir.), cert. denied, — U.S. -, 116 S.Ct. 173, 133 L.Ed.2d 114 (1995); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir.1989); Wagenmann v. Adams, 829 F.2d 196, 212 (1st Cir.1987). “[T]he Supreme Court has made it crystal clear that principles of causation borrowed from tort law are relevant to civil rights actions brought under section 1983.” Buenrostro v. Collazo, 973 F.2d 39, 45 (1st Cir.1992); see Malley v. Briggs, 475 U.S. 335, 344 n. 7, 106 S.Ct. 1092, 1098 n. 7, 89 L.Ed.2d 271 (1986); Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961).

However, tort defendants, including those sued under § 1983, are ‘“responsible for the natural consequences of [their] actions.’” Malley, 475 U.S. at 344 n. 7, 106 S.Ct. at 1098 n. 7 (quoting Monroe, 365 U.S. at 187, 81 S.Ct. at 484). As the First Circuit has explained, an actor may be held liable for “those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties.” Gutierrez-Rodriguez, 882 F.2d at 561 (citations omitted).²

A complex chain of events led to Warner’s participation in religious exercises at the A.A. meetings. Two candidates present themselves as possible superseding causes of his injury that might reheve OCDP of liability: First, as the County argues, the judge’s sentencing determination; second, the actions of the A.A. chapter that Warner attended.

A. Act of the Sentencing Judge

As the OCDP correctly points out, under New York law the determination of probation terms is a judicial task, which may not be delegated to probation officers. People ex. rel. Perry v. Cassidy, 23 A.D.2d 706, 257 N.Y.S.2d 228, 229 (1965); see also People v. Fuller, 57 N.Y.2d 152, 455 N.Y.S.2d 253, 256, 441 N.E.2d 563 (1982)(sentencing court must independently decide how much of probation department report to adopt). The probation department therefore argues that its role was purely advisory, and cannot have been the proximate cause of Warner’s injury.

The Supreme Court, however, in Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), rejected a similar argument. Malley was a civil rights action under § 1988 against a state trooper who had procured a warrant for the plaintiffs arrest by submitting an affidavit. Plaintiff claimed the affidavit was legally insufficient. The district court had dismissed the case, believing the police officer to be absolutely immune when swearing out a warrant. The Court of Appeals reversed, resuscitating the action. The officer argued in the Supreme Court not only that he was immune, but also that he was shielded from responsibility by his entitlement to rely on the judgment of the judicial officer in finding probable cause and issuing the warrant. The Supreme Court ruled that such reliance was not justified if “a reasonably well-trained officer in [the same] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.” Id. at 345, 106 S.Ct. at 1098. If such was the case, the officer’s application for a warrant was not objectively reasonable, because it risked an unnecessary danger of unlawful arrest. “It is true,” the Court observed,

that in an ideal system an unreasonable request for a warrant would be harmless, because no judge would approve it. But ours is not an ideal system, and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should. We find it reasonable to require the officer applying for the warrant to minimize this damage by exercising reasonable professional judgment.

Id. Commenting on the claim that the judge’s decision to issue the warrant broke the “causal chain” between the application and the wrongful arrest, the Court noted that such an argument was “inconsistent with our interpretation of § 1983,” which makes defendants “ ‘responsible for the natural consequences of [their] actions.’ ” Id. at 344 n. 7, 106 S.Ct. at 1098 n. 7 (quoting Monroe, 365 U.S. at 187, 81 S.Ct. at 484); see also Gutierrez-Rodriguez, 882 F.2d at 561 (defendants in § 1983 cases liable for consequences caused by “reasonably foreseeable intervening forces”).

