With respect to appellate litigation, the IMLA Legal Advocacy Program serves IMLA members and their governmental clients as an evaluation center, as an information outlet and in some cases as an amicus in litigation considered to have a significant impact on a substantial number of local governments on a national basis. IMLA is the service organization of primary resort for its members in all cases in which a party to a case before the United States Supreme Court is represented by an IMLA member. The issues in these lawsuits range from the constitutional allocation of power between state and local governments and the federal government to challenges to the regulatory authority of governments based on civil and individual rights. IMLA files briefs before the Supreme Court at both the merits and petition stage and in some cases that have enough national importance, IMLA will file an amicus brief in both federal and state appellate courts. If you want to contact IMLA about possible participation in your case, contact Amanda Karras, IMLA’s Executive Director / General Counsel.
IMLA Legal Advocacy Program
For details about cases in which IMLA has participated as an amicus, click on the tabs below.
Filing Date: January 31, 2024 (Supreme Court Merits)
Gonzalez v. Trevino
Pro Bono Author: Harker Rhodes & Mariel Brookins
This case concerns a question left open by the 2019 Supreme Court decision, Nieves v. Bartlett. In Nieves, the Supreme Court held that probable cause defeats a First Amendment retaliatory arrest claim as a matter of law, except in a small subset of cases. The Court is now poised to answer what the exception from Nieves means and what type of evidence is necessary.
Background
In Nieves, officers arrested a partygoer, Bartlett, at an extreme sporting event after a heated exchange whereby the officers took Bartlett’s actions to be hostile and aggressive. The prosecutor found there was probable cause to arrest, but Bartlett sued (after charges were dismissed) claiming the arrest was in retaliation for his speech, in violation of the First Amendment. The Supreme Court held that a plaintiff must generally plead and prove the absence of probable cause to move forward with a retaliatory arrest claim under the First Amendment. However, the Court left open a “narrow qualification” for the situation where an officer has probable cause to arrest but where officers “typically exercise their discretion not to do so.” The Court provided an example of someone who is complaining about the police and then jaywalks. The Court goes on to explain that because so few people are actually arrested for jaywalking, if a plaintiff can demonstrate “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been” then the plaintiff cam proceed with a retaliatory arrest claim even if the officer had probable cause to arrest.
Facts
In this case, Sylvia Gonzalez was elected to a seat on the city council for Castle Hills, Texas, a town with fewer than 5,000 residents. As her first act in office, she called for the removal of the city manager by organizing a nonbinding petition. During her first city council meeting, a resident submitted the petition to remove the city manager to council. The council meeting grew contentious.
he meeting, Gonzalez left her belongings on the dais and went to speak to a constituent. The Mayor, Edward Trevino, who was supposed to have the petition, asked Gonzalez to look for the petition in her belongings and they found the petition there. The Mayor informed the police that he wished to file a criminal complaint against Gonzalez for taking the petition without consent. (A resident during the meeting had indicated that Ms. Gonzalez had gotten her to sign the petition under false pretenses so the Mayor believed Ms. Gonzalez had taken the petition as a result of that accusation). The police officer investigating the allegation determined that Gonzalez violated Texas Penal Code §§37.10(a)(3) and (c)(1), which provide that “[a] person commits an offense if he … intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” The investigation took over a month.
The officer secured a warrant and instead of issuing a summons for a nonviolent crime, booked her into the jail, where she spent the day.
Gonzalez sued under Section 1983, claiming that she was arrested in retaliation for her protected speech. Gonazlez claims that this criminal statute has not been used in the county to criminally charge someone trying to steal a nonbinding or expressive document in the last decade. While there were 215 grand jury indictments under the statute, she claims none remotely resembled the facts of this case.
Fifth Circuit Decision
The Fifth Circuit held that this case does not fall within the Nieves exception because Gonzalez did not present “objective evidence that she was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” The court reasoned that she failed to provide evidence of others who had mishandled a government petition and were not prosecuted. Instead, she provided evidence of who was prosecuted under the statute and argued their offenses were different than hers. The Fifth Circuit rejected her invitation to infer that because nobody else was prosecuted for similar conduct her arrest must have been motivated by her speech. The court emphasized that the Supreme Court requires “objective evidence” of “otherwise similarly situated individuals” who engaged in the same criminal conduct but were not arrested. And here, she came up short.
Issues: (1) Whether the probable-cause exception in Nieves v. Barlett can be satisfied by objective evidence other than specific examples of arrests that never happened; and (2) whether Nieves is limited to individual claims against arresting officers for split-second arrests.
Due Date: October 18, 2023 (Supreme Court Merits)
Muldrow v. City of St. Louis
Pro Bono Author: Amanda Karras, Erich Eiselt, Deanna Shahnami & Ravinder Arneja
On June 30, 2023, the Supreme Court granted cert in Muldrow v. City of St. Louis, a case in which the Eighth Circuit upheld a district court finding that a female police officer who was transferred to a position she considered less prestigious did not state a claim for sex discrimination under Title VII because she did not experience an adverse employment action. The question presented is:
Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?
Facts: In 2017, the newly appointed interim police commissioner of the City of St. Louis (City) announced various staffing changes as he took over the City Police Department (Department). A total of seventeen male and five female officers were transferred to new assignments. One such transferee was Jatonya Clayborn Muldrow (Muldrow), a police sergeant and one of four officers—two male and two female—transferred out of the Intelligence Division. Muldrow was laterally transferred to the Fifth District, where the Department needed additional sergeants. She retained her pay and rank, a supervisory role, and responsibility for investigating violent crimes. Soon after, Muldrow informally sought a transfer to the Second District, where she would have been an administrative aide. But she was transferred back to her former position in the Intelligence Division, having spent eight months in the Fifth District.
Muldrow then brought a gender-discrimination claim under Title VII of the Civil Rights Act of 1964. She asserted that her transfer to the Fifth District, and the alleged failure to approve her transfer request to the Second District thereafter, violated § 703(a)(1) of the Act, which makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex[.]”
Holdings Below: The Eighth Circuit affirmed the district court’s grant of summary judgment to the City, agreeing with the lower court that Muldrow failed to submit evidence allowing a jury to find that “she experienced an adverse employment action.” It held that “An adverse employment action is a tangible change in working conditions that produces a material employment disadvantage…[M]inor changes in duties or working conditions, even unpalatable or unwelcome ones, which cause no materially significant disadvantage, do not rise to the level of an adverse employment action.”
The Circuit listed factors to be considered when examining whether an “involuntary transfer” or “denial of a sought-after transfer” rises to the level of an adverse employment action: whether it results in (or would have resulted in) “a change in supervisory duties, prestige, schedule and hours, or promotion potential.” The differences between positions must be “material” to give rise to a discrimination claim, not “minor” or “trivial.” The Eighth Circuit held that Muldrow failed to support her assertion that Fifth District work was “more administrative and less prestigious,” or that she “suffered a significant change in working conditions or responsibilities.” Her requests for transfer to an administrative-aide position were never formalized and never reached senior decision makers. In sum, the supposed denial of Muldrow’s transfer request did not amount to an adverse employment action.
Certiorari: Muldrow filed for certiorari, arguing that nothing in the Title VII provision at issue requires an “adverse employment action” and that the Eighth Circuit’s interpretation of Title VII is not faithful to the statutory text. The Court granted cert on June 30, 2023 asking the parties whether a Title VII job transfer claim requires a court determination that the transfer caused a “significant disadvantage.”
Due Date: August 21, 2023 (Supreme Court Merits)
United States v. Rahimi
Pro Bono Author: Lawrence Rosenthal
The Supreme Court will hear a case next Term in which the Fifth Circuit held that under Bruen, a federal law prohibiting possession of firearms by persons subject to domestic violence restraining orders violates the Second Amendment. The question presented is:
Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.
Facts: In 2020, a Texas court issued a domestic violence restraining order against Zackey Rahimi (Rahimi) after he assaulted his girlfriend and warned her that he would shoot her if she told authorities about the attack. The court found that Rahimi had “committed family violence” and that such violence was “likely to occur again in the future.” The order barred Rahimi from possessing a firearm and notified him that, while the order was in effect, his gun possession might constitute a felony under federal law.
Rahimi acknowledged receipt of the restraining order and its prohibition against gun possession but did not comply. In August 2020, he approached the girlfriend’s house in the middle of the night, prompting state police to arrest him. In November 2020, he threatened another woman with a gun, leading the State of Texas to charge him with aggravated assault with a deadly weapon. Rahimi was subsequently involved in five separate shooting incidents in Arlington, Texas. When officers searched his house pursuant to a warrant, they found numerous weapons and ammunition.
A federal grand jury indicted Rahimi for possessing a firearm while under a domestic violence restraining order in violation of 18 U.S.C. §922(g)(8), which makes it unlawful for any person subject to a court order that “includes a finding that such person represents a credible threat to the physical safety of [an] intimate partner or child” to possess “any firearm or ammunition…” (The statute requires that the person subject to the order have the opportunity to participate in a hearing regarding the order). Rahimi pleaded guilty, receiving a sentence of more than six years behind bars.
Fifth Circuit Reversal: The Fifth Circuit initially upheld the lower court conviction, but shortly thereafter, the Supreme Court released its opinion in New York Pistol and Rifle Club v. Bruen. Rahimi appealed his conviction, asserting a facial challenge to §922(g)(8), claiming the statute violated the Second Amendment. In March 2023, applying Bruen, the Fifth Circuit reversed itself and vacated its prior order.
The federal government raised numerous arguments which were rejected. Its assertion that the Second Amendment only applies to “law abiding, responsible citizens” failed; references to “law-abiding,” “responsible,” and “ordinary” citizens in Heller and Bruen did not create “an implied gloss that constricts the Second Amendment’s reach.” The panel found that deprivation of a fundamental constitutional right cannot be based on the relatively lower procedural protections afforded defendants in civil proceedings: “[t]he distinction between a criminal and civil proceeding is important because criminal proceedings have afforded the accused substantial protections throughout our Nation’s history,” and that §922(g)(8) disarms individuals “subject merely to civil process.” Accordingly, while Heller suggested that “felons” may be deprived of gun possession, Rahimi’s restraining order was merely a civil disposition; if the Second Amendment meant that Rahimi could be deprived of firearm possession merely because he was not “law-abiding,” could “speeders” or “[p]olitical nonconformists” also be stripped of their Second Amendment rights?
Bruen’s new paradigm also clearly required an analysis of whether § 922(g)(8) fell within the nation’s historical tradition regarding gun possession. As the Fifth Circuit put it:
Enter Bruen. Expounding on Heller, the Supreme Court held that ‘[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Bruen, 142 S. Ct. at 2129–30. In that context, the Government bears the burden of ‘justify[ing] its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.’ Id. at 2130. Put another way, ‘the [G]overnment must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.’ Id. at 2127.
The Circuit analyzed three classes of historical analogues proffered by the government, seeking antecedents that imposed “comparable burdens” and were “comparatively justified” as the current law: “(1) English and American laws (and sundry unadopted proposals to modify the Second Amendment) providing for disarmament of ‘dangerous’ people, (2) English and American ‘going armed’ laws, and (3) colonial and early state surety laws.” It found that none applied; they were either too old, too unspecific, too focused on terrorism, or did not actually result in forfeiture of gun possession.
As the Fifth Circuit summarized it, “the Government’s argument fails because (1) it is inconsistent with Heller, Bruen, and the text of the Second Amendment, (2) it inexplicably treats Second Amendment rights differently than other individually held rights, and (3) it has no limiting principles.”
Petition for Certiorari: The government petitioned for Supreme Court review, supported by seven amicus briefs, including one by the District Attorney of Tarrant County signed by DAs from more than twenty other Texas counties.
The government’s petition points out that more than one million instances of domestic violence occur each year and that the presence of firearms significantly increases the likelihood of death in such interactions: “All too often, * * * the only difference between a battered woman and a dead woman is the presence of a gun.” (citing United States v. Castleman, 572 U.S. 157, 160 (2014).
Due Date: August 21, 2023 (Supreme Court Merits)
Culley v. Attorney General of Alabama / Sutton v. Town of Leesburg
Pro Bono Author: Gilbert Dickey
Facts: Each of these cases involves the seizure and forfeiture of cars that were involved in illegal activity. In both, the person driving the car was found with drugs and arrested; in each, the owner of the vehicle was not in the car, was not involved in the crime, and was not arrested. Instead, they were made defendants under Alabama’s Civil Asset Forfeiture (“CAF”) statute. Ala. Code § 20-2-93 and deprived of the possession of their vehicles for extended periods.
Proceedings Below: In both CAF cases in Alabama state courts, the plaintiffs prevailed on summary judgment by asserting the innocent owner defense available under the CAF statute. However, they had to wait many months in order to prevail on the merits in the underlying CAF cases. (The plaintiffs could have retrieved their vehicles by posting a bond equal to twice the vehicles’ value but did not do so).
The Eleventh Circuit affirmed both District Courts, holding that the Sixth Amendment “speedy trial” standard articulated in United States v. $8850, 461 U.S. 553 (1983) and Barker v. Wingo, 407 U.S. 514 (1972) allows the State to retain property seized incident to arrest without holding a prompt post-deprivation probable cause hearing to determine whether the property will ultimately be forfeitable. In so doing, the Eleventh Circuit departed from virtually every other circuit to review the issue (the Third, Fourth, Fifth, Seventh, Eighth, Ninth, and Tenth) which have applied the three-part due process analysis in Mathews v. Eldridge, 424 U.S. 319 (1976).
Issues: The Supreme Court granted certiorari; the issues presented to the Court are: 1) Whether the Due Process clause requires a state or local government to provide a post-seizure probable-cause hearing prior to a statutory judicial-forfeiture proceeding, and 2) if so, when such a hearing must take place, should it apply the “speedy trial” test employed in United States v. $8,850 and Barker v. Wingo or the Mathews v. Eldridge three-part due process framework.
The respondents’ brief points to the availability of relief under the State’s bond provisions. They also argue that the outcome under either test, Mathews or Barker, would be the same.
Filing Date: June 30, 2023 (Supreme Court Merits)
Lindke v. Freed
Pro Bono Author: Caroline Mackie, Robert Hagemann, Andrea Liberatore & Rohun Shah
Facts: James Freed (Freed) had a Facebook page, which started out as private, but once he had more than 5,000 friends, he converted it to a “page” which allows for unlimited followers. His page was public (anyone could follow it) and for the page category, he chose “public figure.” In 2014 (after he created the public Facebook page), he was appointed to City Manager of Port Huron, Michigan and he added that information to his Facebook page. He listed his contact information as Port Huron’s, including linking to the city website, city email, etc. He used the page to post about personal and professional itemss, including things like his daughter’s birthday pictures, but also the town’s COVID-19 policies and articles on public-health measures as the pandemic continued.
Kevin Lindke (Lindke) was a citizen of Port Huron and unhappy with the City’s COVID policies. Lindke would post negative comments on Freed’s Facebook page and Freed would delete those comments. Freed eventually blocked Lindke from the page. Lindke sued, claiming blocking him from the Facebook page was “state action” for the purposes of a Section 1983 claim and that Freed had violated his First Amendment rights in doing so.
Proceedings Below: The Sixth Circuit concluded that Freed was not acting “under the color of state law” for the purposes of bringing a Section 1983 action. The Sixth Circuit applies what it calls the “state-official test,” which asks if the official “is performing an actual or apparent duty of his office or if he could not have behaved as he did without the authority of his office.” In concluding that Freed was not acting as a state official in using his Facebook post, the court emphasized that you must look at the page as a whole, not at individual posts in isolation. The court reasoned that the Facebook page did not derive from his duties as City Manager nor did it depend on his authority as City Manager. Freed also used no state or city funds or resources to run the page, no government employees helped him maintain it, and it was clear the page belonged to him and not the office of City Manager (i.e., it will stay with him when he leaves his job).
The court rejected the argument that the page helped him fulfill an official duty of communicating with constituents, pointing out that he is free to go to the hardware store in town and talk about this job and he is not engaging in official state action when he does that. The court also distinguished the case from the Trump case of several years ago where the former President was also sued for blocking critics on Twitter. The Sixth Circuit explained that the way that then-President Trump had used the account created “substantial and pervasive governmental involvement with and control over” the Twitter account and that Freed was not using his account in the same manner.
Issue: Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.
Filing Date: June 30, 2023 (Supreme Court Merits)
O’Connor-Ratcliff v. Garnier
Pro Bono Author: Robert Hagemann
Facts: In this case, two school district officials created public Facebook and Twitter pages to promote their campaigns for office. They maintained separate private accounts for family/friends. After they won their elections, they used their public social media pages generally to promote school board business, solicit input on board decisions, invite the public to school board meetings, etc. The “about” section on the pages lists their positions as school trustees, and links to official trustee emails. Only the trustees themselves could post on their public pages, but members of the public could comment on a post or react to it (like, dislike, etc.).
Christopher and Kimberly Garnier (Garniers) were members of the community with children in the school district. They would frequently write repetitive and critical comments on the school board officials’ pages. For example, within ten minutes of the officials’ posting a message on their pages, the Garniers would post over 200 identical replies. The school board officials deleted and hid the posts and then eventually blocked them from their social media accounts.
The Garniers sued under Section 1983, claiming the school board officials had violated their First Amendment rights by blocking them from their social media pages.
Proceedings Below: The Ninth Circuit concluded that the school board officials were acting under the color of state law for the purposes of Section 1983 and that therefore blocking the Garniers from their account because of the message the Garniers were promoting violated the First Amendment. The Ninth Circuit analogized the situation to off-duty governmental employees, explaining that the question is whether the public official’s conduct even if “seemingly private,” is sufficiently related to the performance of his or her official duties to create “a close nexus between the State and the challenged action,” or whether the public official is instead “pursu[ing] private goals via private actions.” The Ninth Circuit concluded that the social media pages were “overwhelmingly” geared toward providing official information and soliciting feedback on the same. The court also rejected the argument that these were personal campaign pages even though that is how they started out.
Issue: Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social-media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.
Filing Date: April 5, 2023 (Supreme Court Merits)
Groff v. DeJoy
Pro Bono Author: Andrew Hessick & Richard Simpson
Groff was hired by USPS as a Rural Carrier Associate, which is a non-career employee who provides coverage for absent employees. The work for a RCA is as needed and the job requires flexibility. RCAs do not accrue leave and any absences are unpaid. During Groff’s employment, there was a shortage of RCAs in his region. Also, during this time, USPS contracted with Amazon to deliver packages, including on Sundays. USPS indicated that the success of the Amazon Sunday delivery was critical to USPS.
Plaintiff’s sincere religious beliefs dictate that Sunday is meant for a day of worship and rest. He therefore informed USPS that he was unable to work on Sundays. USPS told him that during peak season (November – January) he would have to work Sundays or find another job. But they offered other accommodations, including that he could start later on Sunday after attending services and work after. USPS also offered to find employees to swap shifts with him. USPS was able to find other employees to cover his Sunday shifts for some of the time, but there were at least 20 Sundays where no co-workers could swap, and Groff did not work (there were only 2 other individuals who could cover his shifts for some of time time). Groff was disciplined for failing to work on those days and ultimately left USPS.
Groff sued alleging violations of Title VII for failing to accommodate his religion.
Title VII makes it unlawful “to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…religion.” To establish a prima facie case of religious discrimination, Groff must show he has 1) a sincere religious belief that would prohibit work on Sunday; 2) informed his employer of the conflict; and 3) was disciplined for failing to comply with the conflicting job requirement. The burden then shifts to the employer to demonstrate either that “it made a good-faith effort to reasonably accommodate the religious belief, or such accommodation would work an undue hardship upon the employer and its business.”
The first issue is whether the employer offered a reasonable accommodation. If the employer did, the statutory inquiry ends. In the Third Circuit, to demonstrate a legally sufficient accommodation, it must eliminate the conflict between the job duty and the sincerely held religious belief. The Third Circuit concluded that “even though shift swapping can be a reasonable means of accommodating a conflicting religious practice, here it did not constitute an “accommodation” as contemplated by Title VII because it did not successfully eliminate the conflict.”
If the good faith attempts to accommodate the religious practice are unsuccessful, the next step in the analysis under Title VII asks whether providing the accommodation would work an undue hardship on the employer. “An undue hardship is one that results in more than a de minimis cost to the employer.” USPS provided evidence that Groff’s absences created more work for the postmaster and Groff’s superiors, created burdens for his co-workers who had to do extra work, and created a tense atmosphere amongst other employees and hostility toward management. The Third Circuit concluded that Groff’s requested accommodation to be exempt from working Sundays caused “more than a de minimis cost on USPS because it actually imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale…”
The Supreme Court granted certiorari on the following issues: (1) Whether the court should disapprove the more-than-de-minimis-cost test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 stated in Trans World Airlines, Inc. v. Hardison; and (2) whether an employer may demonstrate “undue hardship on the conduct of the employer’s business” under Title VII merely by showing that the requested accommodation burdens the employee’s coworkers rather than the business itself.
Filing Date: April 5, 2023 (Supreme Court Merits)
Tyler v. Hennepin County
Pro Bono Author: John Baker & Katherine Swenson
Under Minnesota law, property taxes become a lien against the property once they are assessed. Minn. Stat. § 272.31. If property taxes are not paid during the year in which they are due, they become delinquent the following year, at which point, a county may obtain a judgment against the property. Minn. Stat. § 279.03 subd. 1. As a matter of notice and procedure, each year, the county auditor creates a delinquent tax list, which identifies the properties on which taxes are owed, the taxpayer(s), and the amount of taxes/penalties owed. The delinquent tax list is published twice and mailed to all delinquent taxpayers. A lawsuit is commenced against delinquent taxpayers and if there is no answer, the court enters a judgment against the property.
Delinquent taxpayers have several avenues to avoid forfeiture. First, while title in the property vests in the state after judgment is entered, that title is subject to the right of redemption, which is a 3-year period during which the taxpayer may redeem the property for the amount of delinquent taxes, penalties, costs, and interest. Minn. Stat. §§ 281.01–281.02, 281.17. Second, a property owner seeking to avoid forfeiture who cannot afford to redeem the property, can make a “confession of judgment,” which then allows the property owner to consolidate the debt /tax delinquency and pay in installments over five to ten years. If a property owner fails to pursue either of these avenues, absolute title vests in the state and all outstanding taxes, penalties, interest, etc. are canceled. Even after absolute title vests, the state still provides additional procedures for the property owner to repurchase his/her property. Under Minnesota’s tax foreclosure scheme, former property owners have no way to claim any proceeds from the sale of the property in excess of the tax debt.
The Plaintiff in this case owned a condominium in Minneapolis and stopped paying taxes in 2010. At the time the County sought judgment under the aforementioned statutory scheme, the Plaintiff owed $15,000 in unpaid state property taxes, penalties, costs, and interest. The Plaintiff received the statutorily prescribed notice of foreclosure, failed to answer, and then never tried to redeem the property during the 3-year period. She also did not seek to repurchase the property. Thereafter, Hennepin County sold the property for $40,000, and kept the surplus and distributed it in a manner pursuant to state statute.
Tyler sued, claiming the County violated the Fifth Amendment’s Takings Clause and the Eighth Amendment’s Excessive Fines Clause by keeping the value of her property in excess of the tax debt that she owed. As to the Taking’s inquiry, the Eighth Circuit explained that for Tyler to succeed, she “must show that she had a property interest [under Minnesota law] in the surplus equity after the county acquired the condominium.” The Eighth Circuit found that under Minnesota law, there is no right to surplus equity in a property and “where state law recognizes no property interest in surplus proceeds from a tax-foreclosure sale conducted after adequate notice to the owner, there is no constitutional taking.”
The Eighth Circuit affirmed the district court’s holding that the County’s retention of her surplus equity was not an excessive fine under the Eighth Amendment. The district court explained that whether the forfeiture is a “fine” turns on the question of whether it is a form of punishment. The district court agreed with the County that the forfeiture at issue here was remedial as it related to helping the government recoup its costs associated with non-payment of property taxes and was therefore not a fine under the Eighth Amendment. The court rejected the argument that the forfeiture was punitive simply because the County received more than what was needed to make it whole.
Issues: (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment’s takings clause; and (2) whether the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.
Filing Date: February 24, 2023 (Supreme Court Merits)
United States v. Hansen
Pro Bono Author: Jaime Huling Delaye & Molly Alarcon
In this case, th Ninth Circuit found a portion of a criminal statute, 8 USC 1324, unconstitutional in violation of the First Amendment. This same statute was used by ICE under the prior administration to threaten local governments and local government officials with prosecution. Local governments were also forced to certify compliance with the statute (among others) in their Byrne Jag grant applications or forego millions of dollars, which resulted in significant litigation between local governments and the federal government. The concern with this case is that a broad reading of the statute could implicate health and welfare programs that local governments offer their residents regardless of citizenship status. Three years ago, the Supreme Court heard oral argument in a case involving the precise issue raised in this case (the constitutionality of this statute), but the Court did not decide the issue on technical grounds.
In this case, Hansen was convicted of encouraging or inducing illegal immigration for private financial gain in violation of 8 USC § 1324(a)(1)(A)(iv). That statute provides: that any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” Hansen argued that 1324(a)(1)(A)(iv) is overly broad in violation of her First Amendment free speech rights.
The Ninth Circuit previously decided that the statute was overly broad in violation of the First Amendment in United States v. Sineng-Smith, 910 F.3d 461 (9th Cir. 2018). The Supreme Court granted certiorari in that case, but vacated and remanded the case instead of deciding the question because the Ninth Circuit “departed so drastically from the principle of party presentation as to constitute an abuse of discretion” by deciding the case on arguments originally raised by amici instead of the parties.
Now, three years later in this case, the Ninth Circuit once again held that 1324(a) is overly broad in violation of the First Amendment as it “criminalizes a substantial amount of protected expressive activity.” (Presumably this time the parties made these arguments). The Ninth Circuit pointed out numerous examples of protected speech that would be prosecutable under the statute, including “encouraging an undocumented immigrant to take shelter during a natural disaster [and] advising an undocumented immigrant about available social services…”
Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.
IMLA filed an amicus brief involving this same issue in 2019 where we explained the relevance of this statute to local governments:
The federal government has [] made clear its view that local governments and their officials might violate the criminal prohibitions of Section 1324 merely by pursuing legitimate state and local prerogatives. … For instance, throughout his tenure in 2017 and 2018, then-Acting Director of Immigration and Customs Enforcement (“ICE”) Thomas Homan frequently referenced Section 1324 when asked about jurisdictions that decide not to expend resources to assist federal immigration enforcement efforts.
Furthermore, many local governments were involved in litigation over immigration related conditions that were attached to formula grants under the prior administration. One of those conditions centered around 1324 and there was significant ambiguity as to its scope and application to local governments.
That said, apparently ICE has never accused local governments specifically of violating 8 U.S.C. § 1324(a)(1)(A)(iv) (which includes the “encouraging” or “inducing” language). Instead, ICE (under the prior administration) had apparently accused at least San Francisco of possibly violating portions of § 1324 that relate to “harboring” and “transporting” “aliens,” which is 1324(a)(1)(A)(iii). However, it is not such a stretch to imagine that the federal government could interpret a local government declaring itself a sanctuary or welcoming jurisdiction as “encouraging” or “inducing” “aliens” to come to the United States and their locality in particular. In its prior decision, the Ninth Circuit underscored this point:
A speech addressed to a gathered crowd, or directed at undocumented individuals on social media, in which the speaker said something along the lines of “I encourage all you folks out there without legal status to stay in the U.S.! We are in the process of trying to change the immigration laws, and the more we can show the potential hardship on people who have been in the country a long time, the better we can convince American citizens to fight for us and grant us a path to legalization,” could constitute inducement or encouragement under the statute.
While this statute and its interpretation would seem to be an issue for so-called sanctuary jurisdictions, it also could present problems for other local governments who simply want to provide services to residents in their community, regardless of immigration status. This was another argument we made in the previous amicus brief. For example, if a person comes to a municipal foodbank and tells the person working there that he or she is undocumented, if the municipality has a policy to nonetheless provide food for hungry people regardless of immigration status, there is a concern that the municipality could be found to have violated the “induce” or “encourage” portion of this statute. The same could be said for a program that provides immunizations for free to community members or a community that provides shelters for domestic violence victims or individuals experiencing homelessness regardless of their immigration status. In each example, in theory, the federal government could argue that by providing these services to undocumented immigrants, the local government has “encouraged” that person to stay in violation of the statute.
Filing Date: August 10, 2022 (Supreme Court Merits)
Wilkins v. United States
Pro Bono Author: Daniel Bromberg & Jeffrey W. Mikoni
Larry Wilkins and Jane Stanton both live along Robbins Gulch Road in rural Montana. The road runs near a National Forest and crosses private property for approximately one mile (including their property). Wilkins and Stanton acquired their properties in 1991 and 2004, respectively. The previous owners had granted the United States an easement for Robbins Gulch Road in 1962.
In September 2006 the Forest Service put up a sign on Robbins Gulch Road indicating public access on the road was allowed. Since then, Wilkins and Stanton claim trespassers have been on their land, causing serious disruptions to the homeowners (including shooting one of their cats). In August 2018, Wilkins and Stanton sued the United States under the Quiet Title Act “to confirm that the easement does not permit public use of the road and to enforce the government’s obligations to patrol and maintain the road against unrestricted public use.”
The Quiet Title Act, 28 U.S.C. §2409a provides a waiver of sovereign immunity for the United States, stating: “The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights.” The Act provides for a 12-year statute of limitations, indicating that accrual occurs “on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.” § 2409a(g).
The United States argued that the Act’s 12-year limitation period renders the petitioners’ suit jurisdictionally barred as they sued more than 12 years after they knew or should have known about the claim. The Petitioners argued that the time limit is a non-jurisdictional claims processing rule, which would allow their suit to proceed.
In a 6-3 decision authored by Justice Sotomayor, the Supreme Court agreed with the Petitioners and held that the statute is a non-jurisdictional claims processing rule. The Court noted that a procedural rule “seek[s] to promote the orderly progress of litigation” while “[l]imits on subject-matter jurisdiction…have a unique potential to disrupt the orderly course of litigation.” Jurisdictional bars go straight to the Court’s subject matter jurisdiction and can therefore be raised at any time and such bars also preclude doctrines seeking to ensure efficiency and fairness in litigation, like waiver and estoppel. The Court explained that given the disruption to litigation if a rule is labeled jurisdictional rather than claims processing, Congress must provide a clear statement that it wishes to treat a procedural requirement as jurisdictional, and here, no such clear statement was present.
Filing Date: August 12, 2022 (Supreme Court Merits)
National Pork Producers Council v. Ross
Pro Bono Author: John Korzen
California’s Proposition 12 prevents the sale of “[w]hole pork meat” in the state unless the meat was produced in compliance with “specified sow confinement restrictions.” Proposition 12 is intended to “prevent animal cruelty by phasing out extreme methods of farm animal confinement, which also threaten the health and safety of California consumers and increase the risk of foodborne illness and associated negative fiscal impacts on the State of California.” The National Pork Producers Council claims that Proposition 12 violates the dormant Commerce Clause.
The plaintiffs allege that the pork industry is highly interconnected and that “[t]o ensure they are not barred from selling their pork products into California, all the producers and the end-of-chain supplier will require assurances that the cuts and pork products come from hogs confined in a manner compliant with Proposition 12.” The result, they claim, is that all suppliers will either have to comply with California’s law or incur additional costs to segregate their products. The plaintiffs claim the law will result in a 9.2 % increase in production cost for pork. In their suit, the plaintiffs allege that the California law violated the dormant commerce clause by impermissibly regulating extraterritorial conduct outside of the State and imposes an undue burden on interstate commerce.
The Ninth Circuit held Proposition 12 does not violate the dormant Commerce Clause. According to the Ninth Circuit, citing to South Dakota v. Wayfair (2018), there are “two primary principles that mark the boundaries of a State’s authority to regulate interstate commerce.” “First, state regulations may not discriminate against interstate commerce; and second, States may not impose undue burdens on interstate commerce.” The Supreme Court in Wayfair also reiterated the holding of a previous case that state law may violate the dormant Commerce Clause when it has “extraterritorial effects.”
Regarding “extraterritorial effects” the National Pork Producers argued that Proposition 12 impermissibly regulates the price of pork in other states. The Ninth Circuit acknowledged that the Supreme Court cases cited by the plaintiffs “used broad language.” But the Ninth Circuit has interpreted those cases narrowly holding that the extraterritoriality principle is “not applicable to a statute that does not dictate the price of a product and does not tie the price of its in-state products to out-of-state prices.” According to the Ninth Circuit: “[i]t is undisputed that Proposition 12 is neither a price-control nor price-affirmation statute, as it neither dictates the price of pork products nor ties the price of pork products sold in California to out-of-state prices.”
The National Pork Producers next argued that Proposition 12 imposes a burden on interstate commerce which is “clearly excessive in relation to the putative local benefits” in violation of the dormant Commerce Clause. According to the Ninth Circuit “the crux of the allegations supporting the Council’s substantial burden claim is that the cost of compliance with Proposition 12 makes pork production more expensive nationwide.” But, the Ninth Circuit reasoned, “alleged cost increases to market participants and customers do not qualify as a substantial burden to interstate commerce for purposes of the dormant Commerce Clause.” Per the Ninth Circuit:
“[A] loss to [some specific market participants] does not, without more, suggest that the [state] statute impedes substantially the free flow of commerce from state to state.” Even if producers will need to adopt a more costly method of production to comply with Proposition 12, such increased costs do not constitute a substantial burden on interstate commerce. Nor do higher costs to consumers qualify as a substantial burden on interstate commerce.
The issues in this case are: (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Court’s decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim under Pike v. Bruce Church, Inc.
Filing date: August 19, 2022 (Supreme Court Merits)
303 Creative LLC v. Elenis
No. 21-476
Pro Bono Author: Aileen McGrath & Juliana DeVries
Lorie Smith designs websites for her company 303 Creative. She wants to start creating wedding websites, but she does not want to create websites that celebrate same-sex marriage due to her religious beliefs. She also wants to publish a statement on her website that she will not create wedding websites for same-sex couples as doing so would compromise her religious beliefs.
Colorado’s Anti-Discrimination Act’s (CADA) “accommodation clause” prohibits public accommodations from refusing to provide services based on a number of protected characteristics, including sexual orientation. CADA’s “communication clause” prevents public accommodations from communicating that someone’s patronage is unwelcome because of sexual orientation.
The Tenth Circuit ruled that Colorado’s statute that requires Smith to create websites for same-sex marriages and prohibits her from publishing a statement explaining why doing so violates her religious beliefs does not violate the First Amendment’s free speech or free exercise clauses.
Regarding free speech and the “accommodations clause” of CADA, the Tenth Circuit concluded the clause compels speech and is a content-based restriction, but that it is nevertheless constitutional and survives strict scrutiny. The court reasoned that the “accommodation clause” is “narrowly tailored to Colorado’s interest in ensuring ‘equal access to publicly available goods and services.’” The Tenth Circuit also concluded the “communication clause” did not violate Smith’s free speech rights because, the court reasoned, the State could “prohibit speech that promotes unlawful activity, including discrimination.”
The Tenth Circuit also concluded that CADA did not violate the free exercise clause, but the Supreme Court did not grant certiorari on this issue and that issue is therefore not before the Court.
The issue in this case is whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.
This is the third time the Supreme Court has tried to resolve the tension between the First Amendment and anti-discrimination laws. In the two prior cases IMLA filed an amicus brief. When we filed our brief in Masterpiece Cakeshop on this issue more than three years ago, we noted that 21 States and more than 100 local governments have anti-discrimination provisions that protect citizens from discrimination based on sexual orientation (presumably more have these laws now).
Filing Date: April 18, 2022 (Supreme Court Merits)
Sackett v. EPA
No. 21-454
Pro Bono Author: Andre Monette & Roderick Walston
The Supreme Court has agreed to take up a case pertaining to the definition of “waters of the U.S.” (WOTUS) under the Clean Water Act (CWA). The case will allow the Court to address the question of the proper test for determining whether wetlands are considered WOTUS under the CWA. Baked into that question is whether the Court should adopt the Scalia test or the Kennedy test from the Rapanos decision. Because we believe local governments may be split on that question, we do not plan to weigh in on what the proper test is. Instead, IMLA plans to file a brief that will focus on limiting the Court’s definition to exclude municipally owned facilities and infrastructure, such as those related to drinking water, wastewater, and stormwater control features.
Given the arguments we would make, the facts are largely irrelevant for our purposes. They involve a landowner that purchased a “soggy residential lot” near Idaho’s Priest Lake. To the north of their lot, with a road in between, is a wetland that drains to a tributary that feed into a creek that flows southwest of the Sacketts’ property and empties into Priest Lake. The Sackett’s property is 300 feet from the lake.
After obtaining permits from the county the Sacketts began backfilling the property with sand and gravel to create a stable grade. EPA ultimately issued the Sacketts a “formal administrative compliance order” explaining that “the Sacketts’ placement of fill material onto half an acre of their property without a discharge permit constituted a violation of the CWA.”
By way of background, the CWA extends to all “navigable waters,” defined as “waters of the United States, including the territorial seas,” and it prohibits any person who lacks a permit from discharging pollutants, including rocks and sand, into those waters. The CWA regulations define “waters of the United States” to include “wetlands” that are “adjacent” to traditional navigable waters and their tributaries.
Rapanos v. United States concerned the “governing standard for determining CWA jurisdiction over wetlands.” There was no majority opinion in Rapanos. Justice Scalia, writing for four Justices, stated that “waters of the United States” extends only to “relatively permanent, standing or flowing bodies of water” and to wetlands with a “continuous surface connection” to such permanent waters. According to Justice Kennedy, who concurred in the judgment only, “jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” This “significant nexus” inquiry would turn on whether the wetlands, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”
The Ninth Circuit held that Justice Kennedy’s definition of WOTUS from Rapanos v. United States (2006) is controlling. According to the Ninth Circuit, while the Scalia plurality did not entirely reject the concept of a “significant nexus,” it opined that only wetlands with a “physical connection” to traditional navigable waters had the requisite nexus to qualify as “waters of the United States.”
The issue in this case is whether the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act, 33 U. S. C. §1362(7).
Filed April 1, 2022 (Supreme Court Merits)
Kennedy v. Bremerton School District
No. 21-418
Pro Bono Author: Michael Dreeben & Jenya Godina
This case presents a free speech and free exercise claim by a football coach at a public school. For IMLA’s purposes, we would focus on the first issue in the case, which involves questions of public employee speech. This case presents important issues for local governments because they are all public employers and because this case could offer an opportunity to prevent expansion of lawsuits by public employees who create disruptions in the workplaces.
Kennedy was an assistant football coach at a public school who felt compelled by his religious beliefs to kneel and pray at the 50-yard line immediately after each game concluded. At first, he did this by himself, but over the years, students would join him while he knelt, said prayers, and gave motivational speeches involving religious themes. The group that joined Kennedy eventually grew to be the majority of the team. At least one parent complained to the principal that his son “felt compelled to participate” in the prayers, even though the student was an atheist, because he worried about his playing time.
The school had a policy entitled “Religious-Related Activities and Practices.” Pursuant to that policy, “[a]s a matter of individual liberty, a student may of his/her own volition engage in private, non-disruptive prayer at any time not in conflict with learning activities.” Additionally, “[s]chool staff shall neither encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity.” The school contacted Kennedy regarding what it indicated was a breach of this policy and told Kennedy that he was free to continue to engage in religious activity, but that activity should not interfere with his job responsibilities and should be “physically separate from any student activity, and students may not be allowed to join such activity.”
At first Kennedy complied with this directive, but shortly thereafter, he sent a letter from his attorney challenging it and indicating he planned to kneel and pray at the 50-yard line after the conclusion of the next game and that he would allow students to join him. Kennedy widely publicized his plan to pray following the football game in a number of media outlets and interviews. A Satanist religious group contacted the school district and indicated that it would conduct ceremonies on the field after football games if others were allowed to exercise their religious beliefs on the football field after games.
After the game, Kennedy went to the 50-yard line and knelt and prayed with students, coaches, a state elected official, and other members of the public, who had apparently jumped the fence to get on the field, all joining him. Kennedy continued appearing in the media after this to “spread the word of what was going on in Bremerton.”
The school district then sent Kennedy a letter telling him that it would accommodate his religious exercise, providing several suggestions on how to do so in private, but that the school could not be perceived as endorsing it. Kennedy’s response was through the media indicating that the only outcome he would accept was allowing him to pray on the fifty-yard line immediately after games.
Kennedy’s behavior resulted in disruption at the school including the head coach ultimately resigning due to concerns about his own safety (resulting from public backlash at the school). The school sent Kennedy a letter indicating he had “failed to follow district policy”, “his actions demonstrated a lack of cooperation with administration,” he “contributed to negative relations between parents, students, community members, coaches and the school district,” and he “failed to supervise student-athletes after games due to his interactions with [the] media and [the] community.” Kennedy did not apply for a 2016 coaching position and instead sued the school district alleging violations of both the Free Speech and Free Exercise Clauses of the First Amendment.
The Ninth Circuit applied Pickering v. Bd. of Educ. to his free speech claim and ultimately concluded that when he was engaging in the prayer activity, he was speaking as a public employee and not a private citizen. The court concluded that because he was speaking as a public employee, his speech was not protected, and his behavior was therefore not insulated from discipline under Pickering and Garcetti. The court reasoned “his expression on the field—a location that he only had access to because of his employment—during a time when he was generally tasked with communicating with students, was speech as a government employee.” The Ninth Circuit also concluded that even if Kennedy were speaking as a private citizen, the school district had an adequate justification under Pickering to treat him differently due to the school’s Establishment Clause concerns.
Finally, the Ninth Circuit also rejected Kennedy’s Free Exercise arguments, finding that the district could satisfy strict scrutiny in this case. (The school conceded that the rule was not neutral and generally applicable and therefore under Church of Lukumi, strict scrutiny would apply). The court reasoned that a school’s interest in avoiding Establishment Clause violations was a compelling interest and the policy was narrowly tailored because, according to the court, there was no other way to accomplish the objective, particularly given Kennedy’s refusal to accept any accommodations offered by the school.
The issues the Supreme Court granted certiorari on are: (1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.
Filed March 7, 2022 (Supreme Court Merits)
Filed November 3, 2021 (Supreme Court Petition Stage)
Vega v. Tekoh
No. 21-499
Pro Bono Author Petition Stage: Harker Rhodes & Annie Chang
Pro Bono Author Merits Stage: Harker Rhodes
IMLA filed an amicus brief in this case at the petition state and the Supreme Court granted certiorari and IMLA again filed an amicus brief at the merits stage.
This case involves a deputy sheriff’s investigation of sexual assault allegations. Deputy Vega, who responded to the incident, did not Mirandize the suspect—Terence Tekoh—prior to asking questions about what had happened. Deputy Vega reasonably believed his questioning was non-custodial and did not require Miranda warnings. Tekoh’s facts are significantly different than the Sheriff’s, though both agree that Miranda warnings were not provided. Tekoh ultimately agreed to write down what happened, confessing to the crime both in writing and in conversation. Tekoh was arrested and charged in state court for the sexual assault. The prosecutor introduced the confession against him at trial as evidence of his guilt, and the judge admitted the confession—holding that the statement was not taken in violation of Miranda. Nonetheless, the jury returned a verdict of not guilty.
After his acquittal, Tekoh sued Deputy Vega under 42 U.S.C. § 1983 for violating his Fifth Amendment right against self-incrimination. This resulted in two civil trials. At the first trial, the district court refused to instruct the jury that it needed to find Deputy Vega liable for the Fifth Amendment claim if it determined that Vega violated Miranda when obtaining the incriminating statements that were later used against the suspect at his criminal trial. In doing so, the trial court held that Miranda announced a “prophylactic rule” and that a Section 1983 plaintiff could not “use a prophylactic rule to create a constitutional right” triggering Section 1983 liability. The jury returned a verdict for Deputy Vega, concluding that there had been no unconstitutional coercion of the confession.
After the first trial, the court determined it had erred in instructing the jury on a Fourteenth Amendment due process violation, rather than a Fifth Amendment self-incrimination violation. It therefore ordered a new trial. This time, the court instructed the jury to consider the circumstances of the questioning—including its location, length, and manner, as well as whether Vega provided a Miranda warning—to determine whether Vega had “improperly coerced or compelled” Tekoh’s confession. Once again, the jury rejected the Fifth Amendment claim and returned a verdict for Deputy Vega.
Tekoh appealed to the Ninth Circuit, arguing that introduction of his un-Mirandized statement at his criminal trial constituted a violation of his Fifth Amendment rights remediable under Section 1983. The panel agreed. Acknowledging a clear circuit split on the issue, the panel nevertheless held that “the use of an un-Mirandized statement against a defendant in a criminal proceeding violates the Fifth Amendment and may support a § 1983 claim” against a law enforcement officer. Tekoh v. County of Los Angeles, 985 F.3d 713, 724 (9th Cir. 2021). The panel rooted its holding in Dickerson, which held that “Miranda announced a constitutional rule that Congress may not supersede legislatively.” Dickerson v. United States, 530 U.S. 428, 444 (2000).
The Ninth Circuit denied rehearing en banc over a dissent by Judge Bumatay, joined by six other judges. Judge Bumatay contested the panel’s determination that Section 1983 supports liability for failing to adhere to the prophylactic rule announced in Miranda even when the un-Mirandized statements were freely and voluntarily given. Judge Bumatay explained that Dickerson confirmed the “constitutional underpinnings” of Miranda, but did not upset “the long line of cases characterizing Miranda as a prophylactic rule and not a ‘constitutional right.’” Tekoh v. County of Los Angeles, 997 F.3d 1260, 1270 (9th Cir. 2021) (Bumatay, J., dissenting from denial of rehearing en banc).
The issue in this case is whether a plaintiff may state a claim for relief against a law enforcement officer under 42 U.S.C. § 1983, based on an officer’s failure to provide the warning prescribed by the Supreme Court in Miranda v. Arizona.
Filed December 22, 2021 (Supreme Court Merits)
Shurtleff v. City of Boston
No. 20-1800
Pro Bono Author: Daniel Bromberg
Boston owns three flagpoles in front of City Hall. Boston flies the United States and the POW/MIA flag on one flagpole, the Commonwealth of Massachusetts flag on the second flagpole, and its own flag on the third flagpole. Third parties may request to fly their flag instead of the City’s flag in connection with an event taking place near the flagpoles.
Camp Constitution seeks “to enhance understanding of the country’s Judeo-Christian moral heritage.” It asked the City twice to fly its Christian flag while it held an event near the flag. The City refused its requests, explaining that “the City’s policy was to refrain respectfully from flying non-secular third-party flags in accordance with the First Amendment’s prohibition of government establishment of religion.”
Over a 12-year period, the City approved 284 flag-raising events and until the Camp Constitution request, never rejected one. However, the Camp Constitution request, was the first request made by a religious organization to fly a flag at City Hall. Broadly speaking, the third-party flags that the City approved were for “the flags of other countries, civic organizations, or secular causes.” Shortly after litigation commenced, Boston memorialized its policy to comport with its past practices of only flying “the flags of other countries, civic organizations, or secular causes.”
Camp Constitution sued Boston for violations of the First and Fourteenth Amendments. The First Circuit held that the City is engaging in government speech when it flies third-party flags in front of City Hall and it therefore did not violate the First Amendment. In coming to its conclusion, the First Circuit relied on Pleasant Grove City v. Summum and Walker v. Tex. Div., Sons of Confederate Veterans, Inc., which set forth a three-part test for determining when speech is government speech. The Court looks at the history of governmental use, whether the message conveyed would be ascribed to the government, and whether the government “effectively controlled” the messages because it exercised “final approval authority over their selection.”
Regarding the history of governments using flag, the First Circuit stated: “that a government flies a flag as a ‘symbolic act’ and signal of a greater message to the public is indisputable.” The First Circuit also concluded that an observer would likely attribute the message of a third-party flag on the City’s third flagpole to the City, explaining:
… an observer would arrive in front of City Hall, “the entrance to Boston’s seat of government.” She would then see a city employee replace the city flag with a third-party flag and turn the crank until the third-party flag joins the United States flag and the Massachusetts flag, both “powerful governmental symbols,” in the sky (eighty-three feet above the ground). A faraway observer (one without a view of the Plaza) would see those three flags waiving in unison, side-by-side, from matching flagpoles.
That the third-party flag is part of a broader display cannot be understated. … The sky-high City Hall display of three flags flying in close proximity communicates the symbolic unity of the three flags.
The First Circuit also concluded that city controlled the flags based on its practice of reviewing requests and approving or rejecting them.
The First Circuit rejected the argument that the City created a public forum for flying third-party flags, reasoning the government creates a public forum “only by intentionally opening a nontraditional forum for public discourse.” In coming to this conclusion, the court relied on the City’s final approval authority and the fact that the City had criteria that limited approval only to flags of other countries, civic organizations, or secular causes.
The petition raises three long questions, which can generally be summarized as follows:
- Whether Boston created a public forum based on both its policy and the fact that it approved hundreds of third-party flags on a city flagpole outside of city hall and did not reject any requests except this one;
- Whether the First Circuit properly classified a brief display of a private religious organization’s flag on a city flagpole as government speech; and
- Whether Boston discriminated based on viewpoint or content in violation of the First Amendment in denying the religious organization’s permit to briefly display its flag on the city flagpole.
Filed October __, 2021 (Supreme Court Merits)
Cummings v. Premier Rehab Keller
No. 20-219
Pro Bono Author: Richard Simpson
Jane Cummings has been deaf since birth and is legally blind. She communicates mostly through American Sign Language (ASL). She contacted Premier Rehab, which offers physical therapy services, to treat her chronic back pain. She repeatedly requested Premier provide an ASL interpreter, but they refused. (They offered other accommodations, but she said they would not be effective for her). She sued Premier under Section 504 of the Rehabilitation Act and the Affordable Car Act for disability discrimination and sought emotional distress damages.
By way of background, Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified individual with a disability … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
Federal-funding recipients “must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs.” 45 C.F.R. § 84.4(b)(2).
The Fifth Circuit held that emotional distress damages are not available under the Rehabilitation Act or the ACA. The Rehabilitation Act and the ACA are Spending Clause legislation. According to the Fifth Circuit, the Supreme Court has “repeatedly” likened Spending Clause legislation to contract law—”in return for federal funds, the [recipients] agree to comply with federally imposed conditions.”
In Barnes v. Gorman (2002), the Supreme Court explained compensatory damages are available under Spending Clause legislation because federal-funding recipients are “on notice” that accepting such funds exposes them to liability for monetary damages under general contract law. The Supreme Court concluded, however, that punitive damages are not available under Spending Clause legislation because they are not generally available for breach of contract claims so federal funding recipients are not “on notice” that they could be liable for such damages.
The Fifth Circuit extrapolated the Barnes rationale to emotional distress damages, concluding “Premier was not ‘on notice’ that it could be held liable, under the [Rehabilitation Act] or the ACA, for Cummings’s emotional distress damages…[b]ecause emotional distress damages, like punitive damages, are traditionally unavailable in breach-of-contract actions…”
The issue in this case is whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress. While this case arose under the ACA, what is at stake is whether emotional-distress damages are categorically unavailable under Title VI and the statutes that incorporate its remedies. Those statutes include for our purposes: The Rehabilitation Act and Title II of the ADA. A rule that would preclude emotional distress damages under these statutes would financially benefit local governments.
Filed September 10, 2021 (Supreme Court Merits)
CVS Pharmacy v. Doe
No. 20-1374
Pro Bono Author: Michael McGinley
Status: The parties stipulated dismissal in this case and it was taken off the Supreme Court’s docket.
The Does are individuals living with HIV/AIDS who rely on employer-sponsored health plans for their medications. They claim that a change to CVS Pharmacy’s specialty pharmacy program amounts to discrimination under the Rehabilitation Act and the ACA. They do not allege intentional discrimination, but rather claim the change in policy discriminates against them on the basis of their disability under a disparate impact theory of liability.
By way of background, Section 1557 of the ACA provides that individuals “shall not . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination” under any federally funded health program or activity on the basis of race, sex, age, or disability.
The ACA provides a private right of action to enforce this equal-access guarantee, but it does not define a new, standalone cause of action. Instead, Section 1557 of the ACA incorporates the anti-discrimination provisions of various civil rights statutes–Title VI (race and color), ADA (age), Section 504 of the Rehabilitation Act (disability).
According to the Petition, three of the four statutes incorporated by the ACA reach only intentional discrimination and do not create a disparate-impact cause of action. The Petition also indicates that the Supreme Court’s decision in Alexander v. Choate (1985) “expressly left open whether the fourth statute, the Rehabilitation Act, provides a disparate-impact claim for disability discrimination.”
The Ninth Circuit does not acknowledge the question of whether disparate impact liability is viable under the Rehabilitation Act and instead said: “In Alexander v. Choate, the Supreme Court concluded that not all disparate-impact showings qualify as prima-facie cases under Section 504.” The Ninth Circuit then proceeded to apply the “test outlined in Choate.” Ultimately, the Ninth Circuit concluded that the Plaintiffs had stated a claim for disability discrimination under the ACA because they had “adequately alleged that they were denied meaningful access to their prescription drug benefit under their employer-sponsored health plans because the Program prevents them from receiving effective treatment for HIV/AIDS.”
Filed August 23, 2021 (Supreme Court Merits)
Thompson v. Clark
No. 20-659
Pro Bono Author: Julian Henriques, Jr. & Myriam Kasper
Larry Thompson’s sister-in-law, Camille, who was temporarily living with him, called 911 to report that Thompson was sexually abusing his one-week-old daughter. Paramedics arrived at the scene first and the sister-in-law let them into the apartment, but then Thompson told them to leave, which they did. The paramedics then relayed to the police that Thompson would not let them inside and that there was a possible situation of child abuse inside. Four armed police officers then tried to enter Thompson’s home without a warrant. Thompson refused to let them in without a warrant, but the police insisted that they be allowed in and when they tried to enter, Thompson blocked their path and allegedly shoved an officer. The officers then rushed in and pushed Thompson to the ground to handcuff him and he allegedly resisted arrest by flailing his arms preventing them from handcuffing him.
It turned out that the relative who called 911 suffered from mental illness which the officer “sensed” when they were in the apartment. The newborn was brought to the hospital where it was determined she had a diaper rash and was not being harmed. Meanwhile, Thompson was arrested and charged with obstruction of governmental administration and resisting arrest. He spent 2 days in jail after which point, he was arraigned and released on his own recognizance. At his hearing several months later the charges against him were dropped “in the administration of justice.”
Thompson brought a malicious prosecution case against police officers, among other claims not relevant here.
The Second Circuit dismissed Thompson’s “malicious prosecution” claim against the officers, holding that he failed to show a favorable termination of his criminal case. In a 2018 case, Lanning v. City of Glens Falls, the Second Circuit held that section 1983 malicious prosecution claims require “affirmative indications of innocence to establish favorable termination.” In this case Thompson innocence was not established because the only reason the prosecutor gave for dismissing charges against him was “the interests of justice.”
The issue in this case is whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally ended in a manner not inconsistent with his innocence,” as the U.S. Court of Appeals for the 11th Circuit decided in Laskar v. Hurd, or that the proceeding “ended in a manner that affirmatively indicates his innocence,” as the U.S. Court of Appeals for the 2nd Circuit decided in Lanning v. City of Glens Falls;
Filed August 20, 2021, (Supreme Court Merits Stage)
Filed February 8, 2021 (Supreme Court Petition Stage)
Reagan National Advertising of Austin v. City of Austin
No. 20-1029
Pro Bono Author Petition Stage: Amanda Karras, Erich Eiselt, Deanna Shahnami
Pro Bono Author Merits Stage: John Korzen
Status: The Supreme Court granted certiorari and the case is now pending at the Supreme Court.
At issue in this case is the City of Austin’s sign code (before it was amended) which defined an “off-premise[s] sign” as “a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site.” The Sign Code did not expressly define “on-premise[s] sign,” but it did use the term “on-premise[s] sign” in some of its provisions.
The Sign Code permitted “on-premise[s] signs” to be “electronically controlled changeable copy signs” (i.e., “digital signs”). As a result, on-premises non-digital signs could be digitized, but off-premises non-digital signs could not. The City’s stated general purpose in adopting the Sign Code is to protect the aesthetic value of the city and to protect public safety.
The City of Austin denied the applications for sign digitization of commercial messages to the plaintiffs in this case because its Sign Code did not allow the digitization of off-premises signs. The plaintiffs sued, claiming the distinction between on and off-premise signs was unconstitutional under Reed.
The district court denied the plaintiffs’ requests for declaratory judgment, concluding that the City’s sign code was content neutral and applied intermediate scrutiny in upholding the sign code. The Fifth Circuit reversed, concluding that the distinction between “on-premise” and “off-premise” is content based and therefore “presumptively unconstitutional” under Reed and subject to strict scrutiny. The Fifth Circuit noted that Justice Alito’s concurrence in Reed, which was joined by two other Justices, specifically listed distinctions between on-premise and off-premise signs as those that would not be considered content based. The court, however, rejected Justice Alito’s concurrence in Reed and explained that in order to determine if a sign is on-premise or off-premise, “one must read the sign and ask: does it advertise ‘a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site’”? The court rejected the idea that this was a time / place / manner restriction, indicating that just because you have to determine the location of the sign does not render it content neutral because you must also ask who the speaker is and what the speaker is saying, which are both hallmarks of content based inquiries. The Fifth Circuit then concluded that the City failed to meet strict scrutiny.
Filed April 7, 2021 (Supreme Court Merits)
PennEast Pipeline Co. v. New Jersey
No. 19-1039
Pro Bono Author: Vivek Tata & Caitlin Halligan
PennEast Pipeline Company, a private company, intends to build a pipeline through Pennsylvania and New Jersey. The Natural Gas Act (NGA) authorizes private gas companies like PennEast, to obtain necessary rights of way through eminent domain, as long as three conditions are met, including receiving a Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission. Upon PennEast receiving the certificate, it asked a federal district court to condemn 131 properties—42 of which belong to New Jersey. New Jersey argued that Eleventh Amendment immunity prevents it from being haled into court by a private company.
The Third Circuit ruled in favor of New Jersey holding that PennEast couldn’t bring an eminent domain action against it. The 11th Amendment prohibits states from being sued in federal court unless they have consented to suit, but an exception applies to the federal government. New Jersey argued that “the federal government cannot delegate its exemption from state sovereign immunity to private parties like PennEast.” The Third Circuit agreed, offering three reasons why it “doubt[ed]” the federal government can delegate its exemption to state sovereign immunity from lawsuits:
First, there is simply no support in the caselaw for PennEast’s “delegation” theory of sovereign immunity. Second, fundamental differences between suits brought by accountable federal agents and those brought by private parties militate against concluding that the federal government can delegate to private parties its ability to sue the States. Finally, endorsing the delegation theory would undermine the careful limits established by the Supreme Court on the abrogation of State sovereign immunity.
The issues in this case are: (1) Whether the Natural Gas Act delegates to Federal Energy Regulatory Commission certificate-holders the authority to exercise the federal government’s eminent-domain power to condemn land in which a state claims an interest; and (2) whether the U.S. Court of Appeals for the 3rd Circuit properly exercised jurisdiction over this case.
Filed March 3, 2021 (Supreme Court Merits)
City of San Antonio v. Hotels.com
No. 20-334
Pro Bono Author: Richard Simpson
The City of San Antonio filed a federal class action lawsuit claiming that online travel companies (OTCs) must collect taxes on the “retail rate” for a hotel room—the amount they collect for the room rate plus the service fee. While jury ruled in San Antonio’s favor, shortly after, a Texas state court of appeals came to the opposite conclusion in a different case.
On appeal the Fifth Circuit ruled against San Antonio reasoning that the state court’s decision was “on point” and its “interpretation control[ling],” therefore “the hotel occupancy tax applies only to the discounted room rate paid by the OTC to the hotel.”
The OTCs sought $905.60 in appellate court costs and an additional $2,008,359.00 for “post-judgment interest” and “premiums paid for the supersedeas bonds required to secure a stay of execution and preserve rights pending appeal.” The district court ordered San Antonio to pay the over $2 million in costs, claiming it lacked the discretion to lower this amount.
The Fifth Circuit held that San Antonio had to pay $2 million in costs applying Rule 39(e).
Federal Rule of Appellate Procedure Rule 39(e) lists the costs that are “taxable in the district court for the benefit of the party entitled to costs under this rule.” San Antonio argued that the district court in this case “applied the wrong legal standard, thinking it lacked discretion to deny or reduce the award when in reality it could have done so. As San Antonio points out, most other circuits to have considered this issue have held—or at least implied—that a district court retains discretion to deny or reduce a Rule 39(e) award.”
In a previous Fifth Circuit case from 1991, In re Sioux Ltd., Sec. Litig., the Fifth Circuit held Rule 39(e) is mandatory and “[t]he district court ha[d] no discretion whether, when, to what extent, or to which party to award costs of the appeal.” San Antonio argued that Sioux is no longer good law because it relied on an older version of Rule 39(e), which was amended in 1998. The old version stated appellate costs “shall be taxed in the district court” whereas the current version states appellate costs “are taxable in the district court.”
The Fifth Circuit rejected this argument, but noted that even if San Antonio was correct, the panel was bound by the Circuit’s prior precedent rule since Sioux had not been overruled.
The issue in this case is whether district courts “lack[] discretion to deny or reduce” appellate costs deemed “taxable” in district court under Federal Rule of Appellate Procedure 39(e).
Filed January 17. 2021 (Supreme Court Merits)
Caniglia v. Strom
No. 20-157
Pro Bono Author: John Korzen
This case involves the contours of the community caretaking exception to the Fourth Amendment’s warrant requirement and a claim for damages under Section 1983. In this case, Kim Caniglia and her husband got in a fight during which he went and got a gun, threw it on their dining room table and said something like “shoot me now and get it over with.” She then left and stayed at a hotel. The next morning, she called the non-emergency line for the Cranston, Rhode Island police department and asked the police to accompany her to her home, recounting the fight from the evening before and her concern about “what she would find” when she got home. The police accompanied her and spoke to her husband, Edward Caniglia, on the porch of their home. The ranking officer determined Edward was “imminently dangerous to himself and others” and convinced him to go to the hospital for a psychiatric evaluation. Edward claims he only agreed to go because the officers told him his firearms wouldn’t be confiscated if he went.
After Edward went to the hospital police seized his firearms. According to the First Circuit, “The parties dispute both whether Kim indicated that she wanted the guns removed and whether the officers secured her cooperation by telling her that her husband had consented to confiscation of the firearms. There is no dispute, though, that the officers understood that the firearms belonged to the plaintiff and that he objected to their seizure.” Edward sued, claiming that he and his guns were unconstitutionally seized without a warrant in violation of the Fourth Amendment.
The First Circuit found no Fourth Amendment violation in this case relying on the community care exception. In explaining the contours of the community caretaking function, the First Circuit explained it was derived from:
Cady [v. Dombrowski (1973)], a case in which the Supreme Court upheld the warrantless search of a disabled vehicle when the police reasonably believed that the vehicle’s trunk contained a gun and the vehicle was vulnerable to vandals. The Cady Court explained that police officers frequently engage in such “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Police activity in furtherance of such functions (at least in the motor vehicle context) does not, the Court held, offend the Fourth Amendment so long as it is executed in a reasonable manner pursuant to either “state law or sound police procedure.”
The Supreme Court has never extended the “community caretaking exception” beyond the context of cars. The First Circuit decided to do so because of the “special role that police officers play in our society.” The court went on to reason that “a police officer — over and above his weighty responsibilities for enforcing the criminal law — must act as a master of all emergencies, who is “expected to aid those in distress, combat actual hazards, prevent potential hazards from materializing, and provide an infinite variety of services to preserve and protect community safety.”
The First Circuit held that sending Edward for a psychiatric evaluation fell within the community caretaker exception because “no rational factfinder could deem unreasonable the officers’ conclusion that the plaintiff presented an imminent risk of harming himself or others.” In terms of the warrantless entry into Edwards home and seizure of the firearms, the First Circuit also concluded the seizure fell within the community caretaker exception. “We conclude that the officers could reasonably have believed, based on the facts known to them at the time, that leaving the guns in the plaintiff’s home, accessible to him, posed a serious threat of immediate harm.” In coming to this conclusion, the court reasoned that police officers must “be granted some measure of discretion when taking plausible steps to protect public safety, particularly when human life may be at stake and the margin for error is slight.”
The issue in this case is whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home.
Filed January 7, 2021 (Supreme Court Merits)
Cedar Point Nursery v. Hassid
No. 20-107
Pro Bono Author: Matthew Littleton
This case involves an important Takings issue that will be decided by the Supreme Court. At issue is the California Agriculture Labor Relations Act (ALRA), which allows union organizers access to agricultural employees at employer worksites. The union organizers, under the Act, have access to employer worksites for four thirty-day periods each year for up to three hours each day. If/when they plan to access the property, the union organizers must give notice to employers.
The employers brought a claim against the California agency in charge of administering the ALRA claiming, among other things, that the Act amounted to an uncompensated per se physical Taking under the Fifth Amendment of the U.S. Constitution. The Ninth Circuit ruled against the agriculture employers, finding no permanent physical invasion in this case. The court compared this case to Nollan v. California Coastal Commission (1987), where the California Coastal Commission sought to condition the grant of a permit to rebuild a house on a transfer to the public of an easement across beachfront property. In that case the Supreme Court required the Coastal Commission to pay for an easement. Here, “[t]he regulation significantly limits organizers’ access to the Growers’ property. Unlike in Nollan, the Ninth Circuit reasoned the Act “does not allow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.”
A dissenting judge opined that the regulation causes a physical taking because it prevents growers from excluding people from their property regardless of the duration: “In my view, the Access Regulation allowing ongoing access to Growers’ private properties, multiple times a day for 120 days a year (four 30-day periods per year) is a physical, not regulatory, occupation because the “right to exclude” is “one of the most fundamental sticks” in the bundle of property rights. The Growers need not allege that the Access Regulation affects more property right “sticks” beyond this single, fundamental property right.”
The issue in the case is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.
IMLA’s brief did not opine on the law in question. Instead, we filed an amicus brief in support of neither party in order to prevent an expansive ruling int his case. Specifically, our concern is that local governments conduct many kinds of inspections (schools, restaurants, hospitals, code enforcement, etc.) where they temporarily go into private property. Likewise, police officers and other government officials frequently go onto private property to investigate crimes and perform other public safety functions. There may also be situations where the government in highly regulated industries have inspectors on site regularly if not full-time and these are necessary to the regulation of the industry, whether food processing, nuclear power or similar highly regulated activities. The distinction to be drawn involves the intrusion by government for health and safety reasons vs. the forced intrusion offered to third parties that may benefit a governmental program, but unrelated to health or safety. Our main interest in this case is to ensure any holding is limited to the particular facts and would not create onerous and expensive constitutional challenges for local governments in their day-to-day work.
Filed January 4, 2021 (Supreme Court Merits)
Cedar Point Nursery v. Hassid
Pro Bono Author: Matthew Littleton
At issue in this case is the California Agriculture Labor Relations Act (ALRA), which allows union organizers access to agricultural employees at employer worksites. The union organizers, under the Act, have access to employer worksites for four thirty-day periods each year for up to three hours each day. If/when they plan to access the property, the union organizers must give notice to employers.
The employers brought a claim against the California agency in charge of administering the ALRA claiming, among other things, that the Act amounted to an uncompensated per se physical Taking under the Fifth Amendment of the U.S. Constitution. The Ninth Circuit ruled against the agriculture employers, finding no permanent physical invasion in this case. The court compared this case to Nollan v. California Coastal Commission (1987), where the California Coastal Commission sought to condition the grant of a permit to rebuild a house on a transfer to the public of an easement across beachfront property. In that case the Supreme Court required the Coastal Commission to pay for an easement. Here, “[t]he regulation significantly limits organizers’ access to the Growers’ property. Unlike in Nollan, the Ninth Circuit reasoned the Act “does not allow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.”
A dissenting judge opined that the regulation causes a physical taking because it prevents growers from excluding people from their property regardless of the duration: “In my view, the Access Regulation allowing ongoing access to Growers’ private properties, multiple times a day for 120 days a year (four 30-day periods per year) is a physical, not regulatory, occupation because the “right to exclude” is “one of the most fundamental sticks” in the bundle of property rights. The Growers need not allege that the Access Regulation affects more property right “sticks” beyond this single, fundamental property right.”
The issue in the case is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.
Filed December 22, 2020 (Supreme Court Merits)
BP P.L.C. v. Mayor and City Council of Baltimore
No. 19-1189
Pro Bono Author: Robert Peck
The issue in this case is whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court when the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.
While this issue is technical / procedural, the substantive issues underlying the case involve important questions of federalism and preemption. By way of background, a number of cities and counties have sued major oil and gas companies for damages related to climate change and resulting resiliency measures that the cities and counties have had to undertake. The cities and counties claim the oil and gas companies knew for decades that their products caused climate change but denied or downplayed the threat while promoting their products. The complaints claim that the defendants engaged in an overt public relations campaign intended to cast doubt on climate science. These lawsuits have been brought under state common law (including public and private nuisance, trespass, negligence, etc.). The suits seek damages or compensation for current and future costs associated with climate change (such as health related deaths, flooding due to sea-level rise, etc.).
The oil and gas companies want to be in federal court even though the cases are brought under state law because they want to argue the state claims are preempted by federal common law claims for climate change, which are in turn displaced by federal statute. They presumably believe these federal preemption arguments will be more persuasive in federal court. In American Electric Power v. Connecticut (2011) the Supreme Court held a federal common law public nuisance lawsuit seeking an injunction against power companies to reduce greenhouse gas emissions (GHGs), brought by cities and states, was displaced by the Clean Air Act, which delegates authority to regulate GHGs to the U.S. Environmental Protection Agency (EPA). (The current lawsuits are not seeking to reduce greenhouse gases, but are seeking money damages under state law).
In this case, the Fourth Circuit concluded that the only ground for removal that was reviewable by the appellate court was the federal officer removal statute, § 1447(d) and it therefore did not consider the oil and gas companies other arguments for removal beyond federal officer removal. The court, citing to Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 229 (2007), explained that “[t]he authority of appellate courts to review district-court orders remanding removed cases to state court is substantially limited by statute,” namely, 28 U.S.C. § 1447(d).” The court then concluded that there was no basis for federal officer removal in this case.
Filed November 25, 2020 (Supreme Court Merits)
Uzuegbunam v. Preczewski
Pro Bono Author: Patrick Kane
Held: A request for nominal damages satisfies the redressability element necessary for Article III standing where a plaintiff’s claim is based on a completed violation of a legal right.
Chike Uzuegbunam was a student at Georgia Gwinnett College. In 2016 campus police told him he could not distribute religious literature in an open, outdoor plaza on campus per the college’s policy. Later Uzuegbunam distributed religious literature and spoke about his religious beliefs in one of two designated speech zones he reserved per the college’s policy. The campus police told him he “had only reserved the speech zone for certain specific purposes, not including ‘open-air speaking,’ and that he was in violation of GGC’s ‘Student Code of Conduct’ because his speech constituted ‘disorderly conduct.’”
Uzuegbunam and fellow student Joseph Bradford who also wanted to share his religious beliefs on campus sued seeking injunctive relief and nominal damages. While the lawsuit was pending the college revised its policy “such that students would be permitted to speak anywhere on campus without having to obtain a permit except in certain limited circumstances.”
The district court concluded that Uzuegbunam’s claims for injunctive relief were moot because he graduated and Bradford’s claims for injunctive relief were moot because the college changed its policy. Uzuegbunam and Bradford do not challenge these conclusions. Instead, they seek to continue their suit based on their claim for nominal damages (and attorney’s fees).
The Eleventh Circuit agreed with the district court that plaintiffs’ claims for nominal damages do not keep this case alive because nominal damages would not “have a practical effect on the parties’ rights or obligations.” According to the Eleventh Circuit, circuit precedent held that nominal damages have no practical effect absent “a well-pled request for compensatory damages.” Uzuegbunam and Bradford did not ask for compensatory damages; the parties disagree over whether they may have been entitled to them.
The issue in this case is whether a government’s post-filing change of an unconstitutional policy moots nominal-damages claims that vindicate the government’s past, completed violation of a plaintiff’s constitutional right.
Filed August 20, 2020 (Supreme Court Merits)
Fulton v. City of Philadelphia
Pro Bono Author: John Korzen
When a child in need of foster care comes into the City of Philadelphia’s custody, Human Services refers that child to one of the foster care agencies with which the City has a contractual relationship. Once the City refers a child to an agency, that agency selects an appropriate foster parent for the child.
The City of Philadelphia learned that two of its agencies would not work with same sex couples as foster parents, which it considered a violation of the City’s anti-discrimination laws. When the agencies confirmed that, because of their religious views on marriage, they would not work with gay couples, the City ceased referring foster children to them (though still continued to work with them in other capacities).
One of those agencies, Catholic Social Services (“CSS”), brought this action claiming that the City has violated its rights under the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses. It seeks an order requiring the City to renew their contractual relationship while permitting it to turn away same-sex couples who wish to be foster parents.
The Third Circuit concluded that, at least at the preliminary injunction stage, CSS had failed to show that the City violated the Free Exercise or Free Speech Clauses by requiring that an agency that provides foster care services for the City comply with its anti-discrimination laws protecting same-sex couples. The Third Circuit noted that there was no evidence of religious bias or hostility (as was present in Masterpiece Cakeshop where the Supreme Court found evidence of hostility toward religion), nor was there any evidence that the City had treated CSS differently because of its religion.