The circumstances in Malley were more favorable than those here to the argument of exoneration by reason of the intervening decision of the judge. That is because a police officer applying for an arrest warrant appears in a partisan role. The magistrate to whom the application is addressed is automatically on notice that the application comes from an interested party and therefore knows that scrutiny is warranted. The probation officer, on the other hand, is not a partisan advocate aligned with either the prosecution or the defendant. He is a neutral adviser to the court.³ Schiff v. Dorsey, 877 F.Supp. 73, 77 & n. 1 (D.Conn. 1994) (describing analogous role of federal probation officer; “the sentencing judge’s need for complete and accurate information about an offender requires that he enjoy a relationship of the utmost trust and confidentiality with the federal probation officer”); see also Sharon Bunzel, Note, The Probation Officer and the Federal Sentencing Guidelines: Strange Philosophical Bedfellows, 105 , 945 (1995) (describing historical role of probation officer as “neutral information gatherer with loyalties to no one but the court”). The district court noted a high likelihood of court adoption of such recommendations by the probation department.

Given the neutral advisory role of the probation officer toward the court, it is an entirely “natural consequenee[ ],” Malley, 475 U.S. at 344 n. 7, 106 S.Ct. at 1098 n. 7, for a judge to adopt the OCDP’s recommendations as to a therapy provider without making an independent investigation of the qualifications and procedures of the recommended provider. Such action by a judge is neither “abnormal” nor “unforeseen.” Gutierrez-Rodriguez, 882 F.2d at 561.

Court adoption of the probation officer’s recommendation is particularly likely when the recommendation deals with a provider of therapy. Judges are unlikely to possess particularized information about the relative characteristics and merits of different providers of therapy. For this type of information, courts generally rely heavily on probation department recommendations.⁴

Whether it was reasonably foreseeable that the sentencing judge would adopt the OCDP’s recommendation that Warner attend A.A. is a question of fact. See Springer, 821 F.2d at 876; Restatement (Second) of Torts § 453 cmt. b (1965). The district judge found a high likelihood that a judge would follow such a recommendation of the probation department. We review this determination for clear error, and find none. Fed. R.Civ.P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 1510-11, 84 L.Ed.2d 518 (1985).

Finally, the dissent argues that, because Warner — following the advice of his attorney — sampled the A.A. sessions prior to sentence and made no objection to their religious content at the time of sentence, the probation department’s recommendation was not a proximate cause of the injury. The dissent argues also that Warner’s conduct constituted consent. We are not persuaded by either argument.

In the first place, both arguments turn on a factual question. Any ruling that Warner consented to the religious conditions of his probation, or knowingly declined to object to them, must depend on a factual finding that Warner, in his few sessions at A.A. prior to sentencing, had learned the nature and extent of the religious content of the program. If Warner was unaware of that content or the extent of its presence in the treatment, he cannot be expected to have objected or appealed on that basis. There was no finding by the district judge, however, that Warner did have such knowledge, and the record provides scant evidence upon which such a finding could have been based.

There was very little effort by the County at trial to explore Warner’s awareness before sentence of the religious nature of the program. The evidence showed merely that Warner had attended about four meetings, that the Twelve Steps had been posted on a billboard and had been discussed, and that the meetings ended in a prayer. Thus, while Warner was on notice that the program had some religious content, there was no showing that he was aware, prior to sentence, of its degree or intensity. The evidence suggests that his awareness increased later on when his probation officer, finding that he lacked commitment, directed him to attend “step meetings” (where the Twelve Steps were more intensively discussed) and to obtain a “sponsor” within the program. The dissent’s conclusion that Warner consented is not based on any factual finding by the district court. Nor is it based on evidence that compels such a finding.

Had Warner either suggested A.A. as a condition of probation, or somehow communicated his agreement to such a condition, different considerations would apply. But the mere fact of his brief presentence attendance, designed to demonstrate his commitment to rehabilitation, did not amount to a consent to the aspect of the sentence that essentially required him to attend religious exercises.⁵ A defendant facing sentence may well undertake daily attendance at mass in the hope of convincing the sentencing judge of his penitence. We do not see how such conduct, without more, could be construed as consent to a sentence of probation conditioned on daily attendance at mass.