The Third Circuit relied on Employment Division v. Smith, in coming to its conclusion that the agency must comply with the City’s valid and neutral law of general applicability. On this point, the Third Circuit explained:
CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs. If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well.
Third Circuit framed the issue as follows: did the City have the authority to insist, consistent with the First Amendment and Pennsylvania law, that CSS not discriminate against same-sex couples as a condition of working with it to provide foster care services? Or, inversely, has CSS demonstrated that the City transgressed fundamental guarantees of religious liberty?
The Supreme Court accepted certiorari on three issues, of which two are relevant for our purposes: (1) whether Employment Division v. Smith should be revisited; and (2) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.
IMLA joined an amicus brief filed by the SLLC focused solely on the question of whether the Supreme Court should overrule Employment Division v. Smith.
Filed April 8, 2020 (Supreme Court Merits)
Trump v. Pennsylvania
No. 19-454
Pro Bono Author: Lisa Soronen
Holding: The Court did not reach the nationwide injunction issue.
Our sole interest in this case is the issue of nationwide injunction. Although we did not file on issues 1 and 2 in this case, the issues in the case are: (1) Whether the Departments of Health and Human Services, Labor and the Treasury had statutory authority under the Patient Protection and Affordable Care Act and the Religious Freedom Restoration Act of 1993 to expand the conscience exemption to the contraceptive-coverage mandate; (2) whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules – which were issued after notice and comment – invalid under the Administrative Procedure Act; and (3) whether the U.S. Court of Appeals for the 3rd Circuit erred in affirming a nationwide preliminary injunction barring implementation of the final rules.
Filed March 20, 2020 (Supreme Court Merits)
McGirt v. Oklahoma
No. 18-9526
Pro Bono Author: Paul Koster
Holding: For purposes of the Major Crimes Act, land throughout much of eastern Oklahoma reserved for the Creek Nation since the 19th century remains a Native American territory.
The issue in this case was whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction. The Supreme Court heard argument last term in Sharp v. Murphy, which presented this exact same issue, but failed to decide the case. (Justice Gorsuch was recused so they were likely deadlocked 4-4). Instead of affirming by a divided court, the Supreme Court accepted certiorari in a case that came up from Oklahoma state court presenting the exact same issue, which meant that Justice Gorsuch could participate.
This case presented a hugely important question for the entire state of Oklahoma and its local governments as to whether the Creek Nation’s reservation was disestablished. In a significant ruling, the Supreme Court held that it was not, thereby effectively stripping a huge swath of Oklahoma (and the majority of Tulsa) of jurisdiction over certain crimes committed by Native Americans. More concerning for local governments, the case has implications for the state and local governments’ taxing, land use regulations, code enforcement, law enforcement, and other authority, though the holding does not directly address those issues.
Filed March 9, 2020 (Supreme Court Merits)
Torres v. Madrid
No. 19-292
Pro Bono Author: Elizabeth Prelogar
Status: The application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.
Two police officers were going to arrest a woman at her apartment. They noticed two people standing in front of her apartment next to a Toyota Cruiser and decided to talk to them as one of them may have been the person the officers were seeking to arrest. The officers were wearing tactical vests with police markings. One of the people, Roxanne Torres, got into the car. She claims she was “tripping out” from meth. One of the officers told Torres several times to show her hands. The officers couldn’t see Torres clearly because of tinted windows.
When Torres heard the flicker of the car door, she started to drive thinking she was being carjacked. Torres drove at one of the officers who fired at Torres through the wind shield. The other officer shot at Torres as well to avoid being crushed between two cars and to stop Torres from hitting the other officer.
Torres was shot twice. She hit another car, got out of the Cruiser, and tried to “surrender” to the “car jackers.” She asked a bystander to call the police but left the scene as she had an outstanding warrant. She then stole a car, drove 75 miles, and checked into a hospital. She claims the officers used excessive force.
The Tenth Circuit held that Torres wasn’t seized under the Fourth Amendment because they “failed to ‘control her ability to evade capture or control.’” There was therefore no excessive force in this case. The Tenth Circuit relied on its own precedent stating:
… Torres failed to show she was seized by the officers’ use of force. Specifically, the officers fired their guns in response to Torres’s movement of her vehicle. Despite being shot, Torres did not stop or otherwise submit to the officers’ authority. … She was not taken into custody until after she was airlifted back to a hospital in Albuquerque and identified by police.
These circumstances are governed by Brooks v. Gaenzle, 614 F.3d 1213, 1223-24 (10th Cir. 2010), where this court held that a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim. This is so, because “a seizure requires restraint of one’s freedom of movement.” Thus, an officer’s intentional shooting of a suspect does not effect a seizure unless the “gunshot . . . terminate[s] [the suspect’s] movement or otherwise cause[s] the government to have physical control over him.”
The issue in this case is whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.
Filed March 2, 2020 (Supreme Court Merits)
Barr v. American Association of Political Consultants, Inc.
No. 19-631
Pro Bono Author: John Baker
Holding: The exception for calls to collect government debt from a federal ban on robocalls to cellphones violates the First Amendment, but the exception is severable from the rest of the Telephone Consumer Protection Act of 1991.
While this case has no factual relevance to local governments, the legal issue centered on Reed v. Town of Gilbert, and it is therefore of significant interest to local governments.
This case involved the Telephone Consumer Protection Act, which prohibits automatic dialing or prerecorded calls to cell phones with three exceptions—emergency, consent, and debt collection owed to or guaranteed by the United States. The American Association of Political Consultants claims the third exception violates the First Amendment.
The Supreme Court held that the debt-collection exemption violates the First Amendment. Applying Reed v. Town of Gilbert, the Court concluded that this exception was content-based and could not satisfy strict scrutiny. The Court concluded that the debt-collection exemption was severable from the rest of the TCPA.
At least three Justices seem poised to cabin Reed. Justice Breyer dissented, joined by Justices Ginsburg and Kagan, noting:
The problem with [the majority’s] approach, which reflexively applies strict scrutiny to all content-based speech distinctions, is that it is divorced from First Amendment values. This case primarily involves commercial regulation—namely, debt collection. And, in my view, there is no basis here to apply “strict scrutiny” based on “content-discrimination.”
Filed February 10, 2020
Filed October 17, 2019 (Supreme Court Petition Stage)
City of Chicago v. Fulton
No.
Pro Bono Author: Alex Dugan, Scott Smith, Stephen Parsley
Status: IMLA filed a petition stage amicus brief and certiorari was granted on December 18, 2019. This case was originally part of the 2019 term but was postponed to the 2020 term due to COVID-19. It will be argued October 13, 2020.
The case involves 4 bankruptcy cases that were consolidated on appeal to the Seventh Circuit. In each, the City of Chicago impounded the debtor’s respective vehicles based on significant accumulated unpaid fines and penalties for parking tickets, moving violations, and driving with suspended licenses. The City has an ordinance which provides that the City may impound vehicles of individuals with three or more unpaid violations for the “purpose of enforcing” its traffic regulations until the owner of the vehicle pays the outstanding fines and penalties. The Chicago Municipal Code further provides that “[a]ny vehicle impounded by the City or its designee shall be subject to a possessory lien in favor of the City in the amount required to obtain release of the vehicle.”
In each of the 4 cases at issue here, after the City had impounded the owner’s vehicles, each owner filed for bankruptcy. The Bankruptcy Code’s automatic stay provision provides that a petition for bankruptcy operates as a stay of “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3). The City did not release the debtor’s vehicles back to the trustee of the bankruptcy estate and each bankruptcy court held that the City violated the stay by “exercising control” over property of the bankruptcy estate and ordered the City to turn over the vehicles immediately.
The City of Chicago argued that holding a vehicle that was impounded before the debtors filed their bankruptcy petitions did not violate the Bankruptcy Code’s automatic stay provision. Further, the City argues that the Bankruptcy Code provides a mechanism for a debtor to seek the turnover of property being held by a creditor through a possessory lien through an adversary proceeding and the court should therefore find an exception for the City’s retention of the vehicles from the automatic stay under 11 U.S.C. § 362(b)(3). The City also argued that subsection (b)(4) which provides that the stay authorized by the Act does not extend to:
. . . the commencement or continuation of an action or proceeding by a governmental unit . . ., to enforce such governmental unit’s or organization’s police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit’s or organization’s police or regulatory power;
This police power exception often arises in bankruptcy proceedings where a debtor seeks to avoid local regulations affecting its business.
The Seventh Circuit rejected these arguments and held in favor of the debtors. By way of background, the Seventh Circuit had previously addressed this issue in Thomson v. General Motors Acceptance Corp., which had held in a case where a creditor had repossessed a vehicle prior to the filing of the bankruptcy petition that a “creditor must comply with the automatic stay and return a debtor’s vehicle upon her filing of a bankruptcy petition.” The City requested the Seventh Circuit overrule Thomson, which the court in this case declined to do. The Seventh Circuit explained that the “[t]he primary goal of reorganization bankruptcy is to group all of the debtor’s property together in his estate such that he may rehabilitate his credit and pay off his debts; this necessarily extends to all property, even property lawfully seized pre‐petition.”
The issues in this case are:
- Whether passively holding a vehicle after a chapter 13 case is filed violates the Bankruptcy Code’s automatic stay provision.
- Whether the exception to the automatic stay in sections 362(b)(3) and (b)(4) of the Bankruptcy Code for acts to maintain or continue the perfection of an interest in property allows the City to retain an impounded vehicle after a chapter 13 case is filed.
Filed January 28, 2020 (Supreme Court Merits)
Carney v. Adams
No. 19-309
Pro Bono Author: Kirti Datla & Kristina Alekseyeva
Held: Because Adams has not shown that he was “able and ready” to apply for a judicial vacancy in the imminent future, he has failed to show a “personal,” “concrete” and “imminent” injury necessary for Article III standing.
The relevant issue in this case for IMLA is whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the state’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party.”
The Delaware Constitution deals with appointments of judges in a way that attempts to ensure that courts are not stacked with people from the same party. Per the Delaware Constitution, to be on the Delaware Supreme Court, judicial candidates must be a member of Delaware’s two major political parties. Only a bare majority of these judges may be from the same major political party. The Constitution addresses other courts but in such a complex way that the lower court and 3rd Circuit each found that the Plaintiff lacked Article III standing to challenge them whereas they found both Article III and prudential standing to challenge the limitation on serving on the Supreme Court. The issue is whether limiting government service in a position to membership in one of two political parties violates the Constitution. It may. But, because the case found no standing where the Plaintiff was not limited in applying for a position where the limitation was a prohibition on having more than a bare majority from one political party, that issue will be significant as well.
This impacts local governments because there are likely a host of elections boards that have members who must be of one major party or another. Another example is that certain local governments prohibit their Ethics Commission from having more than a simple majority of members from the same political party.
Filed January 22, 2020 (Supreme Court Merits)
United States v. Sineneng-Smith
No. 19-67
Pro Bono Author: Erin Kuka
Holding: The Court did not reach the merits of the case and instead remanded it based on the Ninth Circuit’s unusual decision to invite amici to brief separate issues not presented by Sineneng-Smith and then to decide the case based on those arguments presented by amici.
Evelyn Sineneng-Smith worked as an “immigration consultant” helping undocumented workers obtain green cards. From 2001-2008 she signed retainer agreements with her clients and told them that they could obtain green cards via Labor Certifications. But the Labor Certifications program expired on April 30, 2001—which she knew. A jury found her guilty of violating 8 U.S.C. § 1324(a)(1)(A)(iv) & § 1324(a)(1)(B)(i).
1324(a)(1)(A)(iv) provides that any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”
1324(a)(1)(B)(i) is a sentence enhancement, which increases the sentence for any person who violates subparagraph (A)(ii), (iii), or (iv) “for the purpose of commercial advantage or private financial gain.”
She argued that 1324(a)(1)(A)(iv) is overly broad in violation of her First Amendment free speech rights.
In a three-part analysis the Ninth Circuit held that 1324(a)(1)(A)(iv) is unconstitutionally overbroad in violation of the First Amendment. First, the court concluded that the statutes implicate speech (not just conduct). According to the Ninth Circuit “the structure of the statute, and the other verbs in the separate subsections, do not convince us to stray from the plain meaning of encourage and induce – that they can mean speech, or conduct, or both.” Second, the Ninth Circuit concluded that speech covered by these statutes is “protected” speech. Specifically, it doesn’t involve “incitement” and isn’t “integral to criminal conduct.” Finally, the Ninth Circuit concluded that “the amount of protected speech the statute restricts is substantial in relation to its legitimate sweep.” The court cites the example “a loving grandmother who urges her grandson to overstay his visa,” by telling him “I encourage you to stay.” According to the Ninth Circuit: “Nothing in Subsection (iv) would prevent the grandmother from facing felony charges for her statement.”
The issue in this case is whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.
Although this case involves a criminal statute and its application to an individual, federal government officials have indicated that so-called “sanctuary cities” may be violating 1324. According to the Ninth Circuit:
Additionally, the City and County of San Francisco in its amicus brief represents that the government has repeatedly threatened its officials with violations of 8 U.S.C. § 1324. For example, “ICE Director Thomas Homan announced that he had asked Attorney General Sessions to determine whether sanctuary cities like San Francisco are ‘committing a statutory crime’ under section 1324.” Further, San Francisco relates that “Director Homan renewed his threat in even starker terms. According to Director Homan, ‘when a sanctuary city intentionally or knowingly shields an illegal alien from federal law enforcement, that is a violation of 8 U.S.C. 1324.’ Director Homan announced that he was ‘putting together a response plan’ with ‘the highest levels of the Department of Justice,’ and ominously declared, ‘This is not over.’” True, San Francisco reports that “[t]o the extent these threats have been tied to any specific prong of section 1324, they have been tied to the ‘harboring’ or ‘transporting’ prongs of that statute.” Id. But not all of the threats were tied to a specific subsection, and the government might well turn to Subsection (iv).
On one hand, apparently ICE has never accused local governments specifically of violating 8 U.S.C. § 1324(a)(1)(A)(iv) (which includes the “encouraging” or “inducing” language). Instead ICE has apparently accused at least San Francisco of possibly violating portions of § 1324 that relate to “harboring” and “transporting” “aliens,” which is 1324(a)(1)(A)(iii). However, it is not such a stretch to imagine that the federal government could interpret a city declaring itself a sanctuary or welcoming city as “encouraging” or “inducing” “aliens” to come to the United States and their city in particular. As stated by the Ninth Circuit on this point:
A speech addressed to a gathered crowd, or directed at undocumented individuals on social media, in which the speaker said something along the lines of “I encourage all you folks out there without legal status to stay in the U.S.! We are in the process of trying to change the immigration laws, and the more we can show the potential hardship on people who have been in the country a long time, the better we can convince American citizens to fight for us and grant us a path to legalization,” could constitute inducement or encouragement under the statute.
While this statute and its interpretation would seem to be an issue for so-called sanctuary jurisdictions, it also could present problems for other local governments who simply want to provide services to residents in their community, regardless of immigration status. For example, if a person comes to a municipal foodbank and tells the person working there that he or she is undocumented, if the municipality has a policy to nonetheless provide food for hungry people regardless of immigration status, there is a concern that the municipality could be found to have violated the “induce” or “encourage” portion of this statute. The same could be said for a program that provides immunizations for free to community members or a community that provides shelters for domestic violence victims regardless of their immigration status. In each example, in theory, the federal government could argue that by providing these services to undocumented immigrants, the local government has “encouraged” that person to stay in violation of the statute.
IMLA’s amicus brief focused on these broader issues and implications for local governments without delving into politically sensitive ones.
Filed January 22, 2020 (Supreme Court Merits)
Lomax v. Ortiz-Marquez
No. 18-8369
Pro Bono Author: Misha Tseytlin
Holding: A Prison Litigation Reform Act provision that generally prevents a prisoner from bringing suit in forma pauperis — that is, without first paying the filing fee — if he has had three or more prior suits “dismissed on the ground[ ] that [they] … fail[ed] to state a claim upon which relief may be granted,” refers to any dismissal for failure to state a claim, whether with prejudice or without.
Arthur Lomax had previously filed three lawsuits alleging a variety of constitutional violations stemming from his expulsion from the Sex Offender Treatment and Monitoring Program at Centennial Correctional Facility. The federal district court dismissed the first and second lawsuits as barred by Heck v. Humphrey, holding that a litigant cannot bring a § 1983 claim challenging a conviction’s legitimacy until that conviction has been dismissed. The third lawsuit was dismissed for a failure to state a claim. The first two cases were dismissed without prejudice.
28 U.S.C. § 1915(g) of the PLRA states:
In no event shall a prisoner bring a civil action or appeal a judgment in civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
This provision is known as the “three strikes rule.” Once a prisoner has three strikes, he can no longer proceed in forma pauperis and must pay any applicable court fees if he wishes to bring further lawsuits against prison officials.
Lomax filed suit in federal district court a fourth lawsuit against prison officials alleging various constitutional violations. Lomax argues he should be able to bring this lawsuit in forma pauperis regardless of the three-strikes rule in the PLRA because two of his previous lawsuits were dismissed without prejudice.
The trial court rejected his argument that two of his previous lawsuits did not count as strikes under the PLRA and held that if he wanted to proceed with the lawsuit, he must pay the $400 filing fee or show he was in imminent danger of serious physical injury (a requirement under the statute to proceed in forma pauperis despite 3 strikes). The Tenth Circuit affirmed, concluding that the fact that two of the previous dismissals were without prejudice was “immaterial.”
The issue in this case was whether a dismissal without prejudice for failure to state a claim counts as a strike under 28 U.S.C. 1915(g).
Filed October 4, 2019 (Supreme Court Merits)
Department of Homeland Security v. Regents of the University of California
No. 18-587
Pro Bono Author: Mike Dundas
Holding: The Department of Homeland Security’s decision to rescind the Deferred Action for Childhood Arrivals program was arbitrary and capricious under the Administrative Procedure Act
In 2012, then President Obama adopted the Deferred Action for Childhood Arrivals program or DACA to postpone deportation of undocumented immigrants brought to America as children if they met certain conditions. DACA also allowed them to obtain work permits, social security numbers, pay taxes, and become part of the mainstream economy. In 2017, the Trump administration rescinded DACA, arguing that it was illegal from its inception, and therefore could no longer continue in effect. The decision to rescind DACA was based on a 2015 Fifth Circuit decision concluding that the Deferred Action for Parents of Americans or DAPA, a similar program to DACA, exceeded DHS’ statutory authority.
Challengers including state and local governments brought suit, arguing that rescinding DACA was arbitrary and capricious under the Administrative Procedure Act. The federal government argued that the decision to rescind DACA is not reviewable and even if it is, it did not violate the APA.
Three lower courts have concluded ending the policy is both reviewable and likely unlawful. The Ninth Circuit concluded that the decision to rescind DACA is not committed to agency discretion and is therefore reviewable by courts. The Ninth Circuit also concluded that the plaintiffs were likely to show that the decision to rescind the policy was arbitrary and capricious under the APA because it was based on a flawed legal premise. The Ninth Circuit emphasized:
To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion. We hold only that here, where the Executive did not make a discretionary choice to end DACA—but rather acted based on an erroneous view of what the law required—the rescission was arbitrary and capricious under settled law. The government is, as always, free to reexamine its policy choices, so long as doing so does not violate an injunction or any freestanding statutory or constitutional protection.
The issues in this case are: 1) whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.
Filed August 12, 2019 (Supreme Court Merits)
New York State Rifle & Pistol Association, Inc. v. City of New York
Pro Bono Author: Lawrence Rosenthal
Holding: Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule on transporting firearms is moot, and any claim for damages with respect to that rule may be addressed in the first instance by the court of appeals and the district court on remand.
A New York City administrative rule allows residents to obtain a “carry” or “premises” handgun license. The “premises” license allows a licensee to “have and possess in his dwelling” a pistol or revolver. A licensee may only take his or her gun to specific shooting ranges located in the city.
In 2008 in District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual’s right to possess a firearm for purposes of self-defense in the home. Among many questions left unanswered the Court did not state whether an individual has a Second Amendment right to possess a gun outside the home.
Challengers want to bring their handgun to their second home and to target practice outside the city and claim the premises license violates their Second Amendment rights (they also bring challenges under the First Amendment, the Commerce Clause, and the constitutional right to travel). The Second Circuit held the law is constitutional on all accounts.
Applying intermediate scrutiny on the Second Amendment claim, the Second Circuit held the rule was “substantially related to the achievement of an important governmental interest.” It seeks to “protect public safety and prevent crime.” And the court agreed with the former Commander of the License Division that premises license holders “are just as susceptible as anyone else to stressful situations,” including driving situations that can lead to road rage, “crowd situations, demonstrations, family disputes,” and other situations “where it would be better to not have the presence of a firearm.” The Second Circuit concluded the rule doesn’t discriminate against interstate commerce in violation of the Commerce Clause or violate a constitutional right to travel because nothing in the law prevents the plaintiffs from attending shooting tournaments outside the city (and renting a gun there) or purchasing a separate gun for a residence outside the city.
The issue before the Supreme Court is whether New York City’s ban on transporting a handgun to a home or shooting range outside city limits violates the Second Amendment, the Commerce Clause, or the constitutional right to travel.
Filed April 3, 2019 (Supreme Court Merits)
Mitchell v. Wisconsin
No. 18-6210
Pro Bono Author: Lauren Kuley
Held: in a 4-1-4 opinion, the Supreme Court held that where a driver is unconscious and therefore cannot give a breath test, the exigent circumstances rule almost always permits a blood test even absent a warrant.
Police officers responded to a call that a driver, who appeared intoxicated, got into a van and drove away. Forty-five minutes later an officer found Gerald Mitchell walking near a beach. He appeared to be intoxicated and admitted to the officer that he had been drinking and his van was parked nearby. A preliminary breath test, insufficient evidence for trial, indicated Mitchell had a blood alcohol level of .24. The officer took Mitchell to the police station for an evidentiary breath test, but Mitchell had passed out. His blood was drawn at the hospital where he remained unconscious throughout the procedure.
Wis. Stat. § 343.305(3)(b) allows the taking of a person’s blood if the person is unconscious and the police have probable cause to suspect drunk driving. Mitchell argued that the blood draw constituted an unlawful search in violation of his Fourth Amendment rights.
The Wisconsin Supreme Court held that a warrantless blood draw from an unconscious person the police have probable cause to suspect was driving drunk doesn’t violate the Fourth Amendment.
The issue on appeal was whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.
Filed April 1, 2019 (Supreme Court Merits)
Department of Commerce v. New York
No. 18-966
Pro Bono Author: John Korzen
Held: The secretary of the Department of Commerce did not violate the enumeration clause or the Census Act in deciding to reinstate a citizenship question on the 2020 census questionnaire, but the district court was warranted in remanding the case back to the agency where the evidence tells a story that does not match the secretary’s explanation for his decision.
In March 2018 Secretary of Commerce Wilbur Ross issued a memorandum stating he would add a citizenship question to the Census (for the first time since 1960). He claimed the Department of Justice (DOJ) wanted the data to enforce the Voting Rights Act’s prohibition against diluting the voting power of minority groups. The Census Bureau “strenuously” objected to adding the question, warning “that adding a citizenship question would harm the quality of census data and increase costs significantly and that it would do so for no good reason because there was an alternative way to satisfy DOJ’s purported needs that would not cause those harms.”
A number of state and local governments and nonprofits sued the Secretary claiming that adding this question is arbitrary and capricious in violation of the Administrative Procedure Act (APA). The federal government argued that the state and local governments do not have standing to sue and that the decision by Secretary Ross is not judicially reviewable.
After concluding the state and local governments had standing, the court found numerous APA violations in the manner in which the question was added to the census. For example, “[Ross] failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations.”
Judge Furman summarizes the significance of having an accurate census for state and local governments in his 277-page opinion: “By its terms, therefore, the Constitution mandates that every ten years the federal government endeavor to count every single person residing in the United States, whether citizen or noncitizen, whether living here with legal status or without. The population count derived from that effort is used not only to apportion Representatives among the states, but also to draw political districts and allocate power within them. And it is used to allocate hundreds of billions of dollars in federal, state, and local funds. Given the stakes, the interest in an accurate count is immense. Even small deviations from an accurate count can have major implications for states, localities, and the people who live in them — indeed, for the country as a whole.”
IMLA filed an amicus brief focused solely on the issue that local governments have standing to pursue their claims against the Department.
Filed March 23, 2019 (Supreme Court Merits)
McDonough v. Smith
No. 18-485
Pro Bono Author: Geoffrey Eaton
Held: The statute of limitations for Edward McDonough’s Section 1983 fabricated-evidence claim against his prosecutor began to run when the criminal proceedings against him terminated in his favor – that is, when he was acquitted at the end of his second trial.
Edward McDonough, former Democratic Commissioner of Rensselaer County Board of Elections, approved forged absentee ballot applications, which he claims he didn’t know had been falsified. Smith investigated and prosecuted McDonough. McDonough claimed Smith “engaged in an elaborate scheme to frame McDonough for the crimes by, among other things, fabricating evidence.”
McDonough’s first trial ended in a mistrial. McDonough was then retried, again with Smith as the prosecutor. That trial ended in McDonough’s acquittal on December 21, 2012. On December 18, 2015, just under three years later, McDonough filed this action under 42 U.S.C. § 1983, claiming that the Defendants (including Smith): (1) had violated his right to due process by fabricating evidence and later using it against him before the grand jury and in his two trials; and (2) were liable for malicious prosecution.
McDonough argued fabrication of evidence was most analogous to a malicious prosecution, for the purposes of the statute of limitations, which does not accrue until a favorable termination of the prosecution. The Second Circuit held that McDonough’s due process claim was time barred because the three-year statute of limitations started running when the fabricated evidence had been disclosed to him (which may have been as early as when he was indicted) not on the day of his acquittal.
The issue before the Supreme Court was whether the statute of limitations for a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant’s favor, as the majority of circuits have held, or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use, as the U.S. Court of Appeals for the 2nd Circuit held below.
Filed March 8, 2019 (Supreme Court Merits)
Lamone v. Benisek
Rucho v. Common Cause
No. 18-726 / 18-422
Pro Bono Author: Michael Parsons
Held: Partisan gerrymandering claims are non-justiciable political questions.
These cases involved claims of partisan gerrymandering. Rucho challenges the North Carolina Congressional Redistricting Plan as an unconstitutional gerrymander. A three-judge district court struck down North Carolina’s 2016 congressional map, ruling first that the challengers do have standing under the framework set forth in Gill v. Whitford (2018) and then concluding that the map was the product of unconstitutional partisan gerrymandering. The three-judge district court blocked the state from using the map after November 2018. The challengers of the map argue that the North Carolina Republicans had an “official state policy to maximize” their party’s representation in Congress, and under the plan, Republicans in 2016 won 10 out of the state’s 13 congressional seats “even though the statewide vote was nearly tied”, which according to the challengers was the “the worst partisan asymmetry” in the United States that year. The three-judge court held that the Plan constituted an unconstitutional partisan gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, and Article I of the Constitution
Benisek v. Lamone involves a challenge brought by Republicans arguing that the Democratic election officials violated the Constitution when they redrew Maryland’s 6th congressional district to flip it from Republican to strongly Democratic, in retaliation for the challengers’ support for Republican candidates and in violation of the First Amendment.
The issues before the Supreme Court were: (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander; and (4) whether the legal claims articulated by the three-judge panel in the Benisek case are unmanageable.
Filed March 4, 2019 (Supreme Court Merits)
Fort Bend County v. Davis
No. 18-525
Pro Bono Author: Collin Udell
Held: The charge-filing precondition to suit set out in Title VII of the Civil Rights Act of 1964 is not a jurisdictional requirement and is therefore waivable.
Lois Davis complained to her former employer, Fort Bend County, that the IT director sexually harassed and assaulted her. Davis also claimed that her supervisor retaliated against her for complaining about the IT director (supervisor and IT director were friends) by terminating her when she told him that she could not work on a Sunday because of a religious observance. Alleging sexual harassment and retaliation, Davis submitted her intake questionnaire and filed a charge with the Texas Workforce Commission (state equivalent of the EEOC). She amended the questionnaire to include religious discrimination, but she didn’t amend the charge (she added the word “religion” in the box labeled “employment harms or actions”). After the Texas Workforce Commission issued her a right-to-sue letter, Davis brought both a retaliation and a religious discrimination lawsuit under Title VII.
Before bringing an employment discrimination lawsuit under Title VII an employee must exhaust his or her administrative remedies by filing formal charges with the EEOC (or equivalent state agency).
The Fifth Circuit held that the failure to exhaust administrative remedies is a rule the employer can waive and not a jurisdictional rule that would bar the lawsuit from proceeding. In this case, the employer waited five years before claiming the religious discrimination claim was barred by her failure to exhaust administrative remedies and the employer had therefore waived that defense. The court reasoned: “Here, Congress did not suggest—much less clearly state—that Title VII’s administrative exhaustion requirement is jurisdictional, and so we must treat this requirement as nonjurisdictional in character. The statute says nothing about a connection between the EEOC enforcement process and the power of a court to hear a Title VII case.”
The issue before the Supreme Court was whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.
Filed January 31, 2019 (Supreme Court Merits)
Kisor v. Wilkie
No. 18-15
Pro Bono Author: Allyson Ho
Held: Auer v. Robbins and Bowles v. Seminole Rock & Sand Co – under which deference is given to an agency’s reasonable reading of its own genuinely ambiguous regulations – are not overruled.
The facts of the case are largely irrelevant and involve a Marine veteran, who sought disability benefits for his service-related post-traumatic stress disorder (PTSD). Although the Department of Veterans Affairs (VA) agreed that he suffered from service-related PTSD, it refused to award him retroactive benefits. That decision by the VA turned on the meaning of the term “relevant” as used in 38 C.F.R. § 3.156(c)(1), a regulation promulgated by the VA.
On appeal, the Federal Circuit found that the veteran and the VA both offered reasonable constructions of the term “relevant” under the regulation and on that basis alone, the court held that the regulation is ambiguous. Therefore, pursuant to Auer, the court deferred to the VA’s interpretation of its own ambiguous regulation.
The issue was whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation. Although the Supreme Court declined to overrule these cases, it did provide courts with guidance on deference and cabined the holdings of Auer and Seminole Rock.
Filed January 15, 2019 (Supreme Court Merits)
PDR Network, LLC v. Carlton & Harris Chiropractic Inc
No. 17-1705
Pro Bono Author: Ashley Johnson
Held: The extent to which a 2006 Federal Communications Commission order interpreting the term “unsolicited advertisement” binds lower courts may depend on the resolution of two preliminary questions that the U.S. Court of Appeals for the 4th Circuit should address in the first instance: (1) whether the order is the equivalent of a legislative rule, which has the force and effect of law, or an interpretative rule, which does not; and (2) whether PDR Network, LLC had a “prior” and “adequate” opportunity to seek judicial review of the order.
Carlton & Harris, a chiropractor group, sued PDR Network in federal district court, asserting a claim under the Telephone Consumer Protection Act (TCPA) based on a fax it received from PDR. Specifically, PDR offers the Physician’s Desk Reference Book for free and it sent an unsolicited fax offering a free copy of the book. The TCPA prohibits the use of a fax machine (or text messages) to send “unsolicited advertisements.” 47 U.S.C. § 227(b)(1)(C). PDR moved to dismiss, arguing that the offer was for a free book, and therefore could not be considered an unsolicited advertisement. In response, Carlton & Harris pointed to a 2006 FCC rule interpreting the term “unsolicited advertisement” under the TCPA as one that includes the promotion of goods or services even at no cost.
Carlton & Harris also argued that under the Hobbs Act, the district court was required to defer to the 2006 FCC’s Rule regardless of any Chevron deference principles. The Hobbs Act, also known as the Administrative Orders Review Act, provides a mechanism for judicial review of certain administrative orders, including all final orders of the FCC, as well as final rules by other agencies, including the Secretary of Transportation, Secretary of Agriculture, Federal Maritime Commission, the Atomic Energy Commission, and others. If a party seeks to challenge a final order to enjoin it, set it aside, suspend it, or determine the validity of it, they must do so in the federal courts of appeals in the first instance within 60 days of the final rule.
The district court rejected the plaintiff’s arguments, concluding that the Hobbs Act did not compel it to defer to the FCC’s interpretation in this case because the TCPA is an unambiguous statute. The court reasoned under Chevron, it was not required to defer to an agency’s interpretation of a statute if the statute is unambiguous. The court concluded that the plaintiff had not stated a valid claim under the TCPA and dismissed the complaint.
The Fourth Circuit reversed and held that the Hobbs Act precluded the district court from reaching step-one in the Chevron analysis (i.e., determining whether the statute is ambiguous) and instead, the Act required the district court to simply accept the agency’s interpretation of the TCPA. The court reasoned that Congress, through the Hobbs Act, stripped district courts of their jurisdiction to review these final agency determinations. “The district court had no power to decide whether the FCC rule was entitled to deference. By refusing to defer to the FCC rule and applying Chevron analysis instead, the court acted beyond the scope of its congressionally granted authority.” Importantly, the court also noted that the Hobbs Act not only prevents the district court from “questioning the validity of the 2006 FCC Rule,” but it likewise stripped the circuit court of its ability to question the validity of the rule outside the statutory time period and process established in the Act; i.e., once final and not challenged the Order could not be reviewed. After making this determination, the court concluded that under the FCC’s interpretation of the TCPA, PDR’s fax offering a free good was an advertisement.
The issue before the Supreme Court was whether the Hobbs Act required the district court in this case to accept the Federal Communication Commission’s legal interpretation of the Telephone Consumer Protection Act.
Filed December 21, 2018 (Supreme Court Merits)
Filed July 28, 2018 (Supreme Court Petition Stage)
American Humanist Association v. Maryland-National Capital Park and Planning Commission
No. 18-18
Pro Bono Author: Paul Zidlick & Michael Buschbacher
In 1925, the American Legion and a group of bereaved mothers erected a memorial to honor the 49 residents of Prince George’s County, Maryland, who perished in World War I. To evoke the grave markers on the battlefields in Europe, the memorial bears the shape of a cross. The cross is 40 feet tall and a large plaque affixed to the memorial dedicates it to and lists the names of the 49 county residents who fell in World War I. The sides of the memorial are inscribed with the words “valor,” “endurance,” “courage,” and “devotion.” The memorial is situated in Veterans Memorial Park, which also contains monuments to the War of 1812, World War II, the attack on Pearl Harbor, the Korean and Vietnam wars, and the events of September 11, 2001. The WWI memorial / cross is by far the largest memorial in the park.
Until the present suit, no person challenged the legality of the monument, which from its beginning has been consistently used by the community and the local American Legion as the site of patriotic events to honor veterans. The community has never used the memorial for a religious ceremony, and the only mention of a religious event in connection with the memorial occurred 87 years ago. However, there are some invocations that occur during war memorial events, which have been predominantly Christian. These invocations are offered by private citizens during Veteran’s Day or Memorial Day events commemorating veterans.
In 1961, the Maryland-National Capital Park and Planning Commission acquired the memorial and the roadway median on which it sits due to traffic safety concerns arising from the placement of the Cross in the middle of a busy intersection. From that date until present, the Commission has expended $117,000 in costs associated with maintenance and repair of the memorial.
In 2014, the American Humanist Association and three individuals filed suit against the Maryland-National Capital Park and Planning Commission. Respondents contended that, because of its cross shape, the memorial constitutes an unconstitutional endorsement of Christianity. The American Legion and its local affiliates were subsequently permitted to intervene as defendants. The District Court granted summary judgment to the defendants, explaining that it is “uncontroverted” that the maintenance and display of the memorial is not “driven by a religious purpose whatsoever,” and that the memorial’s “history and context” would lead any reasonable observer to conclude that the monument does not “hav[e] the effect of impermissibly endorsing religion,” but instead serves exclusively as a war memorial.
A divided panel of the Fourth Circuit reversed, finding that under Lemon v. Kurtzman, the cross violated the Establishment Clause as its primary / principal effect was endorsing Christianity and because it represented excessive entanglement between the government and religion. The panel acknowledged that the Commission had “articulated legitimate secular purposes for displaying and maintaining” the monument. But the court reasoned that “[t]he Latin cross is the ‘preeminent symbol of Christianity,’” and that the cross lacks any meaningful “connection” to “our Nation’s history and government” and is so inherently “sectarian” that it “overwhelm[s]” the monument’s numerous “secular elements.” Further, the panel reasoned that, by making even “de minimis” expenditures to maintain the memorials, the Commission “entangl[ed]” itself in religion and led “any reasonable observer” to believe that “the Commission either places Christianity above other faiths” or “views being American and Christian as one in the same.”