B. Acts of Alcoholics Anonymous

The immediate cause of Warner’s injury was not the sentencing judge’s decision to send him to an alcohol rehabilitation program, but rather the actions of those who conducted the A.A. meetings Warner attended. Whether the religion-infused meetings should be regarded as a break in the causal chain between OCDP’s action and plaintiffs injury, thus shielding the probation department from liability, depends, again, upon whether those actions were reasonably foreseeable to OCDP at the time it made the recommendation. Gutierrez-Rodriguez, 882 F.2d at 561; see also Malley, 475 U.S. at 344 n. 7, 106 S.Ct. at 1098 n. 7.

On this point, the district court made no findings. The probation department was, of course, obligated to use reasonable care to inform itself of the suitability of therapy programs it recommended to the court, especially where such recommendations were repeatedly made as a matter of policy. Furthermore, the parties stipulated prior to trial that OCDP, when it formulated its policy of recommending A.A., was aware of the program’s Twelve Steps and of their religious character. Accordingly, there can be no question as to the reasonable foreseeability of the religious nature of the program OCDP was recommending for Warner; OCDP was well aware of it. The actions of A.A. cannot be considered to have broken the chain of causation. OCDP is responsible for any resulting injury to Warner’s First Amendment rights.

II. Establishment Clause

The County also argues that forcing Warner to attend Alcoholics Anonymous did not violate the First Amendment’s Establishment Clause. We disagree. The Supreme Court has repeatedly made clear that “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’ ” Lee v. Weisman, 505 U.S. 577, 587, 112 S.Ct. 2649, 2655, 120 L.Ed.2d 467 (1992) (quoting Lynch v. Donnelly, 465 U.S. 668, 678, 104 S.Ct. 1355, 1361-62, 79 L.Ed.2d 604 (1984)); see County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 591, 109 S.Ct. 3086, 3099-3100, 106 L.Ed.2d 472 (1989); Everson v. Board of Educ., 330 U.S. , 67 S.Ct. 504, 511-12, 91 L.Ed. 711 (1947); see also Katcoff v. Marsh, 755 F.2d 223, 231-32 (2d Cir.1985) (observing that army chaplaincy program “meets the requirement of voluntariness by leaving the practice of religion solely to the individual soldier, who is free to worship or not as he chooses without fear of any discipline or stigma”).

The A.A. program to which Warner was exposed had a substantial religious component. Participants were told to pray to God for help in overcoming their affliction. Meetings opened and closed with group prayer. The trial judge reasonably found that it “placed a heavy emphasis on spirituality and prayer, in both conception and in practice.” We have no doubt that the meetings Warner attended were intensely religious events.⁶

There can be no doubt, furthermore, that Warner was coerced into participating in these religious exercises by virtue of his probation sentence. Neither the probation recommendation, nor the court’s sentence, offered Warner any choice among therapy programs. The probation department’s policy, its recommendation, and its printed form all directly recommended A.A. therapy to the sentencing judge, without suggesting that the probationer might have any option to select another therapy program, free of religious content. Once sentenced, Warner had little choice but to attend the A.A. sessions. If Warner had failed to attend A.A., he would have been subject to imprisonment for violation of probation. See N.Y. Penal Law §§ 60.01(4), 65.00(2) (McKinney 1987); N.Y. Veh. & Traf. Law §§ 511(2), 1192(1) (McKinney 1986 & Supp.1996).