Judge Gregory dissented and explained that in light of its history and context, it is plain that the monument is “a war memorial built to celebrate the forty-nine Prince George’s County residents who gave their lives in battle.” He further noted that the majority’s decision to the contrary “would lead to per se findings that all large crosses are unconstitutional despite any amount of secular history and context.” The Fourth Circuit voted 8-6 to deny rehearing en banc. Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer each filed dissents objecting to the majority’s legal errors and describing its dramatic implications for other monuments and memorials throughout the country.
The issue is whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.
Filed November 20, 2018 (Supreme Court Merits)
Tennessee Wine & Spirits Retailers Association v. Byrd
No. 18-96
Pro Bono Author: Richard Simpson
Tennessee law requires anyone receiving a retailer-alcoholic-beverages license to be a Tennessee resident for at least two years. A number of alcohol retailers sued, claiming the residency requirement violates the dormant commerce clause by discriminating against interstate commerce.
The Sixth Circuit ruled that Tennessee’s durational-residency requirements are “facially discriminatory and there is no evidence that Tennessee cannot achieve its goals through nondiscriminatory means” and therefore the law is unconstitutional in violation of the dormant commerce clause. The court concluded the Tennessee’s durational-residency requirement isn’t “inherent” to the three-tier system of regulating alcohol and that the Twenty-first Amendment “does not give a state the power to dictate where individuals live, because a state’s alcoholic-beverages laws ‘cannot deprive citizens of their right to have access to the markets of other States on equal terms.’”
The issue in this case is whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entitles that have resided in-state for a specified time.
Filed November 1, 2018 (Supreme Court Merits)
Gamble v. United States
No. 17-646
Pro Bono Author: Gordon Todd & Spencer Driscoll
CLICK HERE to view the Amicus Brief.
Gamble was prosecuted for and convicted of possession of a firearm by a convicted felon under both Alabama and United States law. Gamble appealed his conviction arguing that under the Fifth Amendment’s Double Jeopardy Clause, which provides “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”, the federal government was prohibited from prosecuting him for the same conduct for which he had been prosecuted and sentenced by Alabama.
The Eleventh Circuit held in favor of the United States, noting that “the Supreme Court has determined that prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal government are separate sovereigns.”
The court added that “unless and until the Supreme Court overturns” its precedent, the double jeopardy claim must fail based on the dual sovereignty doctrine. The lower court pointed to Puerto Rico v. Sanchez-Valle (2016) where the Supreme Court stated: “the States possessed separate and independent sources of power and authority” before forming the Union “which they continue to draw upon in enacting and enforcing criminal laws.” In Sanchez-Valle the Court held that the Double Jeopardy Clause bars both Puerto Rico and the United States from prosecuting a single person for the same conduct under equivalent criminal laws because Puerto Rico isn’t a sovereign distinct from the United States because it had derived its authority from the U.S. Congress.
The issue is whether the Supreme Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause.
Filed October 11, 2018 (Supreme Court Merits)
Timbs v. Indiana
No. 17-1091
Pro Bono Author: Lawrence Rosenthal
CLICK HERE to view the Amicus Brief.
Indiana forfeited Tyson Timbs’ Land Rover under its Civil Asset forfeiture law because he used the Land Rover to buy and transport heroin. Timbs eventually pleaded guilty to a Class B felony. The maximum statutory fine for a Class B felony in Indiana was $10,000, while the value of the Land Rover when Timbs purchased it several months earlier was $42,058.30. Timbs argued that the forfeiture of the Land Rover was excessive under the Eighth Amendment and disproportional to the gravity of his offense.
The Indiana Supreme Court held that because the United States Supreme Court has never enforced the “excessive fines” clause of the Eighth Amendment against the States, the court declined to do so in this case. The Indiana court reasoned that although certain amendments from the Bill of Rights are “incorporated” into the Fourteenth Amendment and therefore applicable to the states, there are also several amendments that the Supreme Court has held are not applied to the states. The Indiana court concluded that despite some discussion of applying the Eighth Amendment to the states in 2001, the Supreme Court had declined to definitively decide whether the Excessive Fines Clause applied to the states. The Indiana court noted a split of authority on this issue. Somewhat incongruously, the state court did not discuss the difference between a civil asset forfeiture as was the case before it in contradistinction with a criminal proceeding in which forfeitures and fines might be applied as punishment. Instead, it addressed Timbs’ argument head on as if the 8th Amendment applied to civil forfeitures, finding that since the Court had not applied incorporation to the 8th Amendment “excessive fines” clause it did not apply, but without analyzing whether the 8th Amendment applies to civil forfeitures.
The issue in the case is whether the Eight Amendment’s Excessive Fines Clause applies to the states and therefore local governments.
Filed August 27, 2018 (Supreme Court Merits)
Nieves v. Bartlett
No. 17-1174
Pro Bono Author: Bennett Cohen
CLICK HERE to view the Amicus Brief.
The Artic Man is a multi-day festival centered around high-speed ski and snowmobile races that attracts thousands of people to a remote portion of Alaska every year. Bartlett was attending and when Trooper Nieves encountered him at a large outdoor party where it appeared minors were drinking, Bartlett refused to speak to Nieves. Meanwhile, Trooper Weight spotted a minor drinking alcohol and began to speak with him. Bartlett, who was intoxicated and weighs 240 lbs, then moved over to Trooper Weight and the minor. The video footage shows that all 3 individuals were standing very closely together exchanging words and that Bartlett’s right hand was roughly at shoulder height and within inches of Trooper Weight.
Trooper Weight, who took Bartlett’s actions as hostile and aggressive, “created space for himself” by pushing Bartlett back. Trooper Nieves saw all this and ran over. The troopers subdued Bartlett and he was arrested for disorderly conduct and resisting arrest. Bartlett alleges that after the arrest, Trooper Nieves said: “bet you wish you would have talked to me now.”
The prosecutor determined there was probable cause for the arrest but dismissed the charges for budgetary reasons.
Bartlett brought suit under §1983 claiming excessive force, malicious prosecution, false imprisonment, and retaliatory arrest. The district court found in favor of the officers on all the charges on summary judgment, but the Ninth Circuit reversed on the retaliatory arrest charge.
The Ninth Circuit reiterated that in that circuit, a plaintiff can prevail on a retaliatory arrest claim even if the officers had probable cause to arrest. In this case, because Bartlett alleged that Nieves said, “bet you wish you would have talked to me now,” a reasonable jury could have found that the arrest was in retaliation for his refusal to answer questions earlier in the evening and summary judgment was therefore inappropriate.
The issue in this case is whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.
Filed August 6, 2018 (Supreme Court Merits)
Knick v. Scott Township, Pennsylvania
No. 17-647
Pro Bono Author: Matthew Zinn & Andrew Schwartz
CLICK HERE to view the Amicus Brief.
Knick owns approximately 90 acres of property in Scott Township, Pennsylvania. In 2012, the Township enacted an ordinance addressing the operation and maintenance of cemeteries, which applies to public and private cemeteries, and requires that cemeteries be properly maintained and accessible to the public during daylight hours. The ordinance also permits the Township’s Code Enforcement Officers to enter the property for determining the existence/ location of a cemetery and to ensure compliance with the ordinance. Anyone who violates the ordinance is subject to a fine. In 2013, Knick was determined to be in violation of the ordinance on her private property due to a private burial ground on the property.
Knick filed for declaratory / injunctive relief in Pennsylvania state court. Knick did not institute an inverse condemnation action against the Township in state court. After Knick filed her complaint in state court, the Township withdrew its notice of violation and the court concluded that until the Township evidenced an intent to enforce the ordinance against Knick there was nothing before the court to act upon. Thereafter, Knick sued in federal court claiming, among other things, an unlawful taking without just compensation in violation of the Fifth Amendment based on both the facial terms of the ordinance and as it was originally applied to her. Specifically, she argues that the ordinance effectuates an uncompensated taking of her private property by requiring her to hold her land open to the public and to Township inspectors.
By way of background, in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the Supreme Court held that before a takings claim is prudentially ripe, plaintiffs need to comply with state law procedures and remedies that are enacted to provide just compensation in a takings case, provided those procedures are adequate. Id. at 194
In this case, the Third Circuit agreed with the Township that Knick failed to comply with the Williamson County exhaustion of state-law compensation remedies, because Knick did not pursue inverse-condemnation proceedings under Pennsylvania’s Eminent Domain Code. The court concluded that her Fifth Amendment claims were therefore not ripe until she has sought and been denied just compensation using Pennsylvania’s inverse condemnation procedures.
The issue in this case is whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims.
Filed July 30, 2018 (Supreme Court Merits)
Carpenter v. Murphy
No. 17-1107
Pro Bono Author: Sarah Shalf
CLICK HERE to view the Amicus Brief.
Patrick Murphy, who is Native American, was found guilty of killing George Jacobs in Oklahoma state court and sentenced to death. By federal statute, states lack jurisdiction to prosecute Native Americans who commit murder in “Indian country.” The parties disagree over whether the murder took place in “Indian country.”
By way of background, the section of the Major Crimes Act’s definition of “Indian country” is as follows: “all lands within the limits of any Indian reservation.” Congress may disestablish or diminish Indian reservations. In Solem v. Barlett (1984), the Supreme Court established a three-part test to determine Congress has diminished a reservation. Per Solem: “[o]nce a block of land is set aside for an Indian Reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.” 465 U.S. at 470.
The Tenth Circuit ruled in favor of Murphy concluding that the Solem factors do not indicate the Creek reservation was disestablished. “Instead, the relevant statutes contain language affirmatively recognizing the Creek Nation’s borders.” The result is that the court concluded that the crime occurred on the Creek Reservation and therefore the Oklahoma courts lacked jurisdiction to prosecute Murphy.
Oklahoma argues that Congress’s series of actions through a number of late 1800s/early 1900s statutes effectively constitute disestablishment and specifically by forming the state of Oklahoma, “Congress systematically dismantled tribal governments and their communal ownership of lands.”
The issue in this case is whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).
Filed May 14, 2018 (Supreme Court Merits)
Mount Lemmon Fire District v. Guido
No. 17-587
Pro Bono Author: Collin O’Connor Udell
CLICK HERE to view the Amicus Brief.
John Guido was 46 and Dennis Rankin was 54 when their employment was terminated by the Mount Lemmon Fire District due to budgetary constraints. They were the oldest of the district’s 13 employees.
By way of background, the ADEA applies only to an “employer.” 29 U.S.C. § 630(b) defines the term “employer” as follows: “a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.”
29 U.S.C. § 630(a): The term “person” means one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons.
The Ninth Circuit held that the 20-employee minimum does not apply to a political subdivision of the state, contrary to every other circuit court to consider the issue has held. The Ninth Circuit reasoned, that “employer” means [A—person] and also means (1) [B—agent of person] and (2) [C—State-affiliated entities].” The sentence describing state-affiliated entities contains no size requirement. The Ninth Circuit said that the word “also” supports its interpretation. “The word ‘also’ is a term of enhancement; it means ‘in addition; besides’ and ‘likewise; too.’” As used in this context, ‘also’ adds another definition to a previous definition of a term—it does not clarify the previous definition.”
The issue in this case is whether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state.
Filed April 30, 2018 (Supreme Court Merits)
Weyerhaeuser Company v. United States Fish & Wildlife Service
No. 17-71
Pro Bono Author: Thomas McCarthy
Only about 100 adult dusky gopher frogs are known to exist in the wild. Historically, the frog was found in parts of Louisiana, Mississippi, and Alabama, today, the frog exists only in Mississippi. The United States Fish and Wildlife Service designated private land owned by the Weyerhaeuser Company in Louisiana as “critical habitat” for the dusky gopher frog under the Endangered Species Act (ESA). It made this designation based on special breeding ponds located on the land, which it deemed “essential for the conservation of the species,” notwithstanding the fact that the Louisiana land where the ponds were located lacked other necessary qualities to make the land currently habitable for the frog.
The Weyerhaeuser Company holds a long-term timber lease on all of the land that does not expire until 2043. The Weyerhaeuser Company sued the Fish and Wildlife Service challenging the designation of its land as a critical habitat.
The Firth Circuit ruled in favor of the Fish and Wildlife Service, deferring to the Service’s determination that the areas owned by the Company were “essential for the conservation of the species.” The court noted that the final critical-habitat designation was the culmination of two proposed rules, economic analysis, two rounds of notice and comment, a scientific peer-review process including responses from six experts, and a public hearing.
The Weyerhaeuser Company claims that the land in question is “uninhabitable” by the frog “barring a radical change in the land’s use by its private owners.” More technically, the company claims that the land “is not currently supporting the conservation of the species in any way and the Service has no reasonable basis to believe that it will do so at any point in the foreseeable future.”
The Fifth Circuit rejected this argument, concluding that there is no habitability requirement in the ESA and no temporal requirement the frog can live on the land in the foreseeable future in the statute.
After designating land as “critical habitat,” the ESA mandates that the Service “tak[e] into consideration the economic impact . . . of specifying any particular area as critical habitat.” After it takes this impact into consideration, the Service “may exclude any area from critical habitat if [it] determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless [it] determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.”
Here the Service’s concluded the economic impacts on the land “are not disproportionate.” The potential loss of development value in the land is up to $33.9 million over twenty years. Weyerhaeuser Company claims because the land isn’t currently habitable by the dusky gopher frog it provides no biological benefit to the frog and thus the benefits of excluding the designation should outweigh the benefits of specifying the area as critical habitat.
The Fifth Circuit refused to review the Service’s decision opining there are no “judicially manageable standards” to judge the Service’s decision:
The Service argues that once it has fulfilled its statutory obligation to consider economic impacts, a decision to not exclude an area is discretionary and thus not reviewable in court. The Service is correct. Under the APA, decisions “committed to agency discretion by law” are not reviewable in federal court. An action is committed to agency discretion when there is “no meaningful standard against which to judge the agency’s exercise of discretion.” “[I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for ‘abuse of discretion.’”
The issues in this case are: (1) Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.
IMLA filed an amicus brief focused solely on the second issue.
Filed March 28, 2018 (Supreme Court Merits)
Trump v. Hawaii
No. 17-965
Pro Bono Author: Stuart Banner
CLICK HERE to view the Amicus Brief.
The third “travel ban” indefinitely bans immigration from six countries: Chad, Iran, Libya, North Korea, Syria, and Yemen. Persons from some of these countries and Venezuela also may not receive particular non-immigrant visas.
The Ninth Circuit ruled against the travel ban. It issued a nationwide injunction applying to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The court’s reasoning was brief: “Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”
There are a number of issues in this case, including whether the travel ban is unconstitutional under the Establishment Clause or a lawful use of Presidential Power. The sole issue IMLA filed an amicus brief on is whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad. IMLA’s amicus brief argued that it is properly within the discretion of a district court judge to issue nationwide injunctions, particularly where an unconstitutional federal law is at issue (though we took no position as to the constitutionality of the Executive Order in this case).
Filed March 2, 2018 (Supreme Court Merits)
Filed November 2, 2017 (Supreme Court Petition Stage)
South Dakota v. Wayfair
No. 17-494
Pro Bono Author: Tillman Breckenridge
CLICK HERE to view the Amicus Brief.
The issue in this case is whether the Supreme Court should abrogate Quill Corp. v. North Dakota’s sales-tax-only, physical-presence requirement.
After calls from Justice Kennedy to reconsider Quill’s continued application in the modern internet-era, South Dakota enacted a law to challenge Quill’s physical-presence requirement. Because the law South Dakota enacted squarely conflicted with Supreme Court precedent (which was the intention), the South Dakota Supreme Court ruled the state law was unconstitutional.
Filed February 27, 2018 (Supreme Court Merits)
National Institute of Family and Life Advocates v. Becerra
No. 16-1140
Pro Bono Author: John Baker
CLICK HERE to view the Amicus Brief.
NIFLA is a national religiously affiliated non-profit organization, composed of numerous pregnancy centers in California including both licensed and unlicensed clinics. NIFLA is strongly opposed to abortion. NIFLA and other similar organizations brought suit against the California Attorney General, claiming that the FACT Act violates its First Amendment free speech and free exercise rights.
The Ninth Circuit upheld the district court’s denial of NIFLA’s requested preliminary injunction. Regarding the free speech argument, the court held that although the Act is content-based, it does not discriminate on viewpoint and therefore strict scrutiny does not apply. The court expressly held that even though it found that the act was content-based, Reed v. Town of Gilbert did not require that every content-based regulation be subject to strict scrutiny. The court concluded that intermediate scrutiny was applicable as the Act regulated professional speech, and the court found that the Act survived intermediate scrutiny. The panel also concluded that the notice for unlicensed facilities survived any level of scrutiny, including strict scrutiny.
The question presented is whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the free speech clause of the First Amendment, applicable to the states through the 14th Amendment.
Filed February 12, 2018 (Supreme Court Merits)
Minnesota Voters Alliance v. Mansky
No. 16-1435
Pro Bono Author: Charles Rothfeld
CLICK HERE to view the Amicus Brief.
Minnesota Statute § 211B.11 prohibits wearing a “political badge, political button, or other political insignia . . . at or about the polling place on primary or election day.” To help determine which materials were political, Minnesota election officials distributed an Election Day Policy with examples including: “Issue oriented material designed to influence or impact voting” and “Material promoting a group with recognizable political views (such as the Tea Party, MoveOn.org, and so on).” Election judges were instructed to ask anyone wearing an item violating the Policy to remove or cover it. If a person refused, the election official should allow the person to vote, but record the person’s name and address for potential misdemeanor prosecution.
A number of political associations brought suit claiming First Amendment violations. The district court granted the state’s summary judgment motion on the plaintiff’s as-applied First Amendment challenge (after previously dismissing its facial challenge).
The Eighth Circuit ruled that Minnesota’s statute does not violate the First Amendment, citing Burson v. Freeman (1992). In that case the Supreme Court upheld a Tennessee statute that banned the “solicitation of votes” and “campaign materials” within 100 feet of the polling place.
The court didn’t address whether the statute is overbroad. Instead it opined that polling places are nonpublic forums and that the regulation is viewpoint neutral and facially reasonable.
The plaintiffs argued that banning Tea Party apparel at polling places is unreasonable because the tea party isn’t a political party. According to the Eighth Circuit the statute prohibits election-related apparel more generally. And even if Tea Party apparel isn’t election related it is not unreasonable to prohibit it in a polling place. “In order to ensure a neutral, influence-free polling place, all political material is banned. To demonstrate that the Tea Party is political, Minnesota provided polling data and media coverage supporting the public perception that the Tea Party is political. It also noted that as of July 2010, the Tea Party was a recognized caucus in the U.S. House of Representatives.”
The question presented is whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.
Filed January 29, 2018 (Supreme Court Merits)
Lozman v. City of Riviera Beach
No. 17-21
Pro Bono Author: Bennett Cohen / Britton St. Onge
Lozman was an outspoken critic of the City after he learned of its eminent domain plans for the Marina area where he lived on a floating home. After the City passed, via emergency session, a bill that approved the redevelopment plan, Lozman filed suit against the City seeking to invalidate it. A few months later at a regular public City Council meeting, Lozman was granted permission to speak during the “non-agenda” public comments portion of the meeting. He began by criticizing public officials as corrupt and a Councilperson interjected and told him to stop his comments and when he did not, she had him arrested. (He was informed if he left the meeting, he would not be arrested, but he refused to leave).
He was charged with disorderly conduct and resisting arrest. The state’s attorney determined there was probable cause for the arrest, but dismissed the charges. Lozman subsequently filed a Section 1983 action against the City claiming that the arrest was retaliatory in violation of the First Amendment. The case went to trial and the jury returned a verdict in favor of the City.
The Eleventh Circuit upheld the jury verdict, concluding that the officer had probable cause to arrest Lozman, which therefore defeated his claim of First Amendment retaliatory arrest as a matter of law.
The issue in this case is whether the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law.
Filed January 29, 2018 (Supreme Court Merits)
Benisek v. Lamone
No. 17-333
Pro Bono Author: Michael Parsons
CLICK HERE to view the Amicus Brief.
This case involves the issue of partisan gerrymandering and is the second Supreme Court case in the 2017 term to address the issue (the first being Gill v. Whitford). In this case, Republicans in Maryland challenged the Democrats’ redistricting of Maryland’s Sixth Congressional district. Voters elected a Republican to the district in the 2010 election, but since it was redrawn in 2011, the District has consistently elected Democrats. The redrawn map resulted in more than a 90,000 voter swing in favor of Democrats and the share of registered Republicans went from 47% to 33%. Republicans brought suit, claiming that they were retaliated against for voting Republican, in violation of the First Amendment.
The issues in this case are: (1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyleburden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016.
Filed January 22, 2018 (Supreme Court Merits)
Salt River Project Agricultural Improvement and Power District v. SolarCity Corp.
No. 17-368
Pro Bono Author: Tillman Lay / Katharine Mapes / Jessica Bell
CLICK HERE to view the Amicus Brief.
In this case, the Salt River Power District, a political subdivision of Arizona, is the only traditional supplier of power near where many SolarCity customers and prospective customers live. SolarCity sells and leases rooftop solar-energy panels. SolarCity claims that to prevent it from installing more panels the Power District introduced a new pricing structure. Under the structure if a customer obtains power from his or her own system he or she must pay a “prohibitively large penalty.”
SolarCity sued the Salt River Power District claiming it violated federal antitrust law. The Power District argued it is immune from federal antitrust lawsuits per the state-action doctrine. The district court denied the Power District’s motion to dismiss “citing uncertainties about the specifics of the Power District’s state-law authority and business.” The Power District sought to immediately appeal the court’s denial of state-action immunity.
Acknowledging a circuit split, the Ninth Circuit held that an order denying state-action immunity is not immediately appealable under the collateral order doctrine. The Supreme Court has only allowed interlocutory (immediate) appeals for immunities from suit (as opposed to immunities from liability) including 11th Amendment immunity, absolute immunity, and qualified immunity. This is because “[u]nlike immunity from suit, immunity from liability can be protected by a postjudgment appeal.” The Ninth Circuit determined that state-action immunity is an immunity from liability, rather than suit, and therefore denials of the immunity should not be immediately appealable.
The issue in this case is whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.
Filed November 20, 2017 (Supreme Court Merits)
City of Hays v. Vogt
No. 16-1495
Pro Bono Author:
CLICK HERE to view the Amicus Brief.
Matthew Vogt worked as a police officer for the City of Hays. In an interview with a different city, Vogt disclosed he had kept a knife he obtained in the course of his work as a Hays police officer. The new city offered Vogt the job on the condition that he tell the City of Hays about the knife and return it. Vogt did so. The Hays police chief told Vogt to write a report about the knife, and Vogt wrote a vague one-sentence statement. The Hays police chief then told Vogt to write a more detailed statement or he would be fired. That statement was used to locate more evidence and Hays was charged with two felonies related to possessing the knife.
Vogt alleges that, at the probable cause hearing, his statements about the knife and the resulting information were “used against him.” Charges were ultimately dismissed at the probable cause hearing and Vogt was never prosecuted for the crimes.
Vogt brought a Section 1983 claim against both cities and four police officers, claiming that they violated his Fifth Amendment rights. Specifically, he alleged that: (1) by threatening to terminate his employment if he did not provide additional statements about the knife, the defendants compelled him to make incriminating statements; and (2) those statements were used against him in a criminal case when they were used at the probable cause hearing.
By way of background, Garrity v. New Jersey, 385 U.S. 493, 500 (1967) held that statements “obtained under threat of removal from office” are compelled statements for purposes of the Self-Incrimination Clause.
The Tenth Circuit held, in conflict with a number of other circuits, that the Fifth Amendment is violated when compelled self-incriminating statements are used at a probable cause hearing and thus, Vogt could proceed with his claims against the City of Hays. The Tenth Circuit found that the officers were entitled to qualified immunity as the law was not clearly established and also dismissed the claim against the other city that had made a conditional offer of employment.
The Fifth Amendment states that no person shall be “compelled in any criminal case to be a witness against himself.” The question in this case is what does criminal case mean? Specifically, the question presented is whether the Fifth Amendment is violated when statements are used at a probable cause hearing, but not at a criminal trial.
Filed October 30, 2017 (Supreme Court Merits)
Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission
No. 16-111
Pro Bono Author: Bruce LaPierre
CLICK HERE to view the Amicus Brief.
In July 2012, a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado open to the public, and requested that the owner create a cake for their wedding. The owner declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs. He offered to sell them other baked goods in his store and the couple left without purchasing anything.
The couple filed a complaint alleging that Masterpiece had discriminated against them in a place of public accommodation because of their sexual orientation in violation of Colorado’s public accommodation law, which includes sexual orientation as a protected class.
Masterpiece argued that requiring it to create a wedding cake violates its rights to freedom of speech and the free exercise of religion. Masterpiece also argued that its refusal to create a wedding cake for the couple was not “because of” their sexual orientation, rather it claimed its refusal to create the cake was “because of” its opposition to same-sex marriage (based on its religious beliefs).
The Colorado Court of Appeals rejected this argument, concluding it was a distinction without a difference. The court noted that distinguishing between a person’s status and conduct closely correlated with that status is inappropriate in the context of discrimination. Further, the court concluded that merely requiring that Masterpiece not to discriminate against potential customers consistent with the public accommodation statute, even if compelled by the government, is not sufficiently expressive to warrant First Amendment speech protections. Regarding the religious expression claim, the court concluded that the statute was a neutral law of general applicability; it was not requiring Masterpiece to support or endorse a particular religion, but rather the law merely prohibited Masterpiece from discriminating against a potential customer on account of a protected status. The Colorado Court of Appeals applied rational basis to Colorado’s law and “we easily conclude that it is rationally related to Colorado’s interest in eliminating discrimination in places of public accommodation.”
The issue before the Supreme Court is whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.
Filed September 5, 2017 (Supreme Court Merits)
Gill v. Whitford
No. 16-1161
Pro Bono Author: Paul Diller
CLICK HERE to view the Amicus Brief.
In 2011, Wisconsin legislators redrew state assembly districts to reflect population changes recorded in the 2010 census. Map makers used a model designed to predict the likelihood that various proposed districts would elect a Republican. In the 2015 election, Republican candidates received less than 49% of the statewide vote and won seats in more than 60% of the state’s assembly districts; and, in 2014, 52% of the vote yielded 63 seats for Republicans. In 2015, Wisconsin voters filed a lawsuit claiming that Wisconsin’s election map was the result of partisan gerrymandering and violated their constitutional rights.
A divided panel of three federal judges ruled in favor of the challengers, finding that the map enacted by the Wisconsin legislature was a result of partisan gerrymandering and prohibited by the First and Fourteenth Amendments. The three-judge panel had ordered that new legislative districts be drawn by this November for the 2018 elections, but the Supreme Court stayed that order until it has a chance to rule on the case.
The challengers in Whitford proposed a 3-part standard for determining the influence of partisan gerrymandering in the district-drawing process. The first prong is whether there was discriminatory intent. The second prong is whether there was a discriminatory effect. To determine discriminatory effect, the challengers proposed a standard based on “wasted votes”–votes in each district cast for a non-winning party’s candidate. By dividing the difference between the sums of each party’s wasted votes by the total number of votes cast, the proposed standard yields an efficiency gap. The challengers in Whitford argued that efficiency gaps over 7% would demonstrate a discriminatory effect. The efficiency gap in Wisconsin was 13.3% in 2012 and 9.6% in 2014, according to the proposed standard. The third prong in the proposed analysis is whether the redistricting plan’s “partisan effect can be explained by the legitimate state prerogatives and neutral factors that are implicated in the redistricting process.”
The issues in this case are whether partisan gerrymandering cases are justiciable and if so, by what standard should the constitutionality of partisan gerrymandering claims be measured?
Filed September 5, 2017 (Supreme Court Merits)
Christie v. National Collegiate Athletic Association
No. 16-476
Pro Bono Author: Richard Simpson
CLICK HERE to view the Amicus Brief.
Instead of directly prohibiting sports betting under federal law, Congress passed the Professional and Amateur Sports Protection Act (PASPA), which prohibits state-sanctioned sports gambling. PASPA makes it “unlawful” for “a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact” sports wagering (28 U.S.C. § 3702(1)). In 2012, New Jersey amended its constitution to allow some sports gambling. New Jersey was sued by the NFL and other sports leagues for violating PASPA.
New Jersey argued PASPA is unconstitutional under the anti-commandeering doctrine because it requires the states “to affirmatively keep a prohibition against sports wagering on their books, lest they be found to have authorized sports gambling by law by repealing the prohibition.”
The Supreme Court has only struck down laws on anti-commandeering grounds twice. In New York v. United States, the Supreme Court struck down a “take-title” provision whereby states were required to take title to radioactive waste by a specific date, at the waste generator’s request, if they did not adopt a federal program. And in Printz v. United States, the Court struck down a federal law requiring state officers to conduct background checks on prospective gun owners.
In Christie I, the Third Circuit responded that New Jersey’s position “‘rest[ed] on a false equivalence between repeal and authorization,’ implying that a repeal is not an authorization.” At the time, New Jersey petitioned the Supreme Court and the United States submitted an amicus in opposition, arguing that under the Third Circuit’s construction of PASPA, States were free to repeal their prohibitions on sports wagering “in whole or in part.”
Thus, after losing at the Third Circuit, in 2014 New Jersey passed a law repealing restrictions on sports gambling (as opposed to affirmatively allowing it and setting up a state regulatory scheme). New Jersey was sued again by many of the same parties, and in Christie II, New Jersey again argued that PASPA unconstitutionally commandeers states, this time by not allowing New Jersey to repeal its own laws. The Third Circuit characterized New Jersey’s argument as follows: “’We told you so’”—if the legislature cannot repeal New Jersey’s prohibition as it attempted to do in the 2014 law, then it is required to affirmatively keep the prohibition on the books, and PASPA unconstitutionally commandeers the states.”
Nonetheless, the Third Circuit in Christie II again rejected the state’s anti-commandeering argument. The Third Circuit distinguished PASPA from the laws at issue in New York and Printz, noting that PASPA did “not present states with a coercive choice to adopt a federal program” or “require states to take any action.”
The Supreme Court will decide whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States.
Filed August 18, 2017 (Supreme Court Merits)
Artis v. District of Columbia
No. 16-460
Pro Bono Author: Katharine Mapes
CLICK HERE to view the Amicus Brief.
This case arises out of an employment discrimination suit against the District of Columbia. On December 16, 2011, the plaintiff sued in federal court claiming a Title VII violation. The federal district court had supplemental jurisdiction over her claims based on the District’s Whistleblower Act, False Claims Act, and her common law claim for wrongful termination against public policy. On June 27, 2014, the district court granted DC’s motion for judgment on the pleadings as to her federal employment discrimination claims and therefore dismissed the remaining claims as that was the sole federal claim creating jurisdiction for the federal court.
59 days later, the plaintiff filed her remaining claims arising under District of Columbia law in superior court. DC filed a motion to dismiss / for summary judgment based on the claims being time barred under their respective statute of limitations and 28 U.S.C. § 1367 (d). The trial judge agreed, finding 28 U.S.C. § 1367 (d) does not suspend state statutes of limitations at the time of the unsuccessful federal filing, but rather creates a thirty-day period (the “grace period”) for a claimant to file actions over which the U.S. District Court lacked jurisdiction.
28 U.S.C. § 1367 (d) provides: “[t]he period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”
There were nearly two years remaining on the statute of limitations when the plaintiff filed her suit in the United States District Court, and she asserts she had that period (plus thirty days) to file her claims in the Superior Court. DC argues that “tolled” means a thirty-day “grace period,” meaning that because the limitations period had expired while the federal suit was pending, the appellant had only thirty days to file in Superior Court.
The DC Circuit held that the statute regarding tolling is ambiguous, but in light of its context and purpose, the “grace period” approach advocated by DC was the correct interpretation and thus, the plaintiff/appellant’s claims arising under DC law were time-barred. The DC Circuit also reasoned that this approach better balances federalism concerns.
The issue the Supreme Court will decide is whether the tolling provision in 28 U.S.C. § 1367(d) suspends the limitations period for the state-law claim while the claim is pending and restarts the limitations once the federal case is dismissed and allows an additional 30 days after the claim is dismissed, or whether the tolling provision stops the limitations period from applying to the state law claims for the duration of the suit and if expired or having less than thirty days left to run, allows 30 days beyond the dismissal for the plaintiff to refile.
Filed August 7, 2017 (Supreme Court Merits)
Husted v. A. Philip Randolph Institute
No. 16-980
Pro Bono Author: Joshua Davis
CLICKHERE to view the Amicus Brief.
To comply with list maintenance duties required by the National Voter Registration Act (NVRA), Ohio compiles a list of people who haven’t engaged in “voter activity” for two years and sends them a confirmation notice. If they don’t respond to the notice and don’t vote in the next two federal election cycles, they are removed from the voter rolls.
The NVRA says that voters can’t be removed from the polls because they failed to vote. The Help America Vote Act (HAVA) modified it to say that states may remove voters if they don’t respond to a notice and don’t vote in the next two federal election cycles.
The Sixth Circuit held the Ohio scheme violates NVRA and HAVA. The Sixth Circuit concluded that the Ohio scheme “constitutes perhaps the plainest possible example of a process that ‘result[s] in’ removal of a voter from the rolls by reason of his or her failure to vote.” According to the court, the “trigger” for someone being kicked off the rolls is failure to vote.
Ohio argues that it doesn’t remove voters “by reason of” their failure to vote; it removes voters “by reason of” their failure to respond to a notice. They argue that the NVRA doesn’t regulate what triggers the confirmation notice.
The issue in this case is whether Ohio’s list-maintenance process, which uses a registered voter’s voter inactivity as a reason to send a confirmation notice to that voter, violates the NVRA or the HAVA.
Filed May 11, 2017 (Supreme Court Merits)
Filed July 8, 2016 (Supreme Court Petition-stage)
District of Columbia v. Wesby
No. 15-1485
Pro Bono Author Petition Stage: Kymberly Evanson (2017 Amicus Service Award Recipient)
Pro Bono Author Merits: John Korzen
CLICK HERE to view the Amicus Brief.
In this case, the District of Columbia Metropolitan Police Department received a late- night complaint about a loud party and possible illegal activities inside a house that reportedly had been vacant for several months. Officers soon arrived at the home and heard music coming from inside. When the officers knocked and entered, the people inside scattered into different rooms and hid. Police found twenty-one people throughout the house. The officers observed activity like that “conducted in strip clubs for profit.” Consistent with being a vacant property, the house was in “disarray” and essentially unfurnished.
Police gathered information and interviewed all persons present. No one present owned the house or knew its owner. Some told police that they were there for a birthday party, while others claimed it was a bachelor party. No one could identify the guest of honor. Several said that they had been invited by other people, and some said that a woman known as “Peaches” had given them permission to be in the home. “Peaches,” though, was not present.
Officers called “Peaches” on the phone several times but she was evasive and repeatedly hung up. When an officer asked her to come to the home, she refused, explaining that she would be arrested if she did so. “Peaches” told police she had told the partiers that they could use the home. She also initially claimed to police that the owner had given her permission to use the home and that she was “possibly renting” it from him. Soon, though, “Peaches” admitted to police that, contrary to her initial claim, she lacked the owner’s permission to use the home. Police then spoke with the homeowner, who confirmed that the house was vacant and that no one, including “Peaches,” had permission to be there.
Police arrested all the partygoers inside for criminal trespass (and disorderly conduct – though the petition will focus on criminal trespass), although prosecutors ultimately did not pursue charges.
The partiers brought a Section 1983 claim, alleging the officers lacked probable cause to arrest them for criminal trespass. The district court granted the partiers’ motion for summary judgment, finding that their arrests were without probable cause and that the two defendant officers were not entitled to qualified immunity. After a damages-only trial, the district court entered a judgment against the officers (and jointly against the District of Columbia) totaling nearly $1 million.
The District of Columbia Circuit affirmed in a 2-1 decision. It reasoned that the officers did not have “conflicting information” that would overcome the partiers’ claim that they had been invited to the house by “Peaches” and therefore no reasonable officer could have believed that the partiers knew or should have known that their entry was unauthorized. (The DC statute for trespass required a culpable mens rea on the part of the trespassers). Thus, according to the Circuit Court, a reasonable officer could not have believed that there was probable cause to arrest the plaintiffs.
The DC Circuit next concluded that the law was clearly established, for qualified immunity purposes, because the legal elements of criminal trespass were clearly established, even though no case had invalidated an arrest for trespassing under similar circumstances.
The issues before the Court are: (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.
IMLA submitted an amicus brief at the certiorari stage, framing the issues more broadly. Specifically: (1) whether a police officer assessing probable cause is entitled to credit one set of conflicting statements over another; and (2) even if the officer cannot, whether the law was clearly established on this point. IMLA joined a brief submitted by the SLLC at the merits stage as well.
Filed March 3, 2017 (Supreme Court Merits)
Filed December 2, 2016 (Supreme Court Petition Stage)
No. 16-605
Town of Chester, New York v. Laroe Estates, Inc.
Pro Bono Author: Sarah Shalf (2017 Amicus Service Award Recipient)
Holding: A litigant seeking to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) must meet the requirements of Article III standing if the intervenor wishes to pursue relief not requested by a plaintiff.
The original plaintiff in this case was a property developer (Sherman) who sued the Town of Chester for, among other things, an alleged regulatory taking due to the Town’s failure to approve a subdivision that Sherman planned to build on real property that he owned. Laroe Estates, Inc. (Laroe), the potential intervenor was one of two entities that held mortgages on Sherman’s property. The other entity was a bank, and it had the senior mortgage. After Sherman defaulted on his repayments, the bank foreclosed on the property and took possession following a foreclosure sale.
Laroe subsequently moved to intervene in Sherman’s suit against the Town pursuant to Federal Rule of Civil Procedure 24. Laroe argued that it was a “contract vendee” (essentially, a mortgagee) of Sherman’s real property and therefore had a sufficient equitable interest in the property to assert a taking claim against the Town. The district court disagreed. It denied Laroe’s motion to intervene.
The Second Circuit vacated and remanded. The panel identified the relevant question on appeal as whether “a party seeking to intervene as of right must independently have standing.” The Second Circuit noted that a circuit split exists on this issue and joined the majority of circuits in holding that standing is not a prerequisite for intervention under Rule 24.
The issue in this case was whether a party seeking to intervene as a matter of right needs independent Article III standing to do so.
IMLA submitted an amicus brief at the certiorari stage and joined a brief filed by the SLLC at the merits stage.
The Supreme Court held: (1) A litigant seeking to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) must meet the requirements of Article III standing if the intervenor wishes to pursue relief not requested by a plaintiff; and (2) the court of appeals is to address on remand the question whether Laroe Estates seeks different relief than Steven Sherman: If Laroe wants only a money judgment of its own running directly against the town of Chester, then it seeks damages different from those sought by Sherman and must establish its own Article III standing in order to intervene.
Filed January 25, 2017 (Supreme Court Merits)
No. 16-369
Los Angeles County v. Mendez
Pro Bono Authors: Daniel Collins (2017 Amicus Service Award Recipient)
Holding: The Fourth Amendment provides no basis for the U.S. Court of Appeals for the 9th Circuit’s “provocation rule.”
In Mendez, a team of police officers, including Conley and Pederson, responded to a call that a wanted parolee, Ronnie O’Dell, had entered a grocery store. Per the standard parolee at large classification, O’Dell had been classified as armed and dangerous. During a debrief after not finding O’Dell in the store, a confidential informant told police a man matching O’Dell’s description was on a bike outside a residence owned by Paula Hughes. Officers were told a man and a pregnant woman lived in Hughes’s backyard. Officers proceeded to the Hughes property in order to search it as well as another house down the street. The officers did not have a warrant for their search.
While other officers searched the Hughes’s residence, Officers Pederson and Conley were assigned to clear the backyard. They searched three storage sheds and found nothing. Then they encountered a shed surrounded by an A/C unit, electrical cord, clothes locker, etc. Officer Conley opened the shed’s door and pulled back a blanket used to insulate the shed. The officers saw a silhouette of an adult male holding what looked like a gun. They yelled “gun,” and fired a number of shots, seriously injuring both individuals residing in the shack. It turned out to be a BB gun that Mendez kept in his bed and used to shot rats when they entered the shed. Mendez claimed he was in the process of moving the BB gun so he could sit up in bed.
The district court concluded that although the deputies’ shooting of the Plaintiffs was not excessive under Graham, the deputies were nevertheless responsible / liable for damages under the “provocation” doctrine. The Ninth Circuit’s “provocation” rule may only apply where an officer’s use of force was preceded by a constitutional violation by the defendant, who intentionally or recklessly provoked a violent response.
Specifically, the district court found the officer’s search of the shack was unlawful under the Fourth Amendment and therefore, even though the officers’ use of force was reasonable, they were nevertheless liable because they “provoked” the violent confrontation with their warrantless search of the shack. The Ninth Circuit affirmed the district court’s findings on this count.
The questions presented in this case were: (1) Whether the U.S. Court of Appeals for the 9th Circuit’s “provocation” rule should be barred as it conflicts with Graham v. Connor, 490 U.S. 386 (1989) regarding the manner in which a claim of excessive force against a police officer should be determined in an action brought under 42 U.S.C. § 1983 for a violation of a plaintiff’s Fourth Amendment rights, and has been rejected by other courts of appeals; and (2) whether, in an action brought under Section 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment.
The Court ruled that the Ninth Circuit’s provocation rule conflicted with Graham v. Connor. The Court nonetheless remanded the case as the noted that the Mendez’ damages may not be totally foreclosed because they can recover for injuries that were proximately caused by the warrantless entry (but not from the failure to knock and announce).
Filed January 24, 2017 (Supreme Court Merits)
No. 15-1194
Packingham v. North Carolina
Pro Bono Authors: John Neiman & Braxton Thrash (2017 Amicus Service Award Recipients)
Holding: The Court concluded that the North Carolina Statute impermissibly restricts lawful speech in violation of the First Amendment.
The issue in this case was whether, under the Court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”
In this case, North Carolina law prohibits registered sex offenders from accessing commercial social networking where the registered sex offender knows minors can create or maintain a profile. Lester Packingham was charged with violating this statute because he accessed Facebook. He claims the statute violates the First Amendment both on its face and as applied to him.
The North Carolina Supreme Court held that North Carolina’s law is constitutional “in all respects.” The North Carolina Supreme Court first concluded that North Carolina’s law regulates “conduct” and not “speech,” “specifically the ability of registered sex offenders to access certain carefully-defined Web sites.” Even though the court concluded that the statute applied to “conduct” not “speech,” it still underwent a Reed v. Town of Gilbert analysis (a speech case) to determine if the statute was content-neutral. The court concluded that the statute is a “content-neutral” regulation under Reed because it “imposed a ban on accessing certain defined commercial social networking Web sites without regard to any content or message conveyed on those sites.”
The Supreme Court unanimously reversed the North Carolina Supreme Court, concluding that the law impermissibly restricted lawful speech in violation of the First Amendment. Notably, the Court assumed without deciding, that the statute was content neutral, but that it nevertheless could not withstand intermediate scrutiny. IMLA joined a brief filed by the SLLC urging the Court to apply intermediate scrutiny to the law.
Filed December 21, 2016 (Supreme Court Merits)
Expressions Hair Design v. Schneiderman
No. 15-1391
Pro Bono Author: Charles Rothfeld
A New York law prohibits sellers/merchants from imposing a surcharge on purchasers who use a credit card rather than cash. However, the law does not apply where merchants provide a discount to customers who pay in cash. For example, per a “no-surcharge” law if the regular price of an item is $100, then credit-card customers may not be charged $103 and cash customers $100. But if the regular price is $103, then credit-card customers may be charged $103 and cash customers may be provided a discounted price of $100. (The reason for the difference in treatment between surcharges and cash discounts pertains to studies done that people are more likely to balk at a surcharge even where the result is the same amount charged on the credit card). The state law is modeled off of the expired federal law.
Expressions Hair Design wants to post a single price for its goods and services but charge more to credit-card customers. Section 518 prohibits it from doing so. Expressions claims that Section 518 violates the First Amendment. The Second Circuit concluded that Section 518 regulates conduct and not speech and it therefore does not violate the First Amendment.
The issue before the Court is whether state no-surcharge laws unconstitutionally restrict speech conveying price information (as the Eleventh Circuit has held), or regulate economic conduct (as the Second and Fifth Circuits have held).
An amicus brief filed on behalf of a number of retailers asked the Court to use this case as an opportunity to rule that Reed v. Town of Gilbert applies to commercial speech and that strict scrutiny should therefore be used when analyzing these laws. IMLA joined a brief filed by the SLLC to argue, among other things, that Reed should not apply.
Filed October 7, 2016 (Supreme Court Merits)
Bank of America v. City of Miami (Wells Fargo v. Miami)
No. 15-1111
Pro Bono Author: Deepak Gupta
The City of Miami brought a claim under the Fair Housing Act (FHA) against Bank of America, alleging that it engaged in a decade-long pattern of discriminatory lending in the residential housing market that caused the City economic harm. The City claims that the bank targeted black and Latino customers in Miami for predatory loans that carried more risk, steeper fees, and higher costs than those offered to identically situated white customers, therefore creating internal incentive structures that encouraged employees to provide these types of loans.
The City alleged that by steering minorities toward these predatory loans, Bank of America caused minority-owned properties throughout Miami to fall into unnecessary or premature foreclosure, depriving the City of tax revenue as property values decreased and also simultaneously forcing the City to spend more on municipal services such as police, firefighters, trash and debris removal, etc., to combat the resulting blight.
The City used statistical analyses in its complaint to allege that the Bank’s conduct violated the Fair Housing Act in two ways. First, the City alleged that the Bank intentionally discriminated against minority borrowers by targeting them for loans with burdensome terms. Second, the City claimed that the Bank’s conduct had a disparate impact on minority borrowers, resulting in a disproportionate number of foreclosures on minority-owned properties, and a disproportionate number of exploitative loans in minority neighborhoods.
The Eleventh Circuit reversed the district court’s decision to dismiss the City’s complaint, concluding that the City has constitutional standing to pursue its FHA claims. The circuit court determined under controlling Supreme Court precedent, the “zone of interests” for the Fair Housing Act extends as broadly as permitted under Article III of the Constitution, and therefore encompasses the City’s claim. The court also found that the FHA contains a proximate cause requirement, based on principles drawn from the law of tort, but that the City had adequately alleged proximate cause. Finally, the Eleventh Circuit concluded that the statute of limitations did not necessarily bar the City’s claim because the “continuing violation doctrine” can apply to its claims (but remanded on this point for the district court to make a determination).
The petition for certiorari, which the Court granted, raises the following questions: (1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.
In a great first step victory for the City of Miami, the Eleventh Circuit held that the City has plausibly alleged a claim under the Fair Housing Act based on Wells Fargo and Bank of America’s discriminatory lending practices which resulted in large numbers of foreclosures throughout the city. Specifically, the court held in City of Miami v. Wells Fargo: “the City has adequately pled proximate cause when it comes to its tax-base injury because the Banks’ redlining and reverse-redlining practices bear some direct relation to the City’s fiscal injuries. There is a logical and direct bond between discriminatory lending as a pattern and practice applied to neighborhoods throughout the City and the reduction in property values. Third parties are involved, but the harm to the City is not contingent on their actions when considered in the aggregate. There is no discontinuity between the violation and the harm. Bad loans in the aggregate will mean foreclosures in the aggregate, which will mean loss of property value and a reduction in the tax base.” The court rejected the city’s claims related to increased municipal expenditures, finding these damages are not cognizable under the FHA because there were too many intervening actors and no way to isolate the injury attributable to the banks in the case of increased municipal expenses. The court noted that this was at the motion to dismiss stage, so it was merely concluding that the City’s claims meet the plausibility standard under Iqbal and Twombly. As you may recall, this case was before the Supreme Court a couple of terms ago and at that time, the Court confirmed that the City of Miami’s alleged injuries “fall within the zone of interests that the [Fair Housing Act] protects.” However, the Court rejected “foreseeability” alone as a sufficient standard for establishing proximate cause under the FHA. The Court remanded to the Eleventh Circuit to “define, in the first instance, the contours of proximate cause under the FHA,” noting that proximate cause requires “some direct relation between the injury asserted and the injurious conduct alleged.” Thus, the conclusion that the City had sufficiently pled an injury in terms of its lost tax revenue to meet the FHA’s proximate cause requirements was a great win for the City. We would like to thank our pro bono author, Professor Justin Steil for his great amicus brief on behalf of IMLA. To read the Eleventh Circuit’s decision, click here.
Filed August 30th, 2016 (Supreme Court Merits)
Ivy v. Morath
No. 15-486
Pro Bono Author: Rick Simpson
Holding: The Supreme Court vacated and remanded with instructions to dismiss the case as moot before it heard oral argument in the case.
Texas law requires anyone under 25 to complete driver education and be awarded a certificate before being issued a driver’s license. The Texas Education Agency (TEA) has licensed private driver education schools to issue these certificates. The petitioner is a deaf individual who sought a driver’s license.
The TEA did not provide Ivy and other deaf individuals any other viable option to obtain a certificate other than attending these licensed private schools. These schools refused to accommodate Ivy’s disability under the ADA by providing a sign language interpreter. The TEA refused to provide another alternative or force the licensed private schools to comply with ADA standards by revoking their licenses. Thus, Ivy is unable to obtain a Texas driver’s license until she turns 25.
The TEA claims that it is not responsible for ensuring that the private institutions it licenses are complying with the ADA because the TEA is not providing any service, program, or activity itself. No contractual or agency relationship exists between the TEA and the private driver education schools, but the TEA charges schools licensure fees and can only license a school that “complies with all county, municipal, state, and federal regulations,” which includes the ADA.
The Fifth Circuit ruled 2-1 that since the TEA was not in a contractual or agency relationship with the private schools, it does not provide a service, program, or activity under Title II of the ADA. Therefore, although the schools may be responsible for their own ADA compliance, the TEA is not dually responsible.
The issue in this case is whether the Fifth Circuit erred in deciding that the relationship between public and private actors does not invoke dual obligations to accommodate disabilities in any context other than an express contractual relationship between a public entity and its private vendor.
Supporting neither party, IMLA joined a SLLC brief arguing that state and local governments and other public agencies are required to ensure private persons’ compliance with the Americans with Disabilities Act :(1) where those private persons may fairly be said to be implementing a service, program or activity of the public entity itself; or (2) where the private actor is implementing a service, program or activity that constitutes a core governmental function or where the private person is charged with implementing a service, program or activity undertaken by a public entity for its own benefit and not as part of the regulation of private conduct.
Filed August 10th, 2016 (Supreme Court Merits)
Manuel v. City of Joliet
No. 14-9496
Pro Bono Author:Lawrence Rosenthal
In this case, police officers found a bottle of pills in Elijah Manuel’s pocket during a traffic stop. The officers tested the pills at the scene and, according to Manuel, falsified the results and found that they were ecstasy. A lab report concluded they were not ecstasy but Manuel was detained and charges against him were not dropped for another month.
Manuel brought a claim for malicious prosecution under Section 1983. The Seventh Circuit upheld the district court’s dismissal of Manuel’s Section 1983 claim. Previously in Newsome v. McCabe, the Seventh Circuit held that federal claims of malicious prosecution are founded on the right to due process, not the Fourth Amendment. Thus, in the Seventh Circuit there is no malicious prosecution claim under federal law if state law provides a similar cause of action and Illinois provides for a similar cause of action.
The question before the Supreme Court is whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment.
Filed June 17th, 2016 (Supreme Court Merits)
Murr v. Wisconsin
No. 15-214
Pro Bono Author: Stuart Banner
This case involves two significant issues for local government. The first is by virtue of the claim of a takings and its application to “the parcel as a whole” theory and the second involves the common land use regulation that merges two non-conforming lots into one upon events such as common title or building across property lines.
In this case, the Murrs own two lots based on a conveyance in 1995 from their parents who held the title to the lots (E and F) in two distinct titles; i.e., one in their names and one in their company’s name. These contiguous lots E and F, which together include a buildable area of only 0.98 acres are each non-conforming. Lot F contained a cabin and lot E was undeveloped. A St. Croix County ordinance dating from around 1970 prohibits the individual development or sale of adjacent non-conforming lots under common ownership that are each less than one acre total. But the ordinance treats adjacent lots of less than an acre as a single, buildable lot if they are separately owned.
The Murrs sought and were denied a variance to separately use or sell lots E and F. They could use the lots only as one single buildable lot.
The Murrs brought suit, claiming that the ordinance resulted in an unconstitutional uncompensated taking because, they argue, Lot E serves no purpose or use and has no value because it cannot be sold. The lower court found their claim barred by limitations.
The Wisconsin Court of Appeals ruled there was no taking in this case and passed on the limitations issue. The court looked at the value of lots E and F in combination and determined that the Murrs’ combined property retained significant value despite being merged. A year-round residence could be located on lot E or F or could straddle both lots.
The Wisconsin Court of Appeals relied on state court precedent to conclude that the lots should be considered in combination for purposes of takings analysis. According to the Wisconsin Court of Appeals, that state court precedent relied on the “Supreme Court’s historical formulation of the takings inquiry and practical consideration.” The court noted:
[T]he United States Supreme Court has never endorsed a test that ‘segments’ a contiguous property to determine the relevant parcel …. Instead, to determine whether a particular government action has accomplished a taking, courts are to focus “‘both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole ….’”
The question before the Supreme Court is whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes.
Filed March 22, 2016 (Supreme Court Merits)
Birchfield v. North Dakota
No. 14-1468
Pro Bono Author: Gregory Garre
The issue in this case is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.
In one of the three consolidated cases, Birchfield drove his car into a ditch and when an officer arrived on the scene he believed Birchfield was intoxicated. Birchfield failed a field sobriety test and a preliminary breath test showed a blood alcohol level of .254. The officer placed him under arrest and thereafter, Birchfield refused to submit to a chemical test. Such a refusal is a violation of North Dakota law and Birchfield was therefore charged with a refusal to submit to a chemical test, which is a class B misdemeanor.
Under N.D.C.C. § 39-20-01(1), an individual who drives “is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test” which may only be administered after placing the individual under arrest.
N.D.C.C. § 39-08-01 provides that a person may not drive a vehicle if that person refuses to submit to a chemical test to determine the alcohol concentration in his/her blood and any such refusal is guilty of a criminal offense.
Birchfield claimed that the statute criminalizing the refusal to submit to a chemical test violates the Fourth Amendment. Relevant to this case is the Supreme Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552, 1568 (2013), which held that “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Additionally, in Camara v. San Francisco (1967), which involved a city ordinance that allowed the warrantless inspection of property, the Court held there could be a violation of the Fourth Amendment even if no search was conducted. The North Dakota Supreme Court distinguished Camara noting that implied consent laws only authorize chemical testing where an officer has probable cause to believe the defendant is under the influence and has already arrested the defendant.
The North Dakota Supreme Court held that the criminal refusal statute satisfies the general reasonableness requirement of the Fourth Amendment. In so holding, the North Dakota Supreme Court discussed a number of court decisions from around the country that have similarly held that these implied consent statutes (which exist in all 50 states) do not violate the Fourth Amendment.
IMLA’s amicus brief points out that “drunk driving imposes a terrible toll on America, killing thousands and shattering the lives of tens of thousands of others each year.” The brief argues that while driving is important to many Americans, it is a voluntary privilege. Thus, agreeing to the chemical testing is voluntary as well. And criminal implied consent laws are reasonable because “they have been in effect across the Nation for decades, and that this Court has repeatedly upheld them against challenge and referred to them only in approving terms.”
Filed March 2, 2016 (Supreme Court Merits)
U.S. Army Corp of Engineers v. Hawkes
No. 15-290
Pro Bono Author: Joseph Jacquot
The issue in this case is whether the United States Army Corps of Engineers’ determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, constitutes “final agency action for which there is no other adequate remedy in a court,” and is therefore subject to judicial review under the Administrative Procedure Act.
In this case, the Hawkes wanted to mine peat from wetland property in Minnesota. The Army Corp of Engineers issued a “Jurisdictional Determination” (JD) that the property constitutes “waters of the United States” per the Clean Water Act meaning the Hawkes would have to obtain a permit to discharge dredged or fill materials into these “navigable waters.” Notably, the Corp concluded the property was connected by culverts and unnamed streams to a traditional navigable water way some 120 miles away. In Rapanos (2006) the Court stated that a permit application takes on average 788 days and costs about $275,000. Alternatively, if they chose to forego a permit and commenced mining the peat from their property they could be faced with extremely high penalties under the Clean Water Act.
The Hawkes commenced an action in district court challenging the JD and the Army Corp of Engineers argued that the JD was not a “final agency action” and therefore not subject to judicial review under the Administrative Procedure Act.
The lower court ruled that the Hawkes could seek judicial review of the jurisdictional determination. Per the Administrative Procedures Act judicial review may be sought from final agency actions. Per Bennett v. Spear, 520 U.S. 154 (1997), agency action is final when it marks the consummation of the agency’s final decision making process and when legal consequences flow from the action.
The court found the jurisdictional determination is the consummation of the Corps decision making process because the Corp describes an approved jurisdictional determination as a “definitive, official determination” that there are or aren’t waters of the U.S. on a site, which can be relied on for five years.
The court concluded that “rights or obligations have been determined” and “legal consequences flow” from a jurisdictional determination because, while it does not compel affirmative action, the Hawkes’ two choices following the jurisdictional determination are cost prohibitive. They can complete the permitting process which will be costly, time consuming, and ultimately futile. Or they proceed without a permit and risk an enforcement order from the Corp and stiff penalties.
IMLA’s amicus brief argued that local governments face the same challenges that the respondent’s do as landowners, however, they also have additional considerations as governmental entities that are empowered to provide long-term planning for communities including economic development and capital infrastructure projects and they therefore need the certainty provided by prompt judicial review.
Filed December 23, 2015 (Supreme Court Merits)
Heffernan v. City of Paterson
No.14-1280
Pro Bono Author: Collin Udell
Held: When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer’s actions are based on a factual mistake about the employee’s behavior.
The issue in this case is whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.
Police officer Jeffery Heffernan’s former police chief and friend, Lawrence Spagnola, was running for mayor against the current mayor of Paterson. Because of the politically sensitive nature of the situation, the current police chief (who directly reports to the mayor) instituted a policy for a limited number of high ranking employees, including Heffernan, that they were prohibited from getting involved in either campaign.
While Heffernan wanted Spagnola to win he didn’t work on his campaign. Heffernan’s bedridden mother asked Heffernan to pick up a campaign sign for her and Heffernan in turn met with Spagnola’s campaign manager to pick up the sign. Another police officer saw Heffernan talking to Spagnola’s campaign manager and told one of Heffernan’s supervisors. Heffernan was demoted for his “overt involvement in a political election,” in violation of the aforementioned policy, though he intended no such thing by merely picking up the sign for his mother.
The Third Circuit ruled against Heffernan concluding that there is no “perceived-support” First Amendment retaliation theory. A traditional and crucial element of a First Amendment retaliation claim is that a plaintiff actually exercises a First Amendment right (convey a political message or associate with a political party). Heffernan exercised no such right.
It was undisputed that Heffernan did not intend to convey a political message or intend to affiliate himself with the political campaign, which would be protected by the First Amendment, when he picked up the sign for his mother. (He repeatedly disavowed doing so). His demotion was based on his employer’s perception that he intended to convey a political message / associate with the campaign. The Third Circuit noted: “it is not ‘a violation of the Constitution for a government employer to [discipline] an employee based upon substantively incorrect information,’ Waters v. Churchill, 511 U.S. 661, 679 (1994), even where the government employer erroneously believes that the employee had engaged in protected activity under the First Amendment.”
IMLA filed a brief in this case arguing that an employee in Heffernan’s position has a host of protections available to him and there is no need to constitutionalize the issue by creating a First Amendment violation. IMLA also argued that a government employee’s ability to engage in political activity is not without limit and because Heffernan was an employee in a confidential and sensitive position he could have been demoted for actual political activities, rather than just perceived ones and that there could therefore be no First Amendment violation in this case.
Filed October 7, 2015 (Supreme Court Merits)
Luis v. United States
No. 14-419
Pro Bono Author: Mary Massaron
Held: A government may not seize “untainted assets” – i.e., those not traceable to the crime – prior to trial, as such a forfeiture would violate the defendant’s Sixth Amendment right to obtain counsel of her choice.
Luis was indicted on charges related to $45 million in Medicare fraud. Because her personal assets amounted to much less than $45 million, the federal government sought to freeze the use of her assets not traceable to the fraud pursuant to statutory authority. See 21 U.S.C. 853. The petitioner claimed that the forfeiture of such legitimately obtained assets violated her Sixth Amendment right to counsel because she claimed she was not able to afford counsel of her choosing if those assets were seized.
The Eleventh Circuit held that the seizing the assets did not violate her constitutional rights. The district court, which was upheld by the Eleventh Circuit, used this example:
[S]uppose . . . a bank robber [steals $100,000 and has] spent the $100,000 that he stole. It just so happens, however, that he has another $100,000 that he obtained legitimately. Should his decision to spend the $100,000 he stole mean that he is free to hire counsel with the other $100,000 when Congress has authorized restraint of those substitute assets? The reasonable answer is no. The bank has the right to have those substitute, untainted assets kept available for return as well.
The question before the Supreme Court is whether preventing a criminal defendant from using assets not traceable to a criminal offense to hire counsel of choice violates the Sixth Amendment’s right to counsel.
IMLA’s amicus brief argued that striking down the forfeiture law in question would threaten to overturn numerous state and local forfeiture laws and would undermine law enforcement efforts directed at sophisticated criminal enterprises.
Filed September 10, 2015 (Merits-stage brief; SCOTUS)
Franchise Tax Board of California v. Hyatt
No. 14-1175
Petition-stage brief filed April 24, 2015
Petition Stage Pro Bono Author: Quin Sorenson
Merits Stage Pro Bono Author: Quin Sorenson
Status: Certiorari was granted on June 30, 2015
This case involves a former California resident who earned hundreds of millions of dollars in licensing fees during the time that he lived in California before moving to Nevada. In 1993, the Franchise Tax Board of California (FTB) audited his California tax returns and concluded that he owed the state millions in unpaid income taxes, interest, and penalties. The now Nevada resident responded by filing suit against FTB in Nevada state court, alleging that FTB had committed fraud, intentional infliction of emotional distress and other torts in the course of the audit.
The Nevada Supreme Court held that the discretionary-function immunity for a governmental entity and its employees was not applicable in this case because the Nevada Court recognizes an exception to that immunity for bad-faith conduct. The Nevada Supreme Court also held that FTB was not entitled, under principles of comity, to the Nevada statutory cap on damages that is available to Nevada governmental entities. The court concluded that allowing FTB to utilize the damages cap would violate Nevada’s public policy because the state’s interest in providing relief to its citizens outweighs the comity principles.
The issues before the Court are: (1) Whether Nevada may refuse to extend to sister States haled into Nevada courts the same immunities Nevada enjoys in those courts; and (2) Whether Nevada v. Hall, which permits a sovereign State to be haled into the courts of another State without its consent, should be overruled.
IMLA submitted an amicus brief at the petition stage and joined a SLLC brief that focused on the first of these issues.
Filed April 8, 2015 (Merits-stage brief; SCOTUS)
Kingsley v. Hendrickson
No. 14-6368
Pro Bono Author: Aaron Streett
Held: To prove an excessive force claim under 42 U.S.C. § 1983, a pretrial detainee must show only that the officers’ use of that force was objectively unreasonable; he does not need to show that the officers were subjectively aware that their use of force was unreasonable
This case involves a claim of excessive force under 42 U.S.C. § 1983 by a pre-trial detainee. A different constitutional standard applies in excessive force cases depending on whether a person is an arrestee, a pre-trial detainee, or convicted. Specifically, the Fourth Amendment applies to unreasonable force claims against arrestees, the Fourteenth Amendment’s Due Process Clause applies to force used against pretrial detainees, and the Eighth Amendment applies to force used against those convicted. The “objectively reasonable” test applies under the Fourth Amendment to arrestees, which is the most plaintiff friendly test. Under the Eighth Amendment, a showing of malice is required in force claims, which is the most defendant friendly test. The Supreme Court has never articulated the specifics of the standard that applies to pretrial detainees.
In this case, the issue on appeal pertained to the jury instructions and the Seventh Circuit ruled that the excessive force jury instructions in this case, which used the term “reckless” three times, were not erroneous. The question before the Court is whether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable. In other words, is there a subjective component to excessive force claims under the Fourteenth Amendment or should these claims be analyzed like Fourth Amendment claims brought by arrestees?
Filed April 8, 2015 (Merits-stage brief; SCOTUS)
Horne v. Department of Agriculture
No. 14-275
Pro Bono Author: John Echeverria
Held: The Fifth Amendment requires that the Government pay just compensation when it takes personal property, just as when it takes real property. Any net proceeds the raisin growers receive from the sale of the reserve raisins goes to the amount of compensation they have received for that taking – it does not mean the raisins have not been appropriated for Government use. Nor can the Government make raisin growers relinquish their property without just compensation as a condition of selling their raisins in interstate commerce.
The issues in this case are as follows: (1) Whether the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm’n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.
On the surface, this case has to do with a marketing order that regulates the sale of raisins. However the issues in this case affect local governments, particularly the petitioner’s argument that a person subject to government regulation may ignore the regulation, use the property as they see fit, and then when the government seeks to compel compliance and to impose sanctions defend on the basis that the regulation amounts to a Taking and that the property owner is justified in not complying with the unconstitutional condition. IMLA’s brief argues, among other things, that while this argument may have some allure where the regulation amounts to a Taking, where the regulation does not amount to a Taking the person’s actions can be irreversible: a historic structure or wetlets might be destroyed or changed; a national resource could be removed, damaged or destroyed, or a protected species could be destroyed or altered.
Filed March 6, 2015 (Merits-stage brief; SCOTUS)
Obergefell v. Hodges
No. 14-556
Pro Bono Author: Blithe Smith Bock
Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.
The issues in this case are as follows: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
IMLA joined an amicus brief filed by the U.S. Conference of Mayors and the cities of Los Angeles and San Francisco, arguing among other things that the freedom to marry is a fundamental right for everyone, including gay men and lesbians.
Filed January 28, 2015 (Merits-stage brief; SCOTUS)
Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.
No. 14-86
Pro Bono Author: Amanda Kellar (IMLA)
Held: The Supreme Court held that to bring a religious accommodation claim an applicant or employee need only show that his or her need for a religious accommodation was a motivating factor in an employment decision
Abercrombie is a clothing store that depends on its sales associates who it calls “models” to represent its brand and promote its products. An applicant for employment applied for a job as a sales associate and she arrived at the interview wearing a head scarf. Abercrombie maintains a “Look Policy,” which in part forbids employees from wearing any headwear. Neither Abercrombie nor the applicant raised the issue of the head scarf, the applicant’s religion, or the applicant’s potential need for a religious accommodation during the interview. Ultimately, the applicant was not hired because head coverings are not permitted under the policy.
The Equal Employment Opportunity Commission filed suit on behalf of the applicant, claiming that Abercrombie failed to accommodate the applicant’s religion. The EEOC did not bring a disparate treatment claim and only brought the failure to accommodate claim. During her deposition, the assistant manager who interviewed the applicant testified that she “guessed” and “assumed” that the applicant was Muslim based on the head scarf, but she also testified that she did not “know” the applicant’s religion.
The Tenth Circuit ruled in favor of Abercrombie, finding that a plaintiff “ordinarily must establish that he or she initially informed the employer that the plaintiff adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice . . . ,”, which the applicant had not done. It further held that even if the employee herself need not give notice of her religious conflict, Abercrombie would still prevail because an employer must have “particularized, actual knowledge of the key facts that trigger its duty to accommodate,” and Abercrombie indisputably lacked actual knowledge—“from any source”—that the applicant wore her scarf for religious reasons or needed an accommodation for it. Indeed, the Tenth Circuit noted that even the EEOC’s own expert testified that headscarves can be worn by women for both religious and cultural reasons.
The issue before the Court was whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee. In other words, the EEOC argued that employers should be liable for failure to accommodate claims even if the employer did not have actual knowledge of the employee or applicant’s need for a religious accommodation if the employer correctly “assumed” or “guessed’ that the applicant or employee needed an accommodation. IMLA joined a brief filed by the SLLC arguing that under the EEOC’s proposed rule, employers would be forced to inquire into applicant’s religions based on stereotypes and assumptions, which is precisely what Title VII seeks to prevent. Instead, the brief advocated for adhering to long-standing EEOC guidance that provides that employers should refrain from making hiring and other employment decisions based on stereotypes and assumptions.
In an 8-1 ruling, the Supreme Court concluded that to bring a religious accommodation claim an applicant/employee need not show that the employer had “actual knowledge” of the need for an accommodation. Instead the employee/applicant only must show that his or her need for an accommodation was a “motivating factor” in the employer’s decision. Title VII prohibits employers from taking an adverse employment action “because of” religion. While “because of” usually means but-for causation, Title VII has a more relaxed standard that prohibits even making religion a motiving factor in an employment decision. Simply put, the Court would not add an “actual knowledge” requirement to Title VII.
According to the Court, while a knowledge requirement could not be added to the motive requirement, arguably the motive requirement cannot be met unless the employer at least suspects the practice in question is religious. Here Abercrombie at least suspected Elauf wore a head scarf for religious reasons so the Court did not decide whether the motive requirement could be met without knowledge. Justice Alito, in a concurring opinion, stated that the Court should have decided this question–in the negative.
Filed January 16, 2015 (Merits brief; SCOTUS)
City and County of San Francisco v. Sheehan
No. 11-16401
Petition-stage amicus brief – Filed on June 26, 2014
Pro Bono Author: Sarah Shalf
Held: The first issue, i.e., whether the Americans with Disabilities Act applies to police officers effectuating an arrest, was dismissed as improvidently granted. Regarding the second issue, Court held that police officers who were faced with an armed, violent, mentally ill suspect who had already made death threats to three people did not violate clearly established law when they entered the suspect’s residence instead of trying to accommodate her disability and that they were therefore entitled to qualified immunity
In this case, two police officers were called by a social worker to take Sheehan (the Respondent) into custody for an involuntary mental evaluation after Sheehan had threatened a social worker with a knife. When the officers arrived, they opened the door to Sheehan’s residence and she threatened to kill them and brandished a knife. They closed the door to her residence and called for backup. However, they then made the determination to reenter her residence before backup arrived to effectuate the arrest, in order to prevent Sheehan from harming herself or others. When they reentered, Sheehan rushed them with a knife. The officers tried to use pepper spray to stop her and when that didn’t work, they shot her several times. She survived and sued under 42 U.S.C. § 1983 and the ADA.
The Ninth Circuit agreed with the district court that the first entry was lawful (under the warrantless search exemption to render emergency assistance or respond to exigent circumstances) as was the officers’ ultimate use of deadly force under the circumstances. However, the Ninth Circuit held that the officer’s second entry into Sheehan’s residence was unlawful under both the Fourth Amendment and ADA. The court held that the second entry was unreasonable under the Fourth Amendment, on the basis that it was unreasonable to make an otherwise lawful entry when the officers could have desisted from their efforts to arrest Sheehan in light of her resistance and mental illness, and used different tactics that might have resulted in a different outcome. Regarding Sheehan’s claim under the ADA, the Ninth Circuit held that the “reasonable accommodation” requirement of Title II of the ADA applies to officers’ conduct in the course of an arrest – including an arrest of a violent individual like Sheehan. The court further held that the issue of the reasonableness of the accommodations proposed after this incident by Sheehan’s litigation expert (i.e., that the officers should have allowed Sheehan to remain in her “comfort zone” until they were able to calm her down), was one for the jury.
The Supreme Court granted certiorari on two issues: (1) whether the ADA requires police officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of an arrest; and (2) whether it was clearly established for the purposes of the Fourth Amendment that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable by reason of the anticipated resistance of an armed and violent suspect within the residence.
IMLA’s brief argued, among other things, that individual police officers should not be required to perform an analysis regarding what accommodations are necessary under the ADA, but rather, police officers should be afforded the broad discretion in these circumstances.
The Court dismissed the first issue regarding the ADA as improvidently granted.
Regarding the Fourth Amendment issue, the Court noted that the “real question” was “whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempting to accommodate her disability.” Despite having reframed the question presented on the Fourth Amendment issue, the Court declined to rule on this constitutional question – i.e., whether the officers violated the Fourth Amendment by entering the suspect’s home the second time rather than attempting to accommodate her disability. The Court instead, rested its holding on the fact that the law was not clearly established at the time of the events, thereby entitling the officers to qualified immunity. In so holding, the Court reversed the decision of the Ninth Circuit, admonishing that court that it has “repeatedly told courts – and the Ninth Circuit in particular – not to define clearly established at a high level of generality…Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the right to be free from unreasonable searches and seizures.” The Court explained that under the circumstances, a reasonable officer could have concluded that the second entry into Sheehan’s home was justified both under the continuous search rationale and the exigent circumstances rationale.
Filed December 22, 2014 (Merits-stage brief; SCOTUS)
City of Los Angeles v. Patel
No. 13-1175
Pro Bono Author: Thomas McCarthy
Held: Los Angeles Municipal Code § 41.49, which requires hotel operators to record and keep specific information about their guests on the premises for a ninety-day period and to make those records available to “any officer of the Los Angeles Police Department for inspection” on demand, is facially unconstitutional because it fails to provide the operators with an opportunity for pre-compliance review.