Had Warner been offered a reasonable choice of therapy providers, so that he was not compelled by the state’s judicial power to enter a religious program, the considerations would be altogether different. Our ruling depends, as in Lee, on the “fundamental limitation[ ] imposed by the Establishment Clause” that bars government from “coerc[ing] anyone to support or participate in religion or its exercise.” 505 U.S. at 587, 112 S.Ct. at 2655. In circumstances similar to our case, the New York Court of Appeals recently reached the same conclusion. Griffin v. Coughlin, 88 N.Y.2d 674, 649 N.Y.S.2d 903, 673 N.E.2d 98 (1996), cert. denied, — U.S. -, 117 S.Ct. 681, 136 L.Ed.2d 607 (1997). In Griffin, the New York court held that a prisoner’s family visiting privileges may not be conditioned on participation in a treatment program that adopts the “religiou-soriented practices and precepts of Alcoholics Anonymous.” Id. at 904, 673 N.E.2d 98. The court emphasized that it was not proscribing A.A. programs offered to prisoners on a voluntary basis. Id. at 915, 673 N.E.2d 98. It was the coercive circumstances, conditioning a desirable privilege on the prisoner’s participation in a religious program, without alternative, that drove the New York court to find a violation of the Establishment Clause.⁷ Similarly, the Seventh Circuit has ruled recently that where inmates were required to attend a substance abuse program with explicit religious content on pain of being rated a higher security risk and suffering adverse parole effects, the state impermissibly coerced participation in a religious program in violation of the Establishment Clause. Kerr v. Farrey, 95 F.3d 472 (7th Cir.1996)(“[I]n general, a coercion-based claim indisputably raises an Establishment Clause question.” Id. at 479).

Orange County argues that even if Warner was forced to attend the meetings, he was not required to participate in the religious exercises that took place. The County argues that, as a mature adult, Warner was less susceptible to such pressure than the children who were required to stand in respectful silence during a school prayer in Lee v. Weisman, 505 U.S. at 591-95, 112 S.Ct. at 2658-59; it points out that the Supreme Court expressly questioned whether the obligation imposed by the school in Lee might have been constitutionally tolerable “if the affected citizens [had been] mature adults.” Id. at 593, 112 S.Ct. at 2658.

We do not find Orange County’s argument convincing. Although it is true Warner was more mature, his exposure was more coercive than the school prayer in Lee. The plaintiff in Lee was subjected only to a brief two minutes of prayer on a single occasion. Warner, in contrast, was required to participate in a long-term program of group therapy that repeatedly turned to religion as the basis of motivation. And when he appeared to be pursuing the Twelve Steps of the A.A. program with insufficient zeal — “Thirteen Stepping” in A.A. parlance — the probation officer required that he attend “Step meetings” to intensify his motivation. Warner was also paired with another member of A.A. as a method of enhancing his indoctrination into the group’s approach to recovery from alcoholism. Most importantly, failure to cooperate could lead to incarceration. The fact that Warner managed to avoid indoctrination despite the pressure he faced does not make the County’s program any less coercive, nor nullify the County’s liability.

The County argues further that the nonsectarian nature of the A.A. experience immunizes its use of religious symbolism and practices from Establishment Clause scrutiny. The argument is at the very least factually misleading, for the evidence showed that every meeting Warner attended included at least one explicitly Christian prayer. Furthermore, the claim that non-sectarian religious exercise falls outside the First Amendment’s scrutiny has been repeatedly rejected by the Supreme Court. As the Court made clear in Board of Education of Kiry as Joel v. Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994), “a principle at the heart of the Establishment Clause [is] that government should not prefer one religion to another, or religion to irreligión.” Id. at 703, 114 S.Ct. at 2491; see also Allegheny, 492 U.S. at 591, 109 S.Ct. at 3099-3100; School Dist. of Abington Township v. Schempp, 374 U.S. 203, 216-17, 83 S.Ct. 1560, 1568-69, 10 L.Ed.2d 844 (1963).

Similarly, the County’s reliance on Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), is unavailing. In Marsh, the Supreme Court held that the Nebraska state legislature did not violate the Establishment Clause by commencing its sessions with a sectarian prayer. That opinion relied heavily on the long tradition of public prayer in this context. Id. at 786-90, 795, 103 S.Ct. at 3333-35, 3338 (noting “unbroken practice for two centuries in the National Congress”). The Court in Lee noted the significant differences between the opening ceremony of a state legislative session where adults are free to “enter and leave with little comment and for any number of reasons” and the powerful emotional compulsion for a child to be present at her high school graduation. Lee, 505 U.S. at 595-97, 112 S.Ct. at 2660. The differences between the invocation at a session of the state legislature and Warner’s compulsory adherence to the A.A. program are even more obvious.⁸

Resolving questions as to the reach of the Establishment Clause “of necessity [requires] line-drawing, ... determining at what point a dissenter’s rights of religious freedom are infringed by the State.” Id. at , 112 S.Ct. at 2661. We conclude that the constitutional line was crossed here.