Los Angeles Municipal Code § 41.49 requires hotel and motel operators to keep specific information about their guests like their name, address, room number, and information about their vehicle parked at the hotel. Section 41.49 also states that hotel guest records “shall be made available to any officer of the Los Angeles Police Department for inspection.” In a facial challenge to the ordinance, motel operators objected to § 41.49 authorizing warrantless inspection of guest records.
The Ninth Circuit ruled in favor of the motel operators in this case. The majority concluded that § 41.49 is facially unconstitutional because it fails to expressly provide for pre-compliance judicial review before the police can inspect the registry. The Ninth Circuit noted that the “procedural deficiency” with the ordinance affected all searches authorized by that ordinance and therefore there are “no circumstances in which the record-inspection provision may be constitutionally applied.” Both dissenting opinions agree that the ordinance in this case isn’t facially invalid because the standard for facial invalidity is so high and the motel operators failed to meet it. The challenger must establish that the ordinance would not be valid under any set of facts.
The issues before the Supreme Court are: (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) Whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.
Filed November 21, 2014 (Merits-stage brief; SCOTUS)
Reed v. Town of Gilbert
No. 13-502
Pro Bono Author: William Brinton
Held: The provisions of a municipality’s sign code that impose more stringent restrictions on signs directing the public to the meeting of a non-profit group than on signs conveying other messages are content-based regulations of speech that cannot survive strict scrutiny.
After receiving an advisory notice that its signs announcing the time and location of church services were displayed for a longer time period than the Town of Gilbert’s Sign Code allowed, the Good News church sued Gilbert claiming the Sign Code violates the Free Speech Clause of the First Amendment. Gilbert’s Sign Code includes temporary directional signs related to qualifying events, political signs, and ideological signs. Good News church’s signs were temporary directional signs; such signs receive the less favorable treatment (in terms of size, location, duration, etc.) than political signs and ideological signs.
The Ninth Circuit held that Gilbert’s Sign Code does not violate the First Amendment. A majority of the court concluded the distinctions between the three sign categories are content-neutral because all signs in each category are treated the same regardless of their content even if the three categories of signs are treated differently: “[E]ach classification and its restrictions are based on objective factors relevant to Gilbert’s creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign. Each exemption is based on objective criteria and none draws distinctions based on the particular content of the sign. It makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted.”
The issue before the Court is whether the Town’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.
Filed October 16, 2014 (Merits-stage brief; SCOTUS)
Perez v. Mortgage Bankers Association
No. 13-1041
Pro Bono Author: Ashley Johnson
Held: The Paralyzed Veterans doctrine is contrary to the clear text of the Administrative Procedure Act’s rulemaking provisions. An agency is not required to use notice-and-comment procedures to amend or repeal an interpretive rule.
In 2006 the Department of Labor (DOL) issued an opinion letter concluding that mortgage loan officers do not have to be paid overtime if they work more than 40 hours a week. In 2010 the DOL issued an Administrator’s Interpretation saying the opposite and withdrawing the 2006 opinion letter. The Mortgage Bankers Association, who represents over 2,200 real estate finances companies, sued DOL claiming that if DOL wanted to make this change it had to conduct notice and comment rulemaking.
The D.C. Circuit’s rule is that if an interpretive rule is “definitive” and an agency makes a “significant change” to it, the agency must conduct notice and comment rulemaking. The D.C. Circuit ruled that reliance on a rule is not a separate element in the analysis. There is a circuit split over whether changes to interpretive rules require notice and comment. The Supreme Court will decide whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.
Filed September 16, 2014 (Merits-stage brief; SCOTUS)
Alabama Department of Revenue v. CSX Transportation
No. 13-553
Pro Bono Author: Sarah Shalf
Held: The Court reversed the Eleventh Circuit and remanded to determine whether Alabama’s fuel-excise tax is the rough equivalent of the state’s sales tax that is applied to diesel fuel and would therefore justify the motor carrier tax exemption.
The Railroad Revitalization and Regulation Reform Act (4-R) prohibits states from taxing railroads in a discriminatory manner. In Alabama, railroads pay a 4% sales tax on diesel fuel, trucks pay a 19 cents per gallon excise tax, and water carriers pay no tax.. The Eleventh Circuit ruled Alabama violated 4-R. It compared CSX to competitors only and did not include the excise tax trucks pay when comparing their taxation to railroads. The issues before the Supreme Court are: (1) Whether a state “discriminates against a rail carrier” in violation of 49 U.S.C. § 11501(b)(4) when the state generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors; and (2) whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. § 11501(b)(4), a court should consider other aspects of the state’s tax scheme rather than focusing solely on the challenged tax provision
The Court held: (1) that the comparison class for purposes of determining whether a tax exemption discriminates against railroads can be either the general class of commercial and industrial taxpayers or the railroad’s direct competitors (e.g., truckers). (The Court left open whether any “other comparison classes may qualify.”); (2) a state “does not discriminate unless it treats railroads differently from other similarly situated taxpayers without sufficient justification” — and a “comparable tax levied on a competitor may justify not extending that competitor’s exemption from a general tax to a railroad.” The Court remanded to allow the Eleventh Circuit to assess whether Alabama “can justify its decision to exempt motor carriers from its sales and use tax through its decision to subject motor carriers to a fuel-excise tax”; and whether it can justify its exemption of water carriers from both taxes.
Filed August 25, 2014 (Merits-stage brief; SCOTUS)
T-Mobile South, LLC v. City of Roswell
No. 13-975
Pro Bono Author: Tillman L. Lay
Held: The Court held that when a locality denies a request, it “must provide or make available [its] reasons, but that those reasons need not appear in the written denial letter or notice provided by the locality. Instead, the locality’s reasons may appear in some other written record so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice.”
T-Mobile applied to construct a cell tower in the City of Roswell, Georgia in an area zoned single-family residential. The City’s ordinance only allowed “alternative tower structures” in such zones that were compatible with “the natural setting and surrounding structures.” T-Mobile proposed an “alternative tower structure” in the shape of a man-made tree, but it would be about 25-feet taller than the pine trees surrounding it. The city council voted against the application after a hearing. City councilmembers stated various reasons for why they intended to vote to deny the application. Additionally, there was a lot of vocal opposition to the construction of the tower at the meeting from citizens of Roswell. The City sent T-Mobile a brief letter saying that it denied T-Mobile’s application and that T-Mobile could obtain the hearing transcript and meeting minutes, which set forth its reasons for the denial.
The Telecommunications Act of 1996 (TCA) requires that permit denials for cell towers be “in writing.” The district court and other Circuit Courts have held that the TCA requires a written decision and a written record that explain why the city council’s majority rejected the application. The Eleventh Circuit disagreed relying on a plain reading of the statute. The statute does not say that “the decision [must] be ‘in a separate writing’ or in a ‘writing separate from the transcript of the hearing and the minutes of the meeting in which the hearing was held’ or ‘in a single writing that itself contains all of the grounds and explanations for the decision.’”
The issue before the Supreme Court is whether a document from a local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the TCA’s “in writing” requirement.
Applying its holding to the facts of the case, the Supreme Court held that the City satisfied its obligation to provide its reasons by providing detailed minutes of the City Council meeting at which the tower siting application was denied; but the City breached its statutory obligation by providing those minutes 26 days after the written denial (and just 4 days before petitioner’s time to seek judicial review would have expired).
Filed August 5, 2014 (Merits-stage brief; SCOTUS)
Comptroller v. Wynne
No. 13-485
Merits author: Paul Clement & Zack Tripp
Petition-stage brief filed on November 18, 2013
Petition stage author: Erich Eiselt (IMLA)
Held: Maryland’s tax scheme is unconstitutional and violates the dormant Commerce Clause.
Maryland taxes the entire income of its residents by imposing a state income tax with two components: a State tax and a County tax. The County tax is based on where the individual is domiciled and maintains a principal residence. State law provides for a tax credit for taxes paid to other states, but this credit does not apply to offset a resident’s County tax obligation.
The Respondents are a married couple with five children residing in Howard County, Maryland. In 2006, the tax year at issue, Mr. Wynne held a 2.4% ownership interest in a Maryland Subchapter-S corporation based in Howard County. The Wynne’s object to Maryland’s taxing scheme, claiming that the County tax creates a situation of unconstitutional double taxation in violation of the dormant commerce clause. The Maryland Court of Appeals agreed and held in favor of the resident tax payers.
The Supreme Court accepted certiorari to resolve the conflict created by the Maryland Court of Appeals’ decision between a most basic principle of state sovereignty – the right of a state to tax a resident within its boundaries, which has been recognized throughout the history of the Court–and the unwritten, amorphous and arbitrary concept of “dormant” Commerce Clause jurisprudence.
In a 5-4 opinion, writing for a sharply divided Court, Justice Alito concluded that Maryland’s personal income tax scheme violates the dormant Commerce Clause. The majority concluded that Maryland’s tax scheme creates a risk of double taxation, is inherently discriminatory and that it fails the “internal consistency” test. The majority noted that the state’s tax scheme operates as a “tariff,” which the Court concluded is “fatal because tariffs are the paradigmatic example of law discriminating against interstate commerce.” (internal quotations omitted)
Filed June 4, 2014 (Merits-stage brief; SCOTUS)
Integrity Staffing Solutions, Inc. v. Busk
No. 13-433
Pro Bono Author: James Ho
Petition-stage amicus brief – Filed on November 7, 2013
Held: The Court unanimously held that the time the employees spent waiting to undergo security screenings was not compensable under the FLSA.
Integrity Staffing Solutions provides temporary warehouse staffing to clients such as Amazon.com. In 2010, two plaintiffs filed a putative collective and class action alleging that pursuant to the FLSA, they, and hundreds of other former and current employees of Integrity, were entitled to compensation for time spent undergoing security screenings at warehouses in which they filled orders for the online retailer.
Integrity filed a motion to dismiss arguing that the time spent clearing security checks at the end of the work day is not compensable under the FLSA, as the security screenings were not “necessary and integral” to the employees’ jobs as warehouse workers. Integrity’s argument in favor of dismissal was consistent with decisions of the Second Circuit and the Eleventh Circuit.
The district court agreed with the holdings of those courts and held that even if the security checks were necessary to the employer’s goal of minimizing employee theft, plaintiffs still did not state a claim upon which relief could be granted because the security screenings were not “necessary and integral” to the employees’ jobs of order fulfillment. Plaintiffs appealed, and with respect to their claim regarding the compensability of time spent proceeding through security screenings, the Ninth Circuit reversed. The issue in this case was whether time spent in the security screenings is compensable under the FLSA. The Supreme Court held that it was not.
Filed April 9, 2014 (Merits-stage brief; SCOTUS)
Lane v. Franks
No. 13-483
Author: Matthew Delude
Held: The Court unanimously held that the First Amendment “protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.”
Petitioner Edward Lane accepted a job working for the Central Alabama Community College (CACC). He discovered that then-state representative Suzanne Schmitz was listed on his program’s payroll but never came to work. After numerous failed attempts to get her to come to work Lane fired her. Lane was subpoenaed to testify about his interactions with Schmitz before a grand jury and later a criminal trial. More than two years after his initial grand jury testimony and due to budget cuts CACC laid off 29 probationary employees, including Lane. All but three were called back because CACC realized many of those employees were not in fact probationary. Lane claims he was terminated for testifying against Schmitz in violation of the First Amendment.
The Eleventh Circuit disagreed and found that Lane was acting pursuant to his official job duties when he testified and therefore was not protected by the First Amendment. Other Circuits have held otherwise when it comes to speech pursuant to a subpoena.
This was the first public employment First Amendment case the Supreme Court accepted since Garcetti v. Ceballos. The issue before the Court was whether a public employee may bring a First Amendment constitutional claim for alleged retaliation for truthful sworn testimony that was compelled pursuant to subpoena.
IMLA’s brief argued that an employee who is acting as an employee and in the scope and context of employment is protected by all of the rights and benefits afforded to any employee under state and federal law, but the Constitution should not convert an employment action or dispute into a federal claim simply because the employer is a government entity. IMLA’s brief sought to convince the Court that the First Amendment is a poor vehicle to protect employees from retaliation for their testimony as it only applies public employers and leaves employees of private employers without the added protections sought by the Petitioner. Rather, IMLA argued, the host of laws that already exist should be sufficient to protect employees under these circumstances, and if not, additional laws could be passed to protect all employees from retaliation for testifying.
IMLA’s brief also pointed out that governmental employees are likely to be the most frequent witnesses and that many do so as a regular part of their job and that they should not be given a free pass to misbehave by covering their misbehavior under a blanket of First Amendment immunity. Similarly, IMLA argued that employees may admit in testimony that they abused their positions of public trust and should not be protected if they do so.
While the Court reversed the Eleventh Circuit decision which held that the speech was not protected because the employee “learned of the subject matter of his testimony in the course of his [public] employment”, the Court did affirm the Eleventh Circuit’s conclusion that the employer was entitled to qualified immunity. Although the Court did not rule in favor of the employer, IMLA believes that its amicus efforts paid off, as the Court specifically limited its ruling so as not to cover those employees who testify regularly as part of their jobs and also noted that the ruling would not protect employees who admitted to their own misconduct during testimony. As Justice Thomas pointed out in his concurring opinion, for some public employees like police, crime scene technicians, and laboratory analysts, “testifying is a routine and crucial part of their employment duties.”
Filed January 28, 2014 (Merits-stage brief; SCOTUS)
Sebelius v. Hobby Lobby / Conestoga Wood Specialties Corp. v. Sebelius
No. 13-354; 13-356
Pro Bono Author: Christine Van Aken
Oral Argument: March 25, 2014
Held: The Supreme Court concluded that RFRA’s definition of “person” includes for-profit closely held corporations, thereby invalidating the contraceptive mandate of the Affordable Care Act.
Three for-profit corporations and their owners objected on religious grounds to the Affordable Care Act’s requirement that a minimum level of health insurance includes coverage for all FDA-approved contraceptive methods. The corporations object to the requirement that they provide health insurance covering these contraceptive methods as they claim that this requirement violates their sincerely held religious beliefs under the Religious Freedom Restoration Act of 1993 (RFRA). The Third Circuit and Sixth Circuit both held that a for-profit secular corporation was not a “person” under RFRA and could therefore not engage in religious exercise under the First Amendment and RFRA while the 10th Circuit held otherwise, stating that a for-profit corporation was a “person” under RFRA, thus triggering the circuit split.
RFRA provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. The corporations claim that RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.
IMLA’s amicus brief solely focused on the argument that if the Supreme Court were to hold that a “person” under RFRA included for-profit corporations, then, given the statutory history of RFRA, RLUIPA’s definition of “person” could potentially have to include for-profit corporations. If that were the case, for-profit corporations would then be able to use RLUIPA to resist land use regulations on religious grounds, which could be onerous for local governments. Although the Supreme Court ultimately held that RFRA’s definition of “person” does include closely held for-profit corporations, Justice Ginsburg cited to IMLA’s brief in her dissent.
Filed January 17, 2014 (Merits-stage brief; SCOTUS)
Wood v. Moss
No. 13-155
Pro Bono Author: Bennett Cohen
Held: The Court unanimously granted qualified immunity to two Secret Service agents who moved anti-Bush protesters a block further from the President than pro-Bush supporters.
Pro- and anti-President Bush demonstrators had equal access to the President as his motorcade arrived in Jacksonville, Oregon. But when the President made an unexpected stop for dinner at the Jacksonville Inn’s outdoor patio, Secret Service agents, assisted by state and local police officers, moved the anti-Bush protesters, who were closer to the restaurant than the pro-Bush demonstrators, about one block further from the President than the pro-Bush demonstrators. The anti-Bush protesters sued two Secret Service agents claiming their First Amendment right to be free from viewpoint discrimination had been violated. The Ninth Circuit denied the agents qualified immunity.
The issue before the Supreme Court was whether the lower court evaluated the qualified immunity question in this case too generally. The Ninth Circuit focused its conclusion on whether the agents engaged in viewpoint discrimination instead of whether it was clearly established that the anti-Bush protesters could not be moved further away from the President than the pro-Bush demonstrators. The Court concluded that the agents were entitled to qualified immunity: “No decision of this Court so much as hinted that their on-the-spot action was unlawful because they failed to keep the protesters and supporters, throughout the episode, equidistant from the President.”
Filed January 6, 2014 (Merits-stage brief; SCOTUS)
Plumhoff v. Rickard
No. 12-1117
Pro Bono Author: Peter Keith
Held: The Court held that police officers did not violate the Fourth Amendment when they shot and killed the driver of a fleeing vehicle to end a dangerous car chase. The Court also held the officers were entitled to qualified immunity.
Police officers shot and killed Donald Rickard and his passenger after Rickard led police on a dangerous high-speed chase. Rickard wove through traffic on an interstate connecting two states, collided with police vehicles twice, and used his vehicle to escape after being surrounded by police officers, nearly hitting at least one officer. The families of Rickard and his passenger sought money damages claiming the officers violated the Fourth Amendment by using excessive force. The officers argued they should be granted qualified immunity because their use of force wasn’t prohibited by clearly established law.
The issue before the Supreme Court was whether the Sixth Circuit properly denied qualified immunity by distinguishing this case, which arose in 2004, with a later Supreme Court decision from 2007. IMLA’s brief argued that the Supreme Court should rule as follows: Officers retain qualified immunity from Fourth Amendment force claims so long as it is arguable, on the historical facts most favorable to the plaintiff, that the force was reasonable. In evaluating immunity, a court must adopt the inferences that a reasonable officer could arguably draw from the facts, regardless of whether those inferences are factual or legal. It is a legal question whether—based on the historical facts, the inferences an officer could arguably draw from them, and clearly established law—only a plainly incompetent officer could conclude that force was reasonable.
The Supreme Court concluded that the use of deadly force was reasonable because “[u]nder the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road.” The number of shots wasn’t unreasonable because “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” The Court also held that even if the officers had violated the Fourth Amendment, they would have been entitled to qualified immunity because they did not violate clearly established law.
Filed December 23, 2013 (Merits-stage brief; SCOTUS)
Marvin M. Brandt Revocable Trust v. United States
No. 12-1173
Pro Bono Author: Charles Montange
Held: Reversed and remanded on March 10, 2014. The Court rejected the United States’ contention that Congress granted railroads more than an easement and that the government retained an implied reversionary interest in the property.
In 1875 the Federal government granted significant easements to railroad companies to build tracks across the country. For a number of reasons, many of those railroad tracks have recently become abandoned. In 1983, Congress amended the National Trails System Act (16 USC 1247 (d)) (the “Trails Act”) to allow the federal government to take back abandoned railroad easements and turn them into land for public recreation. The process is commonly referred to as “railbanking.”
The Trails Act triggered a slew of litigation against the government, with independent landowners claiming that the original grants from the 19th century did not contain a residual right of possession for the government after tracks had been abandoned. The Seventh and Federal Circuits have previously held that the United States did not retain an implied reversionary interest in the abandoned tracks. In this case, the Tenth Circuit held otherwise, triggering a circuit split.
The issue before the Court was who owns an abandoned federally granted railroad right-of-way: the United States or the land owner whose property the right-of-way runs through. Local governments typically convert abandoned railroad rights-of-way into “Rails-to-Trails.” If the Supreme Court had agreed with the Tenth Circuit, state and local governments would have benefited. A federal statute, if applicable, grants the United States title to abandoned railroad rights-of-way unless a “public highway” is established on the right-of-way within one year of abandonment. Public highways include recreational trails. The IMLA amicus brief argues that state and local governments have long relied on the federal statutes relevant to this case to build public highways in abandoned railroad rights-of-way.
Filed November 7, 2013 (Merits-stage brief; SCOTUS)
McCullen v. Coakley
No. 12-1168
Pro Bono Author: Mary Jean Dolan
Held: The Massachusetts Act providing for a 35-foot buffer-zone violated the First Amendment
This was a Massachusetts case based on the permissibility of buffer zones around abortion clinics. Specifically, Massachusetts has a law making it a crime to “enter or remain on a public way or sidewalk” within thirty-five feet of the entrance, exit, or driveway of a “reproductive health care facility.” The law exempts any employees or agents of such a clinic so long as they are acting within the scope of their employment.
Petitioners challenged the constitutionality of the law under the First and Fourteenth Amendments, arguing that it restricts the speech of “only those who wish to use public areas near abortion clinics to speak about abortion from a different point of view.” Petitioners also argued that to the extent that the Court’s Hill v. Colorado (2000) decision controls the outcome of this case, that decision should be overruled. In, Hill, the Court ruled that the First Amendment right to free speech was not violated by a Colorado law limiting protest, education, distribution of literature, or counseling within eight feet of a person entering a health-care facility.
The issues before the Court were, (1) whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; and (2), whether, if Hill v. Colorado, permits enforcement of this law, Hill should be limited or overruled. While the Supreme Court held that the Massachusetts law was unconstitutional, it did not explicitly overrule Hill.
Filed September 23, 2013 (Merits-stage brief; SCOTUS)
Sprint Communications Company v. Jacobs
No. 12-815
Pro Bono Author: Kira Klatchko
Held: That abstention did not apply
This case arose out of a telecom dispute in Iowa. Sprint refused to pay another company’s intrastate access charge for a service and asked the Iowa Utility Board (IUB) for confirmation that it was under no obligation to do so. The IUB ordered Sprint to pay, and Sprint challenged the IUB’s decision in federal and state courts simultaneously. Under the Younger abstention doctrine, the Eighth Circuit ruled that the district court should not hear the case, if at all, until the state court’s review of the IUB decision was complete.
The Supreme Court took the case to decide whether it mattered for the purposes of abstention that Sprint initially asked the IUB for approval—a remedial proceeding— or if Younger abstention only applies where the state brings a party before the court or administrative board in a coercive proceeding.
Most remedial proceedings happen on the local level and involve zoning variances: for example, the denial of gun permits, and the like. The question was whether a federal court should be able to review this type of decision immediately or whether it should abstain until the state proceedings have ended.
Filed September 3, 2013 (Merits-stage brief; SCOTUS)
Township of Mount Holly v. Mt. Holly Garden Citizens in Action
No. 11-1507
Pro Bono Author: Kevin Decker
Status: Settled on November 13, 2013
The issue in this case was whether disparate impact claims are cognizable under the Fair Housing Act (FHA). If the Court were to reach such a conclusion, local municipalities would be subject to plaintiff suits for the unintended adverse impacts of their housing and redevelopment policies on minority populations.
Mount Holly Gardens is a section of the Township of Mount Holly in Central New Jersey. The neighborhood consists of about 300 brick units, originally constructed in the 1950s for military housing. In recent years the neighborhood had fallen into a period of decline, experiencing problems with absentee landlordism, and abandoned units. Many of the existing houses had been boarded up to prevent stripping of their valuables and piping. The area also became plagued with drug dealing and criminal activity. In 2002 the township declared the neighborhood blighted and in need of redevelopment.
From the start, the city’s plans for redevelopment were surrounded by a cloud of suspicion and distrust. Residents feared that they would be forced out of their neighborhoods because the proposed plans failed to provide for a sufficient number of rehabbed units and new affordable housing units. In 2003, residents who were predominately African American or Hispanic filed suit under the FHA, alleging that the redevelopment had a disparate impact on minority citizens who would be forced to vacate their neighborhood.
The town’s redevelopment plan called for the neighborhood to raze 329 roughhouses to make way for 228 apartments, 292 townhouses, and 54,000 square feet of commercial space. The plan included provisions to allocate about 10 percent of the neighborhood for affordable housing, which is consistent with the state Council on Affordable Housing Standards. In September 2011, the Third Circuit ruled that the redevelopment plan may have been discriminatory, and in violation of the FHA, even if that was not the township’s intent.
Filed March 25, 2013 (Brief on the Merits; SCOTUS)
American Trucking Associations, Inc. v. City of Los Angeles
No. 12-52
Pro Bono Author: Michael Burger
Status: Reversed and Remanded on June 13, 2013.
The American Trucking Association filed suit against the City and Port of Los Angeles over a policy that restricted certain drayage trucks from using the Port. Drayage vehicles are not hired by the Port; instead, shipping companies and transportation companies hire the drayage vehicles to ply their trade at the port. The policy at issue includes an order that effectively banned drayage vehicles from the port by prohibiting terminal operators from allowing drayage vehicles to use port facilities if the operators did not have a concession agreement. The Concession plans created a direct contractual agreement between the Port and the motor carriers providing drayage services.
The issue before the Court was whether a number of the Port’s concession agreements are preempted by the FAA Authorization Act, specifically, 49 U.S.C. § 14501(c)(1), which provides that “a State [or] political subdivision…may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier…with respect to the transportation of property.” The Port argued that this section of the law contains an unexpressed “market participant” exception, which permits a municipal governmental entity to take action that occurs in a market in which the municipality does not participate, and is unconnected with any interest in the efficient procurement of services. The Court held that the FAAAA expressly preempts provisions in the concession agreements.
Filed February 27, 2013 (Brief on the Merits; SCOTUS)
Dan’s City Used Cars, Inc. v. Pelkey
No. 12-52
Pro Bono Author: Sarah M. Shalf
Status: Affirmed against federal preemption on May 13, 2013
Robert Pelkey’s landlord towed Pelkey’s car when he failed to move it during a snowstorm in violation of his landlord’s parking policy. Pelkey was seriously ill at the time and did not learn about his car being towed until he returned from the hospital. When Pelkey’s attorney contacted Dan’s City Used Cars the towing company lied and said his car had been sold at public auction and never remunerated Pelkey for his loss. Pelkey brought a number of state claims against his landlord and Dan’s City Used Cars related to the incident.
The lower court concluded that the Federal Aviation Administration Authorization Act (“FAAAA”) preempted the state’s consumer protection laws, state towing liens and the common law of bailment insofar as each protected Pelkey’s interests. The Court accepted certiorari to decide whether such causes of actions against a tow-motor carrier based on state law regulating the sale and disposal of a towed vehicle were related to a transportation service provided by the carrier and were thus preempted by the FAAAA.
Filed February 19, 2013 (Brief on the Merits; SCOTUS)
Horne v. USDA
No. 12-123
Pro Bono Author: John D. Echeverria
Status: Reversed and Remanded on June 10, 2013
Since the 1930’s the United States Department of Agriculture (USDA) has attempted to stabilize raisin prices through a marketing program which requires that a percentage of every year’s annual crop be kept off the market. This rule applies to “handlers” of the raisins, but not to the grape growers themselves. The grower typically grows and dries the grapes, and then delivers the raisins to a handler for packaging and shipping. A group of operators in California were accused of trying to circumvent the marketing limitation and the reserve pool requirement. Instead of selling the raisins to “handlers,” they set up their own processing operations where they processed their own raisins, as well as other raisins sold to them by other growers, for market distribution.
This case is relevant to municipal attorneys because the operators claim that they have a right to raise the takings issue as a defense to the enforcement of the marketing program. The Court held that a farmer who is deemed to have violated an agricultural marketing order, is fined, and seeks to argue that the fine is an unconstitutional “taking” can bring his “takings” claim in a regular federal district court without first paying the fine, nor is he required to bring that claim in the Court of Federal Claims.
Filed February 15, 2013 (Merits-stage brief; SCOTUS)
Madigan v. Levin
No. 12-872
Pro Bono Author: Thomas J. Davis
Status: The writ of certiorari was dismissed as improvidently granted in a per curiam opinion on October 15, 2013.
Harvey Levin worked as an Illinois Assistant Attorney General. When he was terminated from this position he had been employed for six years and was over sixty years old. Levin sued the State of Illinois, the Office of the Illinois Attorney General, and the Attorney General in her individual capacity under the Age Discrimination in Employment Act (ADEA), and Section 1983. When the state sought to dismiss the 1983 claim as being displaced by the ADEA claim, the Seventh Circuit refused the request and held that they were not mutually exclusive causes of action.
The practical effect for local governments and governmental employers is that the ADEA provides some requirements for suit that the Section 1983 claims lacks. By allowing Section 1983 age discrimination claims and ADEA claims to co-exist, plaintiffs are given an alternative means for bringing ADEA-type claims without ADEA procedures. The issue before the Court was whether the Seventh Circuit erred in holding that state and local government employees may avoid the ADEA’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and Section 1983.
Filed January 30, 2013 (Brief on the Merits; SCOTUS)
McBurney v. Young
No. 12-17
Pro Bono Author: Stuart A. Raphael
Status: Affirmed in favor of Virginia FOIA-style law on April 29, 2013
Two non-Virginians, McBurney and Hurlbert, were denied access to records held by Virginia state agencies, because of a “residents-only” limitation which regulates access to most agencies in Virginia. McBurney, a citizen of Rhode Island, wanted to know why there was a nine-month delay in his collecting child support after his former wife defaulted on her obligation, and requested all information related to him, his son, his ex-wife, and his case and the handling of child support cases when one spouse lives abroad. Hurlbert, a citizen of California, operates a business which requests real estate tax assessment records for clients from state agencies. He sought assessment records for certain real estate parcels in Henrico County, Virginia. Both were denied access to records because they aren’t citizens of Virginia.
McBurney and Hurlbert filed suit seeking to have the Virginia FOIA-style law invalidated because the law limited the right of access to public records to “citizens” of the state. The issue before the Court was whether, under the Privileges and Immunities Clause of Article IV and the dormant Commerce Clause of the United States Constitution, a state may preclude residents of other states from enjoying the same right of access to public records that the state affords its own residents.
Filed December 28, 2012 (Brief on the Merits; SCOTUS)
Koontz v. St. Johns River Water Management District
No. 11-1447
Pro Bono Author: John D. Echeverria
Status: Reversed and Remanded June 25, 2013
Koontz sought a permit to develop part of his property that was contained within the Riparian Habitat Protection Zone, which is subject to the jurisdiction of the St. Johns River Water Management District. St. Johns asked Koontz to deed the rest of his land to St. Johns and perform off-site mitigation by either replacing culverts about five miles from his property or plugging drainage canals on other property seven miles away. Koontz agreed to deed the rest of his land to St. Johns but wouldn’t agree to the off-site mitigation. So, St. Johns never issued him a permit. Koontz sued St. Johns for a temporary taking and was awarded almost $400,000.
The Court will decide (1) whether a land-use agency can be held liable for a taking when it refused to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), and (2) whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.
Filed November 19, 2012 (Brief on the Merits; SCOTUS)
City of Arlington v. FCC
Nos. 11-1545 & 11-1547
Pro Bono Author: Paul D. Clement
Status: Affirmed in favor of City of Arlington on May 20, 2013
The issue before the Court was whether an appellate court properly granted the Federal Communications Commission (FCC) Chevron deference in affirming the agency’s authority to set “shot clocks” for state and local governments to approve or deny cell tower-siting applications. The FCC and the wireless industry argue the order in question is entitled to the highest degree of deference (defer to agency interpretations of statutes unless they are unreasonable), known as Chevron deference after the 1984 Supreme Court decision, Chevron v. Natural Resources Defense Council. The petitioners, including the cities of Arlington and San Antonio, Texas, assert Chevron deference should not be allowed.
Note: IMLA was accorded Intervenor status in the Fifth Circuit and therefore has party status in this case at the Supreme Court.
Filed September 13, 2012 (Brief on the Merits; SCOTUS)
L.A. Cnty. Flood Control Dist. v. NRDC
No. 11-460
Pro Bono Author: Sarah Shalf
Status: Reversed and Remanded January 8, 2013
To control flooding and prevent potential property damage, The City of Los Angeles, like many cities across the country, created a network Municipal Separate Storm Sewer System (MS4s). These channelized improvements to surface water flow are necessary to prevent catastrophic losses in the event of a natural disaster. The Ninth Circuit recently held that these man-made improvements constitute a “point source” under the Clean Water Act, even when they do not divert or alter the water source in any way, but merely channelize it for flood prevention. This redefinition of what constitutes a “point source” conflicted with prior Supreme Court case law, and it opened municipal governments operating MS4 waterways to strict liability for any discharge that passes through their gates, regardless of whether the discharge occurred upstream and outside of their control. The ruling placed cities in the untenable position of having to assume liability for all pollutants flowing through the MS4s they maintain, or forego developing flood control systems that protect the lives and property of their citizens.
The Supreme Court held that the Clean Water Act does not regulate movement of water from one part of a river, through a concrete channel, into a lower portion of the same river.
Filed September 4, 2012 (Brief on the Merits; SCOTUS)
Arkansas Game and Fish Commission v. U.S.
No. 11-597
Pro Bono Author: John D. Echeverria
Status: Reversed and Remanded December 4, 2012
The issue in the case involved the question of whether a taking occurs when the federal government repeatedly releases water from a dam that floods property downstream. In this case, the Commission argued that the flooding was not temporary as it occurred over a period of six years and resulted in the loss of timber valued at nearly six million dollars. The federal government took the position that being a downstream riparian owner requires the property owner to accept certain burdens with the benefits of riverside ownership, including getting flooded from time to time. The Fifth Circuit, which ruled for the United States, did not go quite so far, but concluded that a property owner could not recover under the Takings Clause for a temporary invasion of property.
On December 4, 2012, the Supreme Court decided that when the government makes a decision to release water from a retaining dam, it can be sued even if the downstream flooding is temporary in duration, provided it causes sufficient damage that is traced to the decision to release.
Filed February 06, 2012 (merits-stage brief)
Armour v. City of Indianapolis
Pro Bono Authors: Lowell Schiller, Quin Sorenson & John Meiser
Held: Because the city had a rational basis for its distinction between homeowners who had paid their taxes in a lumpsum and those who paid over time by installments, the city’s refusal to provide a refund to those who paid in a lump sum did not violate the Equal Protection Clause.
A group of property owners brought an equal protection claim against the City of Indianapolis due to the City’s decision to provide tax relief only on a prospective basis. Prior to 2005, the City would finance sewer projects by apportioning the costs to property owners. The City allowed owners to pay in full or by installments (10, 20, 30 year options). At some point, the City decided to move away from this method of financing and moved to a completely different system and made the decision to forgive the remaining amounts owed under the old system. However, the affected owners had not all paid the same amount since some homeowners had paid in full while some had opted for the longest term financing possible.
IMLA submitted a brief in this case to emphasize that the City’s actions meet the rational basis standard. Cities have reasonable, legitimate and even compelling reasons for differentiating between tax refunds and prospective tax relief.
Filed January 2012 (merits-stage brief)
Reichle v. Howards
No. 11-262
IMLA signed on with the State and Local Legal Center on a case with the following question: Is a person who is arrested upon probable cause barred from bringing a First Amendment retaliatory arrest claim against the arresting officer? In this case, Steven Howards was visiting an outdoor shopping mall when he found out that Vice President Dick Cheney would be making an appearance. Undercover Secret Service was on the scene, and one member of the team overheard Howards speaking into his cell phone, “I’m going to ask him how many kids he’s killed today.” Mr. Howards did approach the Vice President, touched him on the shoulder, and told him his policies in Iraq were disgusting.
Howards walked away, but he was stopped by Agent Reichle. Agent Reichle asked Howards if he had touched the Vice President. Howards responded untruthfully that he hadn’t and tried to walk away. Howards was arrested for harassment, held for a few hours, and released.
Howards brought an action against the Secret Service agents alleging that he was arrested without probable cause in violation of the Fourth Amendment and in retaliation for the exercise of his First Amendment rights. The Court of Appeals for the Tenth Circuit ruled that the agents were entitled to qualified immunity on the Fourth Amendment claim, as Howards had lied (which in this case, triggered a federal statute). However, the Tenth Circuit held that Howards could pursue a First Amendment retaliatory arrest claim despite the fact that agents had probable cause to arrest Howard.
The Court held that the two Secret Service agents were entitled to qualified immunity from suit because, at the time of the arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation.
Filed December 28, 2011 (merits-stage brief)
Magner v. Gallagher
Pro Bono Authors: Kevin Decker & Amie Penny
Status: This case was dismissed by both sides by agreement
Like many cities, St. Paul has a property maintenance code which establishes minimum standards for all structures, including provision on light, ventilation, heating, sanitation, fire safety, etc. In 2002, St. Paul’s Department of Neighborhood Housing and Property Improvement (DNHPI) increased the level of code enforcement and targeted rental properties. DNHPI employed a number of strategies, including issuing orders to abate conditions, condemnations, vacant-building registrations, fees for excessive consumption of municipal services, and if necessary, court action.
Plaintiffs in this case were landlords, with portfolios ranging from one to over forty properties. These landlords received the code enforcement citations. Plaintiffs claimed that they suffered increased maintenance costs and fees because of code enforcement. The 8th Circuit Court of Appeals held that these landlords could bring a disparate impact claim under the FHA, because the increased cost of repaid tended to increase rents, thereby disproportionately reducing the housing options for people of color. Plaintiffs were not required to show that the policy or practice was formulated with discriminatory intent; they simply had to show that “a facially neutral policy had a significant adverse impact on members of a protected minority group.”