Notwithstanding our conclusion that Warner’s First Amendment rights were violated, we have misgivings about awards of damages for such violations. At the time the Orange County Probation Department recommended sending Warner to AA., there were no court decisions suggesting that this was an abridgement of constitutional rights. Furthermore, it is clear that, in adopting its policy of sending alcoholic defendants like Warner to A.A., the department’s purpose was not to promote religion but to help free alcoholics from addiction by sending them to a program that has been famously successful. In these circumstances, the arguments in favor of good faith immunity are impressive.⁹ The prospect of heavy liabilities falling on well-intentioned officials or governmental entities for such conduct is an unhappy one. Furthermore, although the conduct of the OCDP is found to be impermissible under the Constitution, the injury suffered by Warner was minimal. The fact that a government agency acts in a maimer forbidden by the Constitution does not necessarily mean that the “victim” has suffered a meaningful injury that would justify a sizeable damage award. The district court’s assessment of Warner’s damages at one dollar seems to us appropriate. Had substantial damages been awarded, we would have given serious thought to an order of remittitur.¹⁰

Conclusion

We have considered Orange County’s other claims, and find them to be without merit. The judgment of the district court is affirmed.

1 . In its reply brief on appeal. Orange County for the first time raised the question whether it might be immune from liability for the acts of its probation officer. Nothing in the record filed on appeal by the defendant indicates that Orange County ever raised a defense of immunity before the district court. What is more, the County’s failure to raise the issue on appeal in its initial brief deprived Warner of the opportunity to dispute the question and deprived the court of the benefit of both sides' briefing. An issue raised for the first time on appeal is not properly before this court, and we will not consider it. Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); Hutton Const. Co., Inc. v. County of Rockland, 52 F.3d 1191, 1193 (2d Cir.1995).

2 . The First Circuit went on to state:

A negligent defendant will not be relieved of liability by an intervening cause that was reasonably foreseeable, even if the intervening force may have "directly” caused the harm. An "unforeseen and abnormal” intervention, on the other hand, “breaks the chain of causality,” thus shielding the defendant from liability.

See also Stagl v. Delta Airlines, Inc., 52 F.3d 463, 473-74 (2d Cir.1995)(under New York law liability turns upon whether the intervening act is "a normal and foreseeable consequence of the situation created by the defendant's negligence”)(quoting Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 (1980)); Bonsignore v. City of New York, 683 F.2d 635, 638 (2d Cir.1982)(same); White v. Roper, 901 F.2d 1501, 1506 (9th Cir.1990); Marsh v. Barry, 824 F.2d 1139, 1143 (D.C.Cir.1987)(question in § 1983 case where intervening cause is alleged is "whether the resulting harm was reasonably foreseeable”); Springer v. Seaman, 821 F.2d 871, 876-77 (1st Cir.1987); Restatement (Second) Torts §§ 442A, 442B, 443, 447 (1965).

3 . New York law prohibits a court from sentencing a defendant to a term of probation not agreed upon by the parties without first considering the probation department’s pre-sentence report (“PSR”). N.Y.Crim. Proc. § 390.20 (McKinney 1994). PSRs include not only material the department thinks appropriate, but also any other information the court may direct the investigation to include. Id. at § 390.30(3)(a). Once written, PSRs become confidential court documents. Id. at § 390.50(1). Although not formally located within the judicial branch, Bowne v. County of Nassau, 37 N.Y.2d 75, 371 N.Y.S.2d 449, 452, 332 N.E.2d 323 (1975), New York statutes intimately tie the probation department to the sentencing process.