Filed November 21, 2011 (merits-stage brief)
Filarsky v. Delia
Pro Bono Author: Geoffrey Eaton
Held: A private individual temporarily retained by the government to carryout its work is entitled to seek qualified immunity from suit under Section 1983
Delia brought a Section 1983 action against, the City of Rialto, a number of its employees, and importantly in this case, a private attorney hired to conduct an interview with Delia. Delia alleged a violation of his Fourth Amendment rights, and the 9th Circuit granted qualified immunity to all the defendants, EXCEPT for the private attorney, Filarsky. Because Filarsky is not a government employee, the 9th Circuit ruled that there was no special reason to extend governmental immunity to private parties similarly situated. IMLA participated in this case because local government entities rely on outside counsel regularly in performing day-to-day activities and for roles that are very specific in nature. Private lawyers who are acting on the government’s behalf should not be denied the protections while they are working side-by-side with government lawyer, simply because they are not employed by the local entity. A ruling against Filarsky would certainly have the consequence of affecting a government entity’s ability to retain high-quality counsel and would also likely increase municipal costs in a time when localities can least afford additional financial burdens. IMLA signed onto an amicus brief submitted by the National School Boards Association.
Filed September 16, 2011 (merits-stage brief)
Rehberg v. Paulk
Pro Bono Author: Lawrence Rosenthal
Held: A witness in a grand jury proceeding is entitled to the same absolute immunity from suit under Section 1983 as a witness who testifies at trial.
Rehberg sent a number of anonymous faxes to a local hospital, criticizing the management of the hospital. Paulk was a public investigator in the District Attorneys office who started investigating Rehberg as a “favor” to the hospital. Eventually, Rehberg was indicted three times by a grand jury, where Paulk was the only or one of two witnesses in front of the grand jury. Each time, Rehberg successfully challenged the grand jury indictment and the indictments were dismissed. Rehberg brought a Section 1983 action against, among others, Paulk for malicious investigation/prosecution and claiming that his Fourth Amendment rights were violated because he had been arrested under the “malicious” indictments. The Question Presented in front of the Supreme Court is an interesting one: “Whether a law enforcement official sued for an allegedly unreasonable search and seizure resulting from testimony in front of a grand jury that allegedly failed to provide probable cause should be denied testimonial immunity on the theory that the official is properly analogized to a complaining witness who could be sued at common law for the tort of malicious prosecution.”
Filed August 25, 2011 (merits-stage brief)
Florence v. Brd. of Chosen Freeholders of County of Burlington
Held: Jail strip searches do not require reasonable suspicion, at least so long as the arrestee is being admitted into the general jail population
IMLA signed on to an amicus effort headed by the City and County of San Francisco. In short, the issue is whether or not a visual strip search for an arrestee before being placed with the general jail population (regardless of pretrial, conviction, offense type) is constitutional under the Fourth Amendment. In 1979, the Supreme Court decided Bell v. Wolfish, 441 U.S. 520 (1979), which upheld a jail policy requiring a visual strip search of every inmate (pretrial and convicted) after every contact visit from a person outside the jail. Since Bell, some circuits now hold that arrestees charged with minor offenses may not be strip searched unless the prison has a reasonable suspicion that the arrestee is concealing a weapon or other contraband. IMLA believes that to ensure the safety of jail personnel, visitors, other inmates, local jail official need to be able to visually strip search arrestees before they enter the general jail population.
Filed March 31, 2011 (merits-stage brief)
Nevada Ethics Commission v. Carrigan
Pro Bono Authors: David Barber, Ashley Martinez, Elisabeth Kaylor, Molly Shortall (Arlington City Attorney’s Office)
Holding: The Nevada Ethics in Government Law, which prohibits a legislator who has a conflict of interest from both voting on a proposal and from advocating its passage or failure, is not unconstitutionally overbroad.
Carrigan was an elected councilmember. In 2005, the city held public hearings regarding a proposed large-scale casino/hotel development. One of the consultants for the casino was also Carrigan’s former campaign manager. Carrigan solicited the City Attorney on how to handle the situation. The City Attorney recommended that Carrigan did not need to abstain from voting, but he did need to disclose his prior relationship with the consultant, which he did. The Nevada Ethics Commission censured Carrigan for not recusing himself, basing its decision on a Nevada law that required elected officials to abstain from voting in situations with the following relationships: 1) another member of the official’s household; 2) someone related by blood or marriage; 3) an employer; 4) engaged in a business relationship; and 5) a relationship ‘substantially similar’ to the first four relationships. It was this “catch-all” category that was used to reprimand Carrigan. Carrigan brought a challenge under the First Amendment, claiming that the ethics law violated his protected political speech, was overbroad, vague and constituted a prior restraint. IMLA participated in favor of Carrgian in this case because we felt that the law was too vague, and confuses officials (and the local government attorneys who advise them) as to when to abstain from voting.
Filed February 7, 2011 (merits-stage brief)
Fox v. Vice
Pro Bono Author: Pierre Bergeron
Held: When there are both frivolous and non-frivolous claims in a plaintiff’s civil rights suit, a court may grant reasonable attorney’s fees to the defendant, but only for costs that the defendant would not have incurred but for the frivolous claims.
The Town of Vinton Louisiana was part of Section 1983 action in suit arising out of a heated election for Chief of Police. A federal court ultimately ruled that all of the plaintiff’s federal claims were frivolous but there were other state law claims deemed not frivolous. The Town then sought and won attorneys fees on the frivolous claims. Mr. Fox appealed, claiming that the Town was not a “prevailing defendant” because there were still state law claims yet to be resolved. IMLA joined this case arguing that the fees here were properly awarded — both because the inclusion of even one non-frivolous claim does not insulate a plaintiff from attorney fee liability for frivolous claims, and because the lower court had properly attributed the fees to the frivolous claims. IMLA joined this case because if Mr. Fox prevailed in this case, a plaintiff need only include one non-frivolous claim and can include numerous frivolous claims and still emerge unscathed from attorney fee liability. Cities fiscal resources are limited, and while cities accept the responsibility of defendant non-frivolous claims, taxpayers should not have to pay for cities to defend clearly frivolous claims.
Due Date: September 21, 2023 (Supreme Court Petition Stage)
Johnson v. City of Grants Pass
Pro Bono Author: Brandon Rain
This case was originally decided by the Ninth Circuit on September 28, 2022, and extended the Circuit’s already disastrous decision in Martin v. Boise, finding that anti-camping ordinances applied to the homeless population in Grants Pass, Oregan violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The City moved for rehearing en banc, which was narrowly denied on July 5, 2023 in a decision including numerous dissents, both as to the applicability of the Eighth Amendment to the ordinances and the finding that the Grants Pass homeless population satisfied the criteria for class certification, making an individualized inquiry into involuntariness unnecessary. As such, Grants Pass sows continuing confusion as to whether local governments can enforce any anti-camping ordinances in any locations within their limits. The only modification in the July 5 opinion related to stoves, fires and physical structures in public parks:
Beyond prohibiting bedding, the ordinances also prohibit the use of stoves or fires, as well as the erection of any structures. The record has not established the fire, stove, and structure prohibitions deprive homeless persons of sleep or “the most rudimentary precautions” against the elements. . . . Consistent with Martin, these prohibitions may or may not be permissible. On remand, the district court will be required to craft a narrower injunction recognizing Plaintiffs’ limited right to protection against the elements, as well as limitations when a shelter bed is available.
Facts: The Grants Pass homeless population exceeds the number the available shelter beds. The City’s ordinances prohibit sleeping on public land in the City using any form of bedding or shelter; a violation results in fines, which escalate if left unpaid. The “park exclusion” ordinance allows police to bar someone from a city park for 30 days if they receive two or more citations for violating park ordinances within one year; those who ignore a park exclusion citation and are later found in a park can be charged with criminal trespass. The City amended its camping ordinance after Martin to make it clear that the involuntary act of sleeping without shelter in a park was not prohibited, rather what was prohibited was “camping” – i.e., sleeping with any bedding / shelter.
Background and Lower Court Decision: In September 2018, a three-judge panel issued Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), holding “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” Id. at 1048. That opinion did offer a modicum of comfort to local governments by way of a footnote which stated:
Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible… So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the “universal and unavoidable consequences of being human” in the way the ordinance prescribes.
Shortly after Martin, three homeless individuals in Grants Pass filed a class action against the City on behalf of those who are “involuntarily homeless,” arguing its ordinances are unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishment and Excessive Fines clauses (among other arguments). The Ninth Circuit held that the district court did not abuse its discretion by certifying a class action despite Martin appearing to require an individualized inquiry into whether the person was involuntarily homeless. The Ninth Circuit reasoned that the class was defined as only those that were “involuntarily homeless” and therefore, no individualized inquiry was necessary as the City did not claim to have adequate shelter for all 600 homeless individuals in Grants Pass.
The Ninth Circuit also concluded that the City’s ordinances violated the Cruel and Unusual Punishment clause and a “local government cannot avoid this ruling by issuing civil citations that, later, become criminal offenses.” The court did not address ordinances that solely provided civil infractions. The Ninth Circuit affirmed the district court’s holding that “the anti-camping ordinances violated the Cruel and Unusual Punishment clause to the extent they prohibited homeless persons from ‘taking necessary minimal measures to keep themselves warm and dry while sleeping when there are no alternative forms of shelter available.’”
The dissent pointed out that the class certification was inappropriate under Martin’s requirement for an individualized inquiry into whether adequate shelter was available to the homeless person. Per the dissent:
the mere fact that a city’s shelters are full does not by itself establish, without more, that any particular person who is sleeping in public does “not have a single place where [he or she] can lawfully be.” Id. The logic of Martin, and of the opinions in Powell on which it is based, requires an assessment of a person’s individual situation before it can be said that the Eighth Amendment would be violated by applying a particular provision against that person… Under Martin, the answer to the question whether the City’s enforcement of each of the anti-camping ordinances violates the Eighth Amendment turns on the individual circumstances of each person to whom the ordinance is being applied on a given occasion. That question is simply not one that can be resolved, on a common basis, “in one stroke.”
Filing Date: August 16, 2023 (Supreme Court Petition Stage)
Indiana Municipal Power Agency v. United States
Pro Bono Author: Sebastian Waisman & Danny Solomon
Background:
The American Recovery and Reinvestment Act of 2009 (“ARRA”) authorized a wide range of state and local entities to issue Direct Payment Build America Bonds (“BABs”) to fund capital investments. BABs were an alternative to traditional tax-exempt state and municipal bonds; being taxable, they necessarily paid higher interest rates than typical revenue bonds or general obligation bonds. To incentivize issuers, ARRA provided that the IRS would refund to the issuers 35% of the interest they paid to bondholders on the BABs.
By the end of 2010, hundreds of state and local issuers had issued more than $180 Billion in BABs to fund various projects—water infrastructure, sewer systems, school buildings, roads and transportation, power transmission, and so on. This included a group of public power entities, consisting of the Indiana Municipal Power Agency; Missouri Joint Municipal Electric Utility Commission; Northern Illinois Municipal Power Agency; American Municipal Power, Inc.; Illinois Municipal Electric Agency; and Kentucky Municipal Power Agency (“plaintiffs”) who issued billions of dollars in BABs to fund projects that provide electric power to more than 300 municipalities in nine states.
From 2010 through the end of 2012, the IRS provided the 35% tax refund to BABs issuers. But Congress then passed the Taxpayer Relief Act and the Budget Control Act, which require automatic reductions of certain government spending through sequestration, defined as “the cancellation of budgetary resources provided by discretionary appropriations or direct spending law.” The public power agency plaintiffs argued that the BABs refunds had been authorized under “appropriation Acts” and were not “direct spending,” meaning that they were exempt from sequestration. The IRS took the position that the tax refunds for BABs were “direct spending;” therefore sequestration applied, reducing the amount payable by the IRS to bond issuers. Beginning in 2013, the IRS reduced tax refunds to BABs issuers; in 2013, for example, the refund rate fell from 35% to 8.7%.
Litigation Below:
In December 2020, the plaintiffs brought suit in the Federal Court of Claims, arguing that interest payments for BABs constitute spending under an “appropriation Act” and are exempt from sequestration. They further argued that Congress had created a contractual obligation to provide the tax refunds to BABs issuers.
The Court of Claims found in favor of the government. While a detailed explanation of the Court’s analysis is beyond the scope of this summary, the Court relied significantly on the GAO Glossary of terms, determining that the BABs refund program did not include the requisite legislative enabling language to constitute an “appropriation Act” and was instead consistent with the Glossary’s definition of “direct spending.” Congressional action after the BABs’ authorization had therefore amended and substantially diminished the program’s tax refund provisions:
The spending cuts implemented by the Taxpayer Relief Act and the Budget Control Act are irreconcilable with section 1531’s 35-percent payment rate. As a result, the Taxpayer Relief Act altered the Direct Payment BABs program, reducing the government’s payment obligation. When sequestration was implemented in 2013, the defendant was required by law to pay issuers of BABs a reduced rate. This change was consistent with the basic principle that Congress is free to amend pre-existing laws. See Dorsey v. United States, 567 U.S. at 274.
The Court found no contractual commitment by Congress to make the BABs refund payments: ”The plaintiffs’ contract claims also fail. The presumption is that a statute does not create contract rights. For a statute to obligate the government contractually, the statute must speak in contractual terms. Section 1531 of the ARRA does not include any such language.”
The plaintiffs appealed and the Federal Circuit affirmed the judgment below granting the government’s motion to dismiss and denying reconsideration. The plaintiffs now seek IMLA’s amicus support in petitioning the Supreme Court for certiorari to review the case, ultimately seeking reversal of the lower court’s decision.
Filing Date: February 28, 2023 (Supreme Court Petition Stage)
Celcog v. Perkins
Pro Bono Author: Joy Rabalais
In response to the COVID-19 pandemic, the mayor of Shreveport, Louisiana issued an executive order requiring citizens to wear masks when inside business establishments in the City (the “Mayor’s Order”). In response to the Mayor’s Order, local businesses filed a petition for declaratory and injunctive relief alleging that the mask order violated the Louisiana Constitution, Louisiana state law, and that the Mayor lacked the authority under state law to make the order. Every allegation in their complaint specifically referenced Louisiana law and there was no mention of any violation of federal law.
The trial court concluded that the Mayor lacked the authority to issue the order and that it was “unconstitutional in that it violates separation of powers and plaintiffs’ constitutional rights to due process of law.” The businesses then filed a motion for attorney’s fees pursuant to 42 U.S.C. §1988. The businesses argued that because Louisiana is a fact-pleading state (i.e., a plaintiff need only plead facts that would support recovery), and because their allegations were sufficient to allege violations of both the Louisiana Constitution and the U.S. Constitution, they were entitled to attorney’s fees under §1988. They claimed that the Louisiana Due Process Clause, for example, is a mere codification of the Due Process Clause of the U.S. Constitution. The City argued that the businesses’ failure to allege any violations of the U.S. Constitution or a federal statute rendered §1988 inapplicable. Moreover, the City argued that the complaint’s sole focus on state law violations would have precluded the City from removing the case to federal court and if there is no basis for federal jurisdiction there should be no basis for the award of attorney’s fees under §1988.
42 U.S.C. § 1988(b) provides for an award of attorney fees only in actions to enforce enumerated provisions of federal law, as follows:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, the Religious Freedom Restoration Act of 1993, the Religious Land Use and Institutionalized Persons Act of 2000, title VI of the Civil Rights Act of 1964, or section 12361 of Title 34.
The intermediate appellate court in Louisiana held that the complaint “clearly contains material facts sufficient to support a demand for recovery under § 1983. The claims made against Mayor Perkins in the original petition were factually based on the Due Process Clause of the Louisiana Constitution which confers “rights, privileges or immunities” within the meaning of 42 U.S.C. § 1983.” The court therefore concluded that because the complaint established a Due Process Clause violation, the businesses were entitled to recovery of attorney’s fees under § 1988.
The Louisiana Supreme Court denied a petition for review in a 4-3 order (3 judges would have heard the petition). The City is petitioned the Supreme Court for certiorari.
Filing Date: December 5, 2022 (Supreme Court Emergency Order)
R.J. Reynolds Tobacco Company, et. al. v. Bonta
Pro Bono Author: Joelle Lester
Los Angeles County has requested that IMLA file an amicus brief in opposition to R.J. Reynolds Tobacco Companies’ Emergency Motion for an Injunction filed with the Supreme Court. This is an unusual procedural posture for us to be involved in, but the tobacco companies are being represented by Noel Francisco, a former Solicitor General, who had a good deal of success with emergency motions for stays on the Supreme Court’s emergency order/shadow docket and given the implications of this case for local government ordinances banning flavored tobacco products and the important preemption issues, IMLA’s legal advocacy committee voted for IMLA to participate in the case.
This case stems from Californian voters’ approval of SB793, which bans the sale of “flavored tobacco products” throughout the state. R.J. Reynolds Tobacco Company has sued for an injunction, arguing that California’s SB793 is preempted by the federal Tobacco Control Act. They are making the same preemption arguments in this case that they made in the case they brought against the County of Los Angeles related to its ordinance banning flavored tobacco products. IMLA’s legal advocacy committee approved our participation in the LA County case last year and the issues in that case and this case are identical. The Ninth Circuit ruled in favor of Los Angeles County in its case concluding the ordinance was not preempted by federal law. See R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542 (9th Cir. 2022). The tobacco companies have petitioned for Supreme Court certiorari in the LA County case and that case is currently pending on the Supreme Court’s docket (LA County needs to file its response).
Like the new California law passed by ballot initiative, Los Angeles County Ordinance prohibits tobacco retailers from selling flavored tobacco products and tobacco products are defined to include both cigarettes and e-cigarettes. Los Angeles County Ordinance § 11.35.070(E); § 11.35.020(J); § 11.35.020(U)(1)-(2). A number of tobacco companies sued Los Angeles County last year seeking an injunction, claiming the ordinance was preempted by federal law. Specifically, they argue that the Family Smoking Prevention and Tobacco Control Act (the FSPTCA), 21 U.S.C. §§ 387-387u, expressly preempts the Ordinance because it impermissibly ‘‘establishes a state requirement that is ‘different from’ and ‘in addition to’ federal requirements related to tobacco product standards.’’
The district court rejected the argument that the ordinance is preempted, agreeing with the Second Circuit (which upheld a similar ban by New York City) “that a ban on flavored tobacco products was not a tobacco product standard” under the FSPTCA. The court also rejected the implied preemption arguments, finding the ordinance is “neither a manufacturing standard nor does it regulate the ingredients of tobacco products” and it therefore was not an obstacle to the purpose of the FSPTCA. Finally, the court notes that the FSPTCA has a Preservation Clause which “expressly preserves localities’ traditional power to adopt any ‘measure relating to or prohibiting the sale’ of tobacco products.’’ As noted above, the Ninth Circuit upheld the district court’s ruling in this case.
The issue presented to the Supreme Court in this case, which is identical to what the Ninth Circuit rejected, is whether the Tobacco Control Act expressly preempts state and local laws that prohibit the sale of flavored tobacco products?
While the LA County case is pending at the Supreme Court, the tobacco companies are seeking to circumvent the Ninth Circuit’s adverse ruling by bypassing the district court and Ninth Circuit and going straight to the Supreme Court in the state litigation, seeking an emergency inunction on the question of whether the Tobacco Control Act expressly preempts state and local laws that prohibit the sale of flavored tobacco products. If they are successful, the result will be the same as if LA County had lost at the Ninth Circuit.
Filing Date: November 17, 2022 (Supreme Court Petition Stage)
New Harvest Christian Fellowship v. City of Salinas
Pro Bono Author: Derek Cole
To address blight in its downtown area and promote and establish a pedestrian-friendly, active and vibrant downtown, the City of Salinas established a small “downtown core area” that included a 3-block area on Main Street. The City had certain permitted uses in the downtown core area that were designed to encourage mixed use development and have “pedestrian-oriented neighborhoods where local residents and employees have services, shops, entertainment, [and] jobs.” The City’s zoning code classifies the downtown core area as “mixed use,” which generally requires religious assemblies to obtain a conditional use permit to operate. The zoning code also specifically prohibits “[c]lubs, lodges, places of religious assembly, and similar assembly uses” from operating on the “ground floor of buildings facing Main Street within the Downtown Core Area.” (hereinafter the “Assembly Uses Provision”)
In March 2018, New Harvest Church purchased the Beverly Building, a two-story building located on Main Street in downtown Salinas. After operating out of a rented building nearby, New Harvest hoped to move to the Beverly Building, where it intended to host worship services on the first floor and use the second floor for classrooms, offices, etc. The City informed New Harvest before it acquired the Beverly Building that it could not conduct worship services on the ground floor given the Assembly Uses Provision. New Harvest nevertheless bought the building and sought a zoning code amendment and a condition use permit. The City denied the application, but did recommend that New Harvest could submit a modified application putting an active use at the front of the building on the ground floor such as a café or bookstore and then build the sanctuary toward the back. New Harvest was also free to use the second floor for worship services. New Harvest refused the City’s recommendation to submit a modified application and sued under RLUPIA instead, claiming both a “substantial burden” on its religious exercise and a violation of the “equal terms” provision of RLUIPA.
Both the district court and the Ninth Circuit found in favor of the City on the substantial burden claim given that New Harvest had several alternatives and could have conducted worship services on the second floor, it could have reconfigured the first floor, or it could have used another location in the City not in the 3-block zone that prohibited assemblies on the first floor.
The Ninth Circuit reversed the district court’s finding in favor of the City on the equal terms provision, however. The equal terms provision of RLUPA states that “[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1). The equal terms provision allows for both facial and as-applied challenges. New Harvest argued that the Assembly Uses Provision facially violated the equal terms provision of RLUIPA because it draws an “express distinction” between religious and nonreligious assemblies. Per the court, “[b]ecause the Assembly Uses Provision expressly excludes religious assemblies while permitting some nonreligious assemblies, New Harvest has established a prima facie case.”
At this point in the Ninth Circuit, the burden shifts to the City “to show that any nonreligious assembly permitted to operate on the first floor of the Main Street Restricted Area is not similarly situated to a religious assembly with respect to an accepted zoning criteri[on].” The Ninth Circuit rejected the City’s argument that burden should not shift to the City unless and until New Harvest identifies a similarly situated nonreligious assembly that is permitted to operate on the ground floor of the Main Street Restricted Area.
Once the burden shifted to the City, the Ninth Circuit agreed that the zoning criterion, i.e., to encourage pedestrian-oriented neighborhood, was an acceptable one. However, the Ninth Circuit found that New Harvest was not treated as well as every other nonreligious assembly that is “similarly situated” because the City allowed a movie theater to operate in the Main Street zone. The City argued that the theater was not “similarly situated” because it was distinguishing between “private” and “public” assembly uses, and the City only prohibited private assembly uses in the zoning area because private assemblies tend to operate during more limited hours and have blank facades and tend to attract less pedestrian traffic. The Ninth Circuit rejected the distinction, relying on extra-record “evidence” that churches, like the National Cathedral and St. Patrick’s Cathedral, can attract significant foot traffic to an area. The Court therefore concluded that the City’s Assembly Uses Provision violated the equal terms provision of RLUIPA by treating religious assemblies less favorably than nonreligious assemblies (i.e., theaters).
The question in this case is what a RLUIPA plaintiff must show in as a part of its prima facie case in an “equal terms” facial challenge before the burden shifts to the local government. The Ninth Circuit treated the claim as a facial challenge to the text of the City’s zoning ordinance and sustained the claim without requiring New Harvest to identify similarly situated secular comparators that were treated better. In contrast, the First, Third, Fourth, and Seventh Circuits require plaintiffs to show how secular comparators are treated for all “equal terms” claims.
Filing Date: July 28, 2022 (Supreme Court Petition Stage)
Valenzuela v. City of Anaheim
Pro Bono Author: Steven Renick
The underlying facts of this case are largely irrelevant for our purposes as we were only focused on the damages issues in this case. As relevant for our purposes, in July 2016, two officers ended up each applying a carotid hold to a suspect whom they sought to arrest. During the course of the attempted arrest, he offered significant resistance, would not submit to arrest, and ran away from them at one point. After the second carotid hold, the suspect, Mr. Valenzuela, lost consciousness. The officers performed CPR and he was transported to a hospital, but he died 8 days later. It was disputed how long the holds were applied and whether they were in fact carotid holds (the plaintiffs claim they were improperly applied and amounted to choke holds).
Mr. Valenzuela’s estate sued the officers for excessive force and wrongful death. They also sued the City based on an alleged unlawful policy and under a failure to train claim. The jury found that the officers had used excessive force against Mr. Valenzuela and found that the City was liable for having an unlawful policy, but not based on a failure to train claim. A second phase of the trial on damages followed and the jury returned a verdict awarding 3.6 million in damages for Mr. Valenzuela’s loss of life and $6 million for his pre-death pain and suffering. The jury also awarded 1.8 million each to his surviving estate members for wrongful death damages.
In terms of damages, the trial court rejected the city’s argument that loss of life damages are not cognizable under Section 1983 despite the fact that state law does not recognize loss of life damages in the state survival statute. The court concluded that foreclosing recovery for loss of life damages is inconsistent with the policies behind Section 1983 and incentivizes officers to kill rather than injure.
The City petitioned the Supreme Court for certiorari on the following issue: Whether under Robertson v. Wegmann, 436 U.S. 584 (1978), must a federal court apply a state law prohibition on hedonic damages to a 42 U.S.C. § 1983 survival claim?
The Supreme Court has applied state survival actions to Section 1983 claims similar to how it applies the statute of limitations; i.e., the state law applies to define the damages that may be recovered and the time within which suit must be filed. See Robertson v. Wegmann, 436 U.S. 584 (1978). Here, the California state legislature like most state legislatures in adopting a remedial law that provided that actions by and against a deceased party could proceed, limited the types of damages encompassed by the statute. As with other states, the statute allows for damages that a deceased could recover if the deceased had survived, but not for being killed. Those damages are generally part of a wrongful death claim that dependents can bring.
The hedonic damages issued were for $3.6 million, which was exactly the amount the jury awarded to the family for their wrongful death action, which we think underscores the duplicative nature of these damage awards. We filed amicus briefs in this case at the Ninth Circuit and in support of the City’s petition for rehearing en banc. The panel denied rehearing en banc and the City has petitioned the Supreme Court for certiorari.
Judge Bea issued a statement regarding the denial of rehearing en banc, which was joined by 9 other judges, noting that they would have granted rehearing en banc because the panel’s decision is foreclosed by the Supreme Court’s decision in Robertson v. Wegmann, 436 U.S. 584 (1978), deepens a circuit split, and conflicts with the tort law of 44 other states.
Filing Date: July 8, 2022 (Supreme Court Petition Stage)
Conner v. Cleveland County
Pro Bono Author: Heidi Wilbur, Patrick Kane, & Kip Nelson
An EMS employee, Sara Conner, brought a class action lawsuit against her employer, Cleveland County, claiming that the County failed to pay her and other similarly situated employees the regular wages/ straight time they were owed under the County’s ordinance when they worked overtime. They do not claim the County failed to pay them overtime or the minimum wage.
Conner worked on a 24 hour on/48 hour off shift schedule. As a result, she, and other employees on this shift schedule, would always work more than 40 hours per week. Conner alleges that her regular rate (i.e., her non-overtime rate) was set forth in an ordinance establishing an annual salary for her and other. She claims she should have been paid $36,900 for non-overtime work and that all overtime hours should have been paid on top of the $36,900 under the ordinance. The County claims the ordinance established her targeted full salary, including overtime, and that she and other employees were owed a lower amount for their regular wages. Specifically, the County says to calculate her non-overtime rate, it divided $36,900 by the total number of hours worked, 2,928, to get the rate of $12.60/hour. It then multiplied that hourly rate by the number of non-overtime hours, which comes to $26,208 in non-overtime compensation. Conner claims that the County unlawfully used her overtime wages to fill the “gap” between her straight-time compensation under the Plan ($25,208) and her full salary she claims she was entitled to ($36,900).
Bottom line, Conner alleges that the County failed to pay her the amount she was owed for her regular rate via the contract/Ordinance in weeks when she worked overtime, but she does not claim the County failed to pay her overtime wages.
Generally speaking, the FLSA only covers violations for failure to pay the minimum wage or overtime. Courts are split as to whether an employee can bring an overtime “gap time” claim for unpaid straight time (i.e., non-overtime hours) worked in a week in which the employee worked overtime. The DOL has weighed with interpretive guidance for this situation, explaining:
In determining the number of hours for which overtime compensation is due, all hours worked by an employee for an employer in a particular workweek must be counted. Overtime compensation, at a rate not less than one and one-half times the regular rate of pay, must be paid for each hour worked in the workweek in excess of the applicable maximum hours standard. This extra compensation for the excess hours of overtime work under the Act cannot be said to have been paid to an employee unless all the straight time compensation due him for the nonovertime hours under his contract (express or implied) or under any applicable statute has been paid.
The Fourth Circuit, relying on Skidmore / agency deference, held that that an overtime gap time claim is cognizable under the FLSA. The court reasoned that the allegation for a gap time violation was a “species of overtime violation: an employee who has not been paid all the straight time she is owed has not been properly paid her overtime.”
Filed January 4, 2022 (Supreme Court Petition Stage)
Bohanon v. Lawrence
No. 20-1006
Pro Bono Author: Timothy Coates & Nadia Sarkis
Status: Certiorari was denied.
This case involves a circuit split surrounding appellate jurisdiction over summary-judgment orders denying qualified immunity. IMLA has previously filed amicus briefs in other cases raising this same issue.
In this case, the Ninth Circuit dismissed an interlocutory appeal brought by three Las Vegas police officers facing excessive-force claims following their attempt to apprehend an individual, Keith Childress, Jr., who skipped bail after being convicted in Arizona for a violent home invasion. When the dispatcher sought officer assistance in apprehending Childress, it was erroneously conveyed that he was wanted for attempted homicide. The dispatcher also indicated that it was unknown if he was armed, but that a gun had been recovered in a vehicle he had been seen existing earlier in the day.
When the officers located Childress fleeing into a residential neighborhood carrying a black object in his right hand, which at least one of them believed was a firearm, a standoff ensued, and the officers repeatedly warned him to get on the ground, to “drop the gun” and not to approach or else he would be shot. Childress disregarded many commands (including that he would be shot if he walked toward the officers) and advanced on the officers and was shot multiple times by two officers. He was also detained by a police canine, which was deployed by a third officer. The dog bit Childress for approximately 15 seconds until the officers were able to get him in handcuffs. Virtually all of the exchange was captured on video. While the video does not show a gun, Childress’ right hand and arm are not visible in much of the footage. A gun was not recovered on the scene and the black object turned out to be his cell phone.
At the summary-judgment stage, the district court denied the officers’ request for qualified immunity. The court separated out the use of force into two incidents: a first round of shots and then a second round of shots 2-5 seconds later after Childress was on the ground. As to the first round of shots, the court concluded that the officers’ use of lethal force was objectively reasonable under the Fourth Amendment given the officers’ reasonable mistaken belief that the black object in his hand was a firearm and his refusal to obey their commands.
The court concluded that once Childress was on the ground, however, disputed facts existed as to whether the remainder of the officers’ shots were reasonable under the Fourth Amendment. The court rejected the officers’ arguments that Childress remained a threat because his hands were moving, and they believed he had a gun. The court explained that because the officers testified that they did not see Childress pull a gun out of his pocket, and they could not see a weapon in his hand, it was a disputed material fact as to whether Childress was still a threat after having been shot. The court then concluded the law was clearly established that, assuming the facts in the light most favorable to the plaintiff, shooting a suspect who is laying down bleeding on the ground and who poses no threat of serious bodily injury is unreasonable under the Fourth Amendment. As to the K-9, the court denied qualified immunity because it was clearly established that the deployment of the K-9 after Childress was on the ground having been shot was objectively unreasonable.
On appeal, the Ninth Circuit held that it lacked jurisdiction because disputed material facts existed as to whether Childress continued to be a threat to the officers after the first volley of shots. The court rejected the officers’ argument that video evidence “blatantly contradicts” the district court’s version of the facts.
Because qualified immunity is an immunity from suit, pretrial orders denying qualified immunity are immediately appealable. See Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985). But in Johnson v. Jones, 515 U.S. 304 (1995), the Supreme Court purported to carve out an exception for questions of “evidentiary sufficiency,” thus drawing a jurisdictional distinction between “law-based” appeals and “fact-based” appeals. In several cases decided since Johnson, however, including Plumhoff v. Rickard, 572 U.S. 765 (2014), the Court has made clear that the Johnson exception is limited.
The issue in this case is whether, and in what circumstances, federal courts of appeals have jurisdiction over an appeal from a district court’s denial of summary judgment based on qualified immunity.
Filed __ 2022 (Supreme Court Petition Stage)
City of Eugene v. Federal Communications Commission
No. 21-661
Pro Bono Author: Marissa Roy
Status: Certiorari was denied.
The FCC’s series of written orders, together with, the Act set forth rules by which state and local governments may regulate cable providers. Under the Act’s cable regulation, a cable operator may provide cable services only if a franchising authority—usually a local body, but sometimes a unit of state government—grants the operator a franchise to do so. In exchange for a cable franchise, franchising authorities often require (among other things) that cable operators pay cable franchise fees, provide free cable service for public buildings, and set aside channel capacity for “public, educational, and governmental [referred to in the industry as ‘PEG’] use[.]” Some of those requirements count as “franchise fees,” which the Act limits to five percent of a cable operator’s gross revenues for cable services for any 12-month period. The costs of franchise fees are passed on to cable subscribers.
The Eugene Code requires any “operator”—cable or not—to pay a 7% fee of the licensee’s gross revenues derived from telecommunication activities (defined to include cable services, telecommunication services, and information services) within the city in exchange for the operators’ use of public rights of way. (Given the number of local governments involved in this suit, many others likely also charge above the 5% cap set by the FCC, but Eugene is discussed in the opinion).
The issue in this case was whether local governments may require cable operators to pay a fee above 5% based on broadband service provision or whether the Federal Cable Act preempts their ability to do so.
The Sixth Circuit held that two provisions of the Communications Act expressly barred the City’s authority to charge cable operators any fee as a condition to providing broadband service over its rights-of-way.
The Sixth Circuit agreed with the Petitioners to the extent that nowhere in the Act states or implies that franchisors may regulate cable operators only as “expressly permitted in the Act.” However, the court went on to say that the issue is based on preemption—specifically, whether the actions violate or circumvent any or the Acts provisions—and not whether the Act itself authorized a franchisor’s action.
Section 544(b)(1) provides that a franchising authority, “in its request for proposals for a franchise . . . may establish requirements for facilities and equipment, but may not . . . establish requirements for video programming or other information services[.]” Also undisputed is that “information services,” as used in § 544(b)(1), includes broadband services. Under § 544(b)(1), therefore, a franchising authority cannot require payment of an information-services fee as a condition of obtaining a franchise under § 541(b)(1). Meanwhile, § 541(a)(2) provides that “[a]ny franchise shall be construed to authorize the construction of a cable system over public rights-of-way[.]” Section 541(b)(1) also makes clear, albeit by implication, that a franchise shall be construed to allow the cable operator to operate the cable system.
The Sixth Circuit reasoned:
A franchising authority in the City of Eugene therefore could not, consistent with § 544(b)(1), impose on a cable operator a seven-percent broadband fee as a condition for a cable franchise. , as explained above, is the power to grant (or deny) access to public rights-of-way to construct and operate a cable system. 47 U.S.C. § 541(a)(2), (b)(1). The City (or its franchisor) granted a cable operator there a franchise under § 541(b)(1). In doing so, the City granted the cable operator the right to use its cable system, including the right to use that system to provide information services. The City also surrendered its right to exclude the cable operator from the City’s rights-of-way. The City imposes a seven-percent “license fee” upon the same cable operator to use the same cable system on the same “rights-of-way.” Eugene City Code § 3.415(2). As applied to the cable operator, the City’s imposition of a “license fee” equal to seven percent of the operator’s revenues from broadband services is merely the exercise of its franchise power by another name. Section 544(b)(1) expressly barred the City from exercising its franchise power to that end.
This case involves important issues of preemption of local government authority as well as significant loss of revenue.
Filed October __, 2021 (Supreme Court Petition Stage)
County of Los Angeles v. Tekoh
No.
Pro Bono Author:
This case involves a deputy sheriff’s investigation of sexual assault allegations. Deputy Vega, who responded to the incident, did not Mirandize the suspect—Terence Tekoh—prior to asking questions about what had happened. Deputy Vega reasonably believed his questioning was non-custodial and did not require Miranda warnings. Tekoh disputes that and his facts differ significantly from the Sheriff’s, though both agree that Miranda warnings were not provided. Tekoh ultimately agreed to write down what happened, confessing to the crime both in writing and in conversation. Tekoh was arrested and charged in state court for the sexual assault. The prosecutor introduced the confession against him at trial as evidence of his guilt, and the judge admitted the confession—holding that the statement was not taken in violation of Miranda. Nonetheless, the jury returned a verdict of not guilty.