4 . The dissent suggests that we malign New York’s judiciary by finding that the sentencing judge merely "rubber stamped” the probation office recommendation. We neither find nor imply any such thing. First, to say, as we do, that it was reasonably foreseeable that the sentencing judge would accept probation’s recommendation on this point does not imply that the judge did not make his own determination. Second, our discussion relates only to the selection of a therapy provider and not at all to the court’s determination of appropriateness of probation and of alcohol therapy. The selection of a provider of therapy is not an issue of law, and courts are ill equipped to perform this task without relying heavily on recommendations. For sentences involving alcohol abuse therapy, furthermore, the probation department's role is particularly significant. New York law allows a judge to sentence a defendant to a term of probation conditioned on "participation] in an alcohol ... abuse program ... approved by the court after consultation with the local probation department having jurisdiction, or such other public or private agency as the court determines to be appropriate.” N.Y. Penal § 65.10(2)(e)(emphasis added). The statutory requirement that the judge seek advice in approving a particular alcohol abuse program suggests judicial reliance on the department's expertise in selecting a program.

5 . The Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), does not bar Warner's § 1983 claim. Heck ruled that a prisoner's claim for damages based on his allegedly unconstitutional prosecution and conviction was not cognizable under § 1983 because his conviction had not been invalidated. Id. at 486-87, 114 S.Ct. at 2372. Heck's rule bars a state convict from suing under § 1983 when his conviction remains outstanding and cannot be reconciled with his claim under § 1983. The rule applies most clearly where the defendant has been convicted of a crime, but contends in his § 1983 action that he was prosecuted for an unconstitutional reason. Such a defendant's outstanding conviction demonstrates that he was prosecuted with good reason. These considerations have no application to Warner’s case. His guilt is in no way incompatible with his claim that he may not lawfully be required to take alcohol therapy in a religious program. But more importantly, there can be no incompatibility because the illegal part of Warner's sentence had been eliminated before he brought his § 1983 action. There is no suggestion in Heck that his suit may not be maintained in these circumstances.

6 . As noted above, the district court made no finding on OCDP’s awareness of the religious nature of the A.A. program. We nonetheless found OCDP's responsibility by reason of the stipulation of the parties that OCDP knew the religious nature of A.A.’s Twelve Steps. The district judge’s finding of a violation of the Establishment Clause was based in part on several factors, recited above, that were not included in the Stipulation covering OCDP’s knowledge— particularly the prayers. Although there was no finding that OCDP knew (or should have known) of the prayers, the finding of Establishment Clause violation and of OCDP’s responsibility are adequately supported by the stipulated facts.

7 . See also O'Connor v. California, 855 F.Supp. 303 (C.D.Cal.1994)(no Establishment Clause violation where probationers were offered a choice between A.A. and a secular program).

8 . The parties also offer analyses of this case within the framework of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Compare Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 395 n. 7, 113 S.Ct. 2141, 2148 n. 7, 124 L.Ed.2d 352 (1993)(noting ongoing viability of Lemon) with Lee, 505 U.S. at 643—45, 112 S.Ct. at 2685 (Scalia, J., dissenting)(noting criticism of Lemon) and Lamb’s Chapel, 508 U.S. at 396-400, 113 S.Ct. at 2149-50 (Scalia, J., concurringXsame). Whatever other tests may be applicable in the Establishment Clause context, the Supreme Court has made clear that "at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” Lee, 505 U.S. at 587, 112 S.Ct. at 2655. Because sending Warner to A.A. as a condition of his probation, without offering a choice of other providers, plainly constituted coerced participation in a religious exercise, we find a violation of the Establishment Clause.

9 . But see Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), which held that municipalities do not benefit from the qualified immunity of their officers. See also Reed v. Village of Shorewood, 704 F.2d 943, 953 (7th Cir.1983)(extending the rule of Owen regarding qualified immunity to find a municipality potentially liable for its officers’ executive acts, though the officers themselves were protected by absolute immunity).

10 . See Gasperini v. Center for Humanities, Inc., - U.S. -, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (Consistent with Seventh Amendment’s prohibition on reexamination of jury verdicts, once district court has applied proper legal standard in determining whether juty award is excessive, United States courts of appeals may review district court’s denial of remittitur for abuse of discretion and direct grant thereof.).