After his acquittal, Tekoh sued Deputy Vega under 42 U.S.C. § 1983 for violating his Fifth Amendment right against self-incrimination. This resulted in two civil trials. At the first trial, the district court refused to instruct the jury that it needed to find Deputy Vega liable for the Fifth Amendment claim if it determined that Vega violated Miranda when obtaining the incriminating statements that were later used against the suspect at his criminal trial. In doing so, the trial court held that Miranda announced a “prophylactic rule” and that a Section 1983 plaintiff could not “use a prophylactic rule to create a constitutional right” triggering Section 1983 liability. The jury returned a verdict for Deputy Vega, concluding that there had been no unconstitutional coercion of the confession.
After the first trial, the court determined it had erred in instructing the jury on a Fourteenth Amendment due process violation, rather than a Fifth Amendment self-incrimination violation. It therefore ordered a new trial. This time, the court instructed the jury to consider the circumstances of the questioning—including its location, length, and manner, as well as whether Vega provided a Miranda warning—to determine whether Vega had “improperly coerced or compelled” Tekoh’s confession. Once again, the jury rejected the Fifth Amendment claim and returned a verdict for Deputy Vega.
Tekoh appealed to the Ninth Circuit, arguing that introduction of his un-Mirandized statement at his criminal trial constituted a violation of his Fifth Amendment rights remediable under Section 1983. The panel agreed. Acknowledging a clear circuit split on the issue, the panel nevertheless held that “the use of an un-Mirandized statement against a defendant in a criminal proceeding violates the Fifth Amendment and may support a § 1983 claim” against a law enforcement officer. Tekoh v. County of Los Angeles, 985 F.3d 713, 724 (9th Cir. 2021). The panel rooted its holding in Dickerson, which held that “Miranda announced a constitutional rule that Congress may not supersede legislatively.” Dickerson v. United States, 530 U.S. 428, 444 (2000).
The Ninth Circuit denied rehearing en banc over a dissent by Judge Bumatay, joined by six other judges. Judge Bumatay contested the panel’s determination that Section 1983 supports liability for failing to adhere to the prophylactic rule announced in Miranda even when the un-Mirandized statements were freely and voluntarily given. Judge Bumatay explained that Dickerson confirmed the “constitutional underpinnings” of Miranda, but did not upset “the long line of cases characterizing Miranda as a prophylactic rule and not a ‘constitutional right.’” Tekoh v. County of Los Angeles, 997 F.3d 1260, 1270 (9th Cir. 2021) (Bumatay, J., dissenting from denial of rehearing en banc). He also explained that the panel’s ruling deepened an existing circuit split over the circumstances in which a Miranda violation can give rise to Section 1983 liability.
The issue in this case is whether a plaintiff may state a claim for relief against a law enforcement officer under 42 U.S.C. § 1983, based on an officer’s failure to provide the warning prescribed by the Supreme Court in Miranda v. Arizona.
Filed ___, 2021 (Supreme Court Petition Stage)
Filed January 24, 2020 (Fourth Circuit)
Reyazuddin v. Montgomery County
No. 21-299
Pro Bono Author: Daniel Peterson
Status: The Fourth Circuit held the employee was the prevailing party under the Rehabilitation Act for the purposes of recovering attorney’s fees because the jury found the County liable for discrimination even though she was not awarded any compensatory damages and had no enforceable judgment against the County. The County has now petitioned the Supreme Court for certiorari.
The plaintiff is blind and was employed as a customer service representative for Montgomery County’s call center. The County moved to a new call center, which came with new software and that software was not accessible to the blind. The plaintiff was denied the opportunity to move to the new call center and she sued the County, claiming that the County failed to accommodate her disability when did not transfer her to the new call center.
The plaintiff sued under the ADA and the Rehabilitation Act. The district court granted summary judgment in favor of the County on all claims, but the Fourth Circuit reversed on the Rehabilitation Claim. That claim went to trial and the jury ultimately found the County had failed to accommodate the plaintiff but awarded $0 in damages (apparently her attorneys did not request nominal or economic damages). After the jury’s verdict, the County transferred the plaintiff to her desired position.
After the transfer, the district court denied the plaintiff’s motion for injunctive relief, concluding “she was no longer employed in inadequate alternative position…” and the court also denied declaratory relief, concluding that such relief would be superfluous of the jury’s verdict. The Fourth Circuit affirmed.
The plaintiff then filed a motion for attorney’s fees, claiming she was the “prevailing party” under the Rehabilitation Act. To be a “prevailing party” under the statute, the plaintiff must receive an enforceable judgment. The district court denied her motion, finding that the term “prevailing party” is a legal term of art, and she did not meet the requirements under the statute because she received no damages from the jury and there is a difference between nominal and no damages for the purpose of determining if someone is a prevailing party. That is because the jury’s award of no damages did not “materially alter the legal relationship between the parties…” The district court explained that a judicial announcement that the defendant has violated the law, without more, does not make the plaintiff a “prevailing party” under the statute. The court also rejected the plaintiff’s argument that she “prevailed” because she was transferred to her desired position. The court reasoned that such an argument is “simply advancing the catalyst theory, which posits that a plaintiff is a prevailing party if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct” and the Supreme Court has expressly held that the “catalyst theory” cannot form the basis for attorney’s fees. The Fourth Circuit reversed, concluding that because the plaintiff won a jury verdict that found the County liable for discrimination, entitling her to equitable relief, she was the prevailing party under the statute.
The issue is whether a plaintiff is a prevailing party for the purposes of awarding attorney’s fees where her employer voluntarily accommodates her and she fails to obtain a court order or judicial award that alters the legal relationship between the parties?
Filed May 28, 2021 (Supreme Court Petition Stage)
Cortesluna v. Rivas-Villegas
No. 20-1539
Pro Bono Author: Denise Rocawich & James Touchstone
Holding: The Supreme Court granted qualified immunity to officers on a per curiam basis in this case, meaning after the Petition and IMLA’s amicus brief were filed, it did not hold oral argument or ask for additional briefing, but instead summarily reversed the lower court.
A 911 dispatch received a call from a 12-year-old girl that her mother’s boyfriend was threatening her, her sister, and her mother with a chainsaw. The child reported they had locked themselves in a bedroom. She described the boyfriend and noted he was drinking. Officers were dispatched to the scene.
When the officers arrived, they saw Cortesluna through a window but did not see or hear a chainsaw. The officers formulated a plan, which included using less lethal force and went and knocked on the door to ask Cortesluna to come outside and speak with them. They announced themselves and when Cortesluna came to the door, he was holding a large metal object that appeared to be a crowbar. The officers ordered him to drop the weapon and come outside.
The plaintiff dropped the metal object, put his hands up and came outside. The officers ordered him to his knees at which point, the officers noticed a knife in his pocket. They ordered him not to put his hands down (toward the knife) but to put his hands up. Cortesluna lowered his head and hands (toward the knife) and one of the officers, Officer Leon, immediately shot him with two rounds from a bean bag shotgun. He then put his hands up and they ordered him to get down on the ground, and he complied. Officer Rivas-Villegas then put his knee on Cortesluna’s back for no more than 8 seconds (there is a video of the incident) in order to get him restrained in handcuffs. This is a common police tactic which is used to prevent officer injury where a suspect is known to be armed, as was the case here.
Cortesluna brought suit against the officers, claiming excessive force for both the use of the bean bag shotgun and for the knee on his back for 8 seconds. The Ninth Circuit concluded that the officer who fired the beanbag gun did not violate the Fourth Amendment given the rapidly unfolding events and the threat to the officers when Cortesluna was reaching toward the knife in his pocket. As to officer Rivas-Villegas, however, the Ninth Circuit concluded that he violated the Fourth Amendment right to be free from excessive force “by leaning too hard” on Cortesluna’s back, allegedly causing injury because by the time he did so, the threat had passed. The Ninth Circuit also denied qualified immunity, concluding it was clearly established that “police may not kneel on a prone and nonresisting person’s back so hard as to cause injury.”
The dissenting judge chastised the majority for downplaying “the dangers officers face in making arrests” “from the comfort of [their] chambers,” noting that the “suggestion that Cortesluna suddenly no longer posed a risk at the moment the beanbag shots were fired … is factually unreasonable.” The dissent also pointed out that
[a]fter being shot with the beanbag rounds and starting to get on the ground, Cortesluna still had the knife in his left pocket—i.e., on the side where Rivas-Villegas placed his knee. Using a knee on that side to ensure that Cortesluna stayed down and did not make a motion toward the knife was eminently reasonable in light of what the officers knew about the situation.
Filed April 22, 2021 (Supreme Court Petition Stage)
Portland v. FCC
No. 20-1354
Pro Bono Author: Jef Pearlman
Status: The Supreme Court denied the petition for certiorari
In this case, the FCC released a series of Report and Orders and Declaratory Rulings regarding streamline deployment of wireless and wireline infrastructure to prepare for the 5G wave in the wireless sector, and to bridge the digital divide in both the wireless and wireline sectors. These orders seek to streamline broadband deployment nationwide through deregulation of the industry.
The Order significantly limits the authority of local governments in managing the public right of way. The Order restricts requirements local governments may impose on wireless carriers (for example, no undergrounding requirements are allowed). It also restricts the fees a local government may charge a carrier to cost-based fees, allows for large batched applications, imposes strict shot clocks with less time for local governments to review applications, and forbids the implementation of moratoria. Finally, the Order broadly prohibits any local rules that prevent wireless expansion. Local governments may still impose aesthetic requirements.
Many local governments sued, arguing that the FCC’s order exceeds its statutory authority, that the order violates the Administrative Procedures Act (APA) and that it violates the Constitution based on the Tenth and Fifth Amendments. Three of the four major wireless carriers are participating in the suit, arguing that the FCC did not go far enough by failing to provide a deemed granted remedy for wireless carriers.
The Ninth Circuit largely ruled in favor of the wireless carriers / FCC in this case, rejecting the constitutional arguments and concluding that the agency should be afforded deference in interpreting the Act, concluding the order was not otherwise arbitrary or capricious.
The issues raised in the petition for certiorari are: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in upholding the Federal Communications Commission’s interpretation of “effect of prohibiting” in light of its plain meaning, lack of a limiting standard and National Cable & Telecommunications Association v. Brand X Internet Services; and (2) whether the divided 9th Circuit erred in affirming the FCC’s interpretation of 47 U.S.C. § 253 to mandate access, at cost, to public property for private commercial use.
IMLA’s brief focused on whether the FCC’s Order constitutes an unlawful taking of local government property without just compensation by the federal government.
Filed February 24, 2021 (Supreme Court Petition Stage)
City of Hayward v. Stoddard-Nunez
No. 20-2006
Pro Bono Author: Nadia Sarkis & Timothy Coates
Status: The Supreme Court denied certiorari
In this case, a police officer had a civilian with him on a ride along. Around 3 am, the officer observed a Honda swerving in and out of its lane and the officer proceeded to follow the vehicle, concerned that the driver was intoxicated and a danger to other people on the road. The officer observed that there was a passenger in the front seat of the Honda. The officer followed the Honda into a shopping center parking lot after it ran a red light and the officer positioned his car at the only entrance / exit point of the parking lot with the Honda at the other end. The officer got out of his car and shone his spotlight on the Honda. The civilian on the ride along also exited the vehicle and remained near the patrol’s passenger door.
The officer told the driver repeatedly to turn off the car and exit the vehicle. These commands were ignored. Instead, the driver turned his car around to face the police cruiser and parking lot exit. The police officer yelled “don’t do it, turn the car off!” but instead, the driver accelerated toward the officer and civilian (both of whom heard screeching tires). The officer drew his gun and when the vehicle was ten feet from his car and the civilian, the officer opened fire while simultaneously trying to shove the bystander out of the way. The Honda made contact with the patrol vehicle’s side door as it swerved slightly past the cruiser.
The officer ultimately fired nine shots from the time he started shooting (as the car was coming toward him and the bystander). Once the car was past him, the officer testified that he stopped shooting. However, there was evidence that a bullet went in through the front passenger side window of the Honda. The driver was not struck, but the passenger was hit with two bullets and ultimately died. The driver was charged with the passenger’s murder and ultimately pled guilty to vehicular manslaughter.
The passenger’s estate brought a Section 1983 action against the officer. The district court granted summary judgment in favor of the officer and concluded that based on the direct threat of the car to the officer and bystander, the amount of force used was reasonable. The court alternatively held that the officer was entitled to qualified immunity. The Ninth Circuit reversed, concluding there were genuine issues of material fact as to whether the car posed a threat to the officer and bystander at the time shots were fired. The court similarly reversed on qualified immunity, concluding that if the car was moving slowly as the plaintiff / appellant contended, the law was clearly established that the officer could not use deadly force because under Ninth Circuit precedent, he could have just stepped to the side.
The issues in this case are:
- Whether a fleeing driver’s sudden swerve deprives a shooting officer of qualified immunity when the split second before he swerved he was driving directly at the officer and a civilian?
- Whether an unintended victim-passenger of a fleeing vehicle is “seized” for purposes of the Fourth Amendment?
Filed January 8, 2021 (Supreme Court Petition Stage)
Reagan National Advertising of Austin v. City of Austin
Pro Bono Author: Amanda Karras, Erich Eiselt, & Deanna Shahnami
At issue in this case is the City of Austin’s sign code (before it was amended) which defined an “off-premise[s] sign” as “a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site.” The Sign Code did not expressly define “on-premise[s] sign,” but it did use the term “on-premise[s] sign” in some of its provisions.
The Sign Code permitted “on-premise[s] signs” to be “electronically controlled changeable copy signs” (i.e., “digital signs”). As a result, on-premises non-digital signs could be digitized, but off-premises non-digital signs could not. The City’s stated general purpose in adopting the Sign Code is to protect the aesthetic value of the city and to protect public safety.
The City of Austin denied the applications for sign digitization of commercial messages to the plaintiffs in this case because its Sign Code did not allow the digitization of off-premises signs. The plaintiffs sued, claiming the distinction between on and off-premise signs was unconstitutional under Reed.
The district court denied the plaintiffs’ requests for declaratory judgment, concluding that the City’s sign code was content neutral and applied intermediate scrutiny in upholding the sign code. The Fifth Circuit reversed, concluding that the distinction between “on-premise” and “off-premise” is content based and therefore “presumptively unconstitutional” under Reed and subject to strict scrutiny. The Fifth Circuit noted that Justice Alito’s concurrence in Reed, which was joined by two other Justices, specifically listed distinctions between on-premise and off-premise signs as those that would not be considered content based. The court, however, rejected Justice Alito’s concurrence in Reed and explained that in order to determine if a sign is on-premise or off-premise, “one must read the sign and ask: does it advertise ‘a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site’”? The court rejected the idea that this was a time / place / manner restriction, indicating that just because you have to determine the location of the sign does not render it content neutral because you must also ask who the speaker is and what the speaker is saying, which are both hallmarks of content based inquiries. The Fifth Circuit then concluded that the City failed to meet strict scrutiny. The Fifth Circuit acknowledges a circuit split on this issue between itself and the Sixth Circuit on one side and the D.C. Circuit.
Filed January __, 2021 (Supreme Court Petition Stage)
New York v. Department of Justice
Pro Bono Author: Justin Houppert
By way of background, in 2017, the Department of Justice began imposing immigration related conditions to the Byrne Jag formula grant. Many local governments have sued the DOJ, claiming the conditions are ultra vires because the DOJ does not have statutory authority to impose the conditions, which are unrelated to the objectives of the Byrne Jag grant, a formula grant. They also argue that by imposing the conditions, the DOJ is violating the Spending Clause and the Tenth Amendment of the Constitution. So far, the First, Third, Seventh, and Ninth Circuits and every district court to review the case have all issued injunctions, concluding the DOJ exceeded its authority under the Administrative Procedure Act when it imposed the conditions. Some of these courts have also concluded the imposition of the conditions violates the Constitution, but not every court has reached the constitutional question.
The Second Circuit, in the New York City case is the only court to conclude that the imposition of the conditions by the DOJ was lawful.
Filed December 22, 2020 (Supreme Court Petition Stage)
New York v. Barr
No. 20-795
Pro Bono Author: Justin Houppert
Status: The case was dismissed pursuant to a joint stipulation of dismissal after the new administration came into office.
New York State & New York City will be filing a petition for certiorari in their Byrne Jag lawsuit. IMLA has participated in many similar cases in the circuit courts and we plan to join, based on past participation, an amicus brief being drafted by the City of Chicago in this case.
By way of background, in 2017, the Department of Justice began imposing immigration related conditions to the Byrne Jag formula grant. Many local governments have sued the DOJ, claiming the conditions are ultra vires because the DOJ does not have statutory authority to impose the conditions, which are unrelated to the objectives of the Byrne Jag grant, a formula grant. They also argue that by imposing the conditions, the DOJ is violating the Spending Clause and the Tenth Amendment of the Constitution. So far, the First, Third, Seventh, and Ninth Circuits and every district court to review the case have all issued injunctions, concluding the DOJ exceeded its authority under the Administrative Procedure Act when it imposed the conditions. Some of these courts have also concluded the imposition of the conditions violates the Constitution, but not every court has reached the constitutional question.
The Second Circuit, in the New York City case is the only court to conclude that the imposition of the conditions by the DOJ was lawful. The DOJ has petitioned the Supreme Court for certiorari from the Ninth Circuit’s ruling in favor of San Francisco. New York City / New York State plan to seek certiorari in their case and have requested IMLA’s participation as an amicus. Because there are cross petitions with local governments on each side of the issue, IMLA plans to join a very narrow brief being drafted by the City of Chicago in the New York case (Chicago is one of the jurisdictions with a favorable decision below). The exact contours of the brief are being discussed, but the brief will likely ask the Court to hold the case pending the incoming administration to determine if the case is moot as it is likely that a Biden administration would withdraw the immigration conditions from the formula grant.
Filed November 2, 2020 (Supreme Court Petition Stage)
Polk County v. J.K.J & M.J.J.
No. 20-427
Pro Bono Author: John Reeves
Status: The Petition for Certiorari was denied.
Polk County maintained policies categorically prohibiting correctional officers from sexually assaulting inmates and the County trained its officers that sexual contact with inmates was prohibited by County policy and state criminal law. Despite these policies, officer Christensen sexually assaulted two inmates. He also admitted that he knew of these policies and that he did not need additional training to understand them. He actively concealed his misconduct from others in the jail and there was no evidence of a pattern of inmate sexual assault within the jail. As soon as allegations were made against him, the County commenced an investigation and he resigned upon being confronted. He was then criminally prosecuted and he is now in prison serving a 30-year sentence.
The inmates sued both Christensen and the County under Section 1983. A jury returned a verdict for the plaintiffs, but a 3-judge panel for the Seventh Circuit reversed in part, holding that the County was entitled to judgment as a matter of law. The Seventh Circuit sitting en banc reversed over 4 dissenting judges, concluding that there was enough evidence for a jury to find Monell liability based on a single-incident because a jury could reasonably find that it was “so obvious” that the County’s policies and training were deficient that the County’s failure to properly train its officers on the prevention and detection of sexual assault was the moving force behind the sexual assault by Christensen and amounted to deliberate indifference. In other words, the court concluded it was “so obvious” that an inmate would violate criminal law and sexually assault inmates, that the County’s failure to address prevention and detection of sexual assault adequately amounted to a constitutional violation.
Although noting this is not a pattern and practice case, the court relied in part on a prior instance where a different guard made sexual comments and advances toward an inmate (but did not sexually assault her). The court concluded that a “reasonable jury could have viewed the County’s learning of [the other guard’s] sexual exploitation of N.S. as sounding an institutional alarm, making it ‘highly predictable,’ if not certain, that a male guard would sexually assault a female inmate if the County did not act.”
In one of the two separate dissents, Judge Easterbrook explains the fallacy with the majority’s position as follows:
The majority recognizes that the County’s stated policy— no sexual contact between guards and inmates—satisfies the Constitution. It faults the County for failing to train guards about that policy. Yet the Constitution does not require training. See Connick v. Thompson, 563 U.S. 51 (2011). Nor does the Constitution require every municipality to implement current understandings of best practices, such as the Prison Rape Elimination Act of 2003, 34 U.S.C. §§ 30301–09 (PREA). The duty is to avoid unconstitutional policies. We are supposed to assess the validity of the policies—that is to say, the policymakers’ decisions—not how well subordinates implement those policies.
…
The Jail made sure that every guard knew about this rule [prohibiting sexual contact between guards and inmates]. What training is required to get guards to grasp it? The problem is not a want of comprehension (as in Canton’s hypothetical) but a want of compliance. Yet subordinate employees’ failure to comply with a valid policy is not a ground of liability against a municipality.
The question presented in this case is whether the “single-incident” theory of Monell liability may be used to hold a municipality liable under §1983 on the theory that its failure to do more to prevent an employee from committing crimes that he had been trained and knew were expressly forbidden by municipal policy (and the law) was tantamount to embracing a policy of condoning constitutional violations.
Filed October 29, 2020 (Supreme Court Petition Stage)
City of Miami Gardens v. Wells Fargo
Pro Bono Author: Paul Koster
Status: The Petition for Certiorari was denied.
This case is similar to one in which IMLA participated as an amicus at the Supreme Court (City of Miami v. Bank of America) and involves claims that Wells Fargo engaged in a decade-long pattern of discriminatory lending in the residential housing market that caused the City of Miami Gardens economic harm. The City claims that the bank targeted black and Latino customers in the City for predatory loans that carried more risk, steeper fees, and higher costs than those offered to identically situated white customers, and created internal incentive structures that encouraged employees to provide these types of loans.
The City alleged that by steering minorities toward these predatory loans, Wells Fargo caused minority-owned properties throughout the City to fall into unnecessary or premature foreclosure, depriving the City of tax revenue as property values decreased and also simultaneously forcing the City to spend more on municipal services such as police, firefighters, trash and debris removal, etc., to combat the resulting blight.
This case was stayed pending the outcome of the aforementioned Supreme Court merits case, which centered on proximate cause under the Fair Housing Act. After the Supreme Court remanded the City of Miami v. Bank of America case, the district court in this case lifted the stay, but bifurcated the case such that the City needed to prove that at least one violation of the FHA occurred within a 2 -year period (a requirement for the continuing violation under the FHA). To that end, the court limited discovery to that 2-year period and mandated that discovery be completed within 30 days. The district court ruled in favor of the bank on summary judgment, finding that no violations occurred within the relevant limitations period.
On appeal of the statute of limitations issue, the Eleventh Circuit sua sponte directed the parties to brief standing despite the fact that the City did not have adequate discovery on that issue. The Eleventh Circuit concluded that the City lacked standing because its threatened injuries were too conjectural and hypothetical.
In a dissent from denial rehearing en banc, Judge Wilson, joined by Judge Martin explained that the panel failed to adhere to Supreme Court precedent, Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015), which explains that “elementary principles of procedural fairness required that the [court], rather than acting sua sponte, give the [plaintiff] an opportunity to provide evidence” supporting its standing. Moreover, Judge Wilson explains that
unlike in Alabama Legislative Black Caucus, the City of Miami Gardens had no opportunity to prove its standing, much less the opportunity of a trial. Not only that—despite its repeated requests, the City never even got the necessary discovery to prove its standing, something the Alabama Legislative Black Caucus plaintiff didn’t need.
The issue will focus on whether the Eleventh Circuit departed from Alabama Legislative Black Caucus by sua sponte dismissing the City’s case based on standing when the district court had limited discovery, thereby limiting the City’s ability to prove standing.
Filed July 13, 2020 (Supreme Court Petition Stage)
Savory v. Cannon
No. 19-1360
Pro Bono Author: Steven Miller
Status: Certiorari was denied.
Savory was convicted of murder, but an appellate court in Illinois overturned his initial conviction, finding the police officers violated his Miranda rights when they obtained his confession. He was retried four years later without his confession and again convicted of murder and sentenced to 40 to 80 years. His conviction was affirmed on appeal and while in prison, he exercised every option for collateral relief including habeas relief and petitioning Illinois governors for clemency.
In December 2006, he was paroled and in December 2011, Illinois’ governor commuted his remaining parole, thereby terminating his custody but leaving his conviction intact. On January 12, 2015, on his last day in office, Governor Quinn granted Savory a general pardon, which “acquitted and discharged” him of further imprisonment and restored many of his rights of citizenship, but which was not a declaration of his innocence. Illinois does have a pardon based on innocence, which the governor could have provided, but did not.
On January 11, 2017, more than five years after his release from custody and two years after receiving his pardon, Savory sued the police officers who arrested him under §1983 for coerced confession, deprivation of liberty without probable cause, deprivation of a fair trial, and failure to intervene. The district court dismissed Savory’s suit with prejudice on the basis that Heck v. Humphrey, 512 U.S. 477 (1994) tolled his claims through his imprisonment, but not after his release from custody and his claim therefore was untimely.
The Seventh Circuit reversed, concluding that Heck continued to toll the accrual of Savory’s suit until he received his pardon because the pardon acted as a favorable termination of his case even though Savory was no longer a prisoner when he brought suit. The Seventh Circuit en banc heard the case and affirmed the panel’s decision, concluding that notwithstanding Savory’s release from prison, “he had no complete cause of action until he received a favorable termination of his conviction, which occurred when the governor issued a pardon for the subject conviction.”
The County is petitioning the Supreme Court for certiorari on the following issues:
- Does the limitations period for a §1983 claim that necessarily implicates a criminal conviction accrue when a prisoner is released from custody, as four circuits hold, or when the ex-prisoner persuades either a governor to pardon him or a state court to overturn his conviction, as seven circuits hold?
- When extended to ex-prisoners, does Heck’s favorable termination rule, which is satisfied by a gubernatorial pardon that can be perpetually pursued, imprudently eliminate the finality otherwise afforded §1983 defendants by statutes of limitations and preclusion doctrines?
Filed March 2, 2020 (Supreme Court Petition Stage)
Craig v. O’Kelley
No. 19-956
Pro Bono Author: Christopher Balch
Status: Certiorari was denied.
A hunting party in rural Georgia called 911 after being told they were trespassing on private property and threatened with bodily harm by the individual. Police were dispatched and spoke with the hunting party and then proceeded to speak to the individual who had threatened them, Mr. Harley. When police arrived at his residence where he lived with his mother and step-father, they eventually found Mr. Harley outside the home (on his property) shirtless with a gun strapped to his chest.
The officers ordered Mr. Harley to put the gun down and get on the ground, but he refused and told the officers to keep trespassers off his property. A tense back and forth ensued for the next 30 minutes with the officers trying to talk to Harley and Harley refusing to put down his gun, though it remained in the holster for most of the time. He told the officers several times to “go ahead and shoot me” and the officers assured him that they did not want to shoot him.
Harley told the officers he was tired and wanted to go to bed and that he was going inside to get a glass of water. While he was gone, the officers crossed the fence line onto his property armed with shotguns. Harley then returned, told the officers they were trespassing and that he wanted to go to bed. One of the deputies asked Harley to come closer and talk to her and told him she was unarmed. She asked him to put his gun down and he still refused.
About 30 seconds later, one of the officers who had crossed onto his property fired three beanbag rounds and one knocked Harley down. At this point, Harley drew his pistol and shot at the police. The officers returned fire and killed him.
His estate sued under Section 1983, claiming that the officers violated the Fourth Amendment by seizing Harley within the curtilage of his home without a warrant and then using force on him that foreseeably caused his death. The district court dismissed the complaint at the motion to dismiss stage. The Eleventh Circuit reversed, concluding that the officers did not have exigent circumstances or consent to enter the curtilage of Harley’s home. The court therefore concluded that the officers violated the Fourth Amendment by seizing him within the curtilage of his home and because that was unlawful, “there was no basis for any threat or any use of force.”
The Eleventh Circuit next concluded that the right was clearly established based on its own precedent, Moore v. Pederson, issued 9 days before the incident occurred. In Moore, the Eleventh Circuit concluded that an “officer may not conduct a Terry-like stop in the home in the absence of exigent circumstances, consent or a warrant.” The court therefore concluded that “binding precedent clearly established at the time of the encounter … that a seizure or entry within the home without a warrant or exigent circumstances violates the Fourth Amendment’s prohibition on unreasonable searches and seizures.”
The questions presented in the petition for certiorari as relevant for our purposes are: 1) Whether a panel decision decided nine days before the relevant conduct in question constitutes clearly established law to deprive government officers of qualified immunity; 2) What case law can establish the law for the purposes of qualified immunity (See D. C. v. Wesby, 138 S. Ct. 577, 591 (2018) (“We have not yet decided what precedents—other than our own—qualify as controlling authority for purposes of qualified immunity.”).
Filed February 10, 2020
Filed October 17, 2019 (Supreme Court Petition Stage)
City of Chicago v. Fulton
No.
Pro Bono Author: Alex Dugan, Scott Smith, Stephen Parsley
Held: The mere retention of estate property after the filing of a bankruptcy petition does not violate 11 U.S.C. § 362(a)(3), which operates as a “stay” of “any act” to “exercise control” over the property of the estate.
The case involves 4 bankruptcy cases that were consolidated on appeal to the Seventh Circuit. In each, the City of Chicago impounded the debtor’s respective vehicles based on significant accumulated unpaid fines and penalties for parking tickets, moving violations, and driving with suspended licenses. The City has an ordinance which provides that the City may impound vehicles of individuals with three or more unpaid violations for the “purpose of enforcing” its traffic regulations until the owner of the vehicle pays the outstanding fines and penalties. The Chicago Municipal Code further provides that “[a]ny vehicle impounded by the City or its designee shall be subject to a possessory lien in favor of the City in the amount required to obtain release of the vehicle.”
In each of the 4 cases at issue here, after the City had impounded the owner’s vehicles, each owner filed for bankruptcy. The Bankruptcy Code’s automatic stay provision provides that a petition for bankruptcy operates as a stay of “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3). The City did not release the debtor’s vehicles back to the trustee of the bankruptcy estate and each bankruptcy court held that the City violated the stay by “exercising control” over property of the bankruptcy estate and ordered the City to turn over the vehicles immediately.
The City of Chicago argued that holding a vehicle that was impounded before the debtors filed their bankruptcy petitions did not violate the Bankruptcy Code’s automatic stay provision. Further, the City argues that the Bankruptcy Code provides a mechanism for a debtor to seek the turnover of property being held by a creditor through a possessory lien through an adversary proceeding and the court should therefore find an exception for the City’s retention of the vehicles from the automatic stay under 11 U.S.C. § 362(b)(3). The City also argued that subsection (b)(4) which provides that the stay authorized by the Act does not extend to:
. . . the commencement or continuation of an action or proceeding by a governmental unit . . ., to enforce such governmental unit’s or organization’s police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit’s or organization’s police or regulatory power;
This police power exception often arises in bankruptcy proceedings where a debtor seeks to avoid local regulations affecting its business.
The Seventh Circuit rejected these arguments and held in favor of the debtors. By way of background, the Seventh Circuit had previously addressed this issue in Thomson v. General Motors Acceptance Corp., which had held in a case where a creditor had repossessed a vehicle prior to the filing of the bankruptcy petition that a “creditor must comply with the automatic stay and return a debtor’s vehicle upon her filing of a bankruptcy petition.” The City requested the Seventh Circuit overrule Thomson, which the court in this case declined to do. The Seventh Circuit explained that the “[t]he primary goal of reorganization bankruptcy is to group all of the debtor’s property together in his estate such that he may rehabilitate his credit and pay off his debts; this necessarily extends to all property, even property lawfully seized pre‐petition.”
The issues in this case are:
- Whether passively holding a vehicle after a chapter 13 case is filed violates the Bankruptcy Code’s automatic stay provision.
- Whether the exception to the automatic stay in sections 362(b)(3) and (b)(4) of the Bankruptcy Code for acts to maintain or continue the perfection of an interest in property allows the City to retain an impounded vehicle after a chapter 13 case is filed.
Filed January 13, 2020 (Supreme Court Petition Stage)
Hunter v. Cole
No. 19-753
Pro Bono Author: Megan Mahan
Status: Certiorari was denied.
The issues in this case are whether, (1) if the barrel of a gun is not yet pointed directly at an officer, clearly established federal law prohibits police officers from firing to stop a person armed with a firearm from moving a deadly weapon toward an officer if the officer has not both shouted a warning and also waited to determine whether the imminent threat to life has subsided after the warning; and (2) whether a police officer who inaccurately reports his perceptions of events during a dynamic shooting encounter violates clearly established rights under the 14th Amendment.
This is the second time IMLA has filed an amicus brief in support of a petition for certiorari in this case. The first time, the Supreme Court granted, vacated, and remanded the case back to the Fifth Circuit in light of Luna v. Mullenix.
After remand, a majority of the Fifth Circuit sitting en banc, over dissents by seven judges, continued to deny immunity to Officer Hunter and Lieutenant Cassidy based on the opinion Cole’s action of turning, gun in hand and finger on the trigger, toward Officer Hunter posed no threat, and the rationale that no existing factually similar precedent squarely governing the situation the officers encountered was necessary to fairly warn the officers their actions of firing in response to Cole’s actions obviously violated clearly established law. In his dissent from the en banc decision, Judge Jerry Smith summarized the result as follows:
Abandon hope, all ye who enter Texas, Louisiana, or Mississippi as peace officers with only a few seconds to react to dangerous confrontations with threatening and well-armed potential killers. In light of today’s ruling and the raw count of judges,1 there is little chance that, any time soon, the Fifth Circuit will confer the qualified-immunity protection that heretofore-settled Supreme Court and Fifth Circuit caselaw requires.
Filed October 16, 2019 (Supreme Court Petition Stage)
City of Cleveland v. Jackson
No.
Pro Bono Author: Timothy Coates
Status: Certiorari was denied.
In 1975, Jackson, Ajamu, and Bridgeman (the “plaintiffs”) were convicted of murder. Their convictions were based largely on the purportedly eyewitness testimony of Edward Vernon, who then was twelve years old. In 2014, nearly forty years later, Vernon recanted, disclosing that police officers had coerced him into testifying falsely by threatening to send his parents to jail if he did not testify against the plaintiffs. Vernon’s recantation led to the overturning of the plaintiffs’ convictions as there was no other evidence linking them to the crime.
The police officers allegedly failed to turn over exculpatory evidence to the plaintiffs at the time, including that Vernon did not identify them in the police line-up as suspects and that his statement was coerced.
The plaintiffs brought a wrongful conviction suit under Section 1983 as well as state law claims against the three police officers involved. They also brought a Monell suit against the City based on a failure to train allegation as well as an official municipal policy allegation. At the time of the suit, two of the three police officers involved were deceased. The third had dementia and died during the pendency of this case.
The plaintiffs sought leave to amend the complaint to substitute the administrators of the police officers’ estates as defendants. The district court denied that motion, reasoning that under Ohio law, a Section 1983 claim does not survive the death of the tortfeasor.
There is no federal law addressing whether Section 1983 actions survive the death of the tortfeasor, so under Section 1988, courts must turn to an analogous state law on the question of survivorship. The plaintiffs argued the analogous state law was the personal injury law, which does survive the death of the tortfeasor under Ohio law, whereas the defendants argued that the most analogous state law is malicious prosecution, which does not, under Ohio law, survive the death of the tortfeasor.
The Sixth Circuit split from a number of other circuits on the question of survivorship and concluded that under Section 1983, the survivorship question is governed by the state’s personal injury action, regardless of the type of injury. The court reasoned that all § 1983 claims must be treated the same way for survival-of-claims purposes, just as they are for statute-of-limitations purposes.
The Sixth Circuit also found that the police officers were not entitled to qualified immunity for their alleged Brady violations because at the time in 1975, according to the court, it was clearly established that claims could be based on police officer conduct as distinct from prosecutor’s obligations. The Sixth Circuit came to this conclusion based on a handful of circuit courts from that time period having held that police officers had a duty to disclose, but notably, neither the Sixth Circuit nor the Supreme Court had addressed the issue at that time. Additionally, other circuits have afforded officers in this scenario qualified immunity based on the fact that the law was not clearly established in this time-period (i.e., the mid-1970s) that a police officer could be liable under Brady, rather than a prosecutor, thus there is a clear circuit split on that issue.
Finally, as relevant here, the Sixth Circuit concluded that the City could potentially be liable under Monell for having an alleged policy informing officers that they did not have to disclose exculpatory evidence to prosecutors and for a failure to train theory of liability. Importantly for our purposes, on the failure to train claim, the court concluded that the City was deliberately indifferent despite the fact that there were no incidents of alleged Brady violations prior to this case. Thus, the failure to train claim was based on a single alleged Brady violation.
The issues in this case were:
- Whether a Section 1983 action for wrongful conviction survives the death of the tortfeasor;
- Whether in 1975, the constitutional rights allegedly violated by the officers – i.e., the Brady violations – were sufficiently clearly established to deprive the officers of the protection of qualified immunity; and
- Whether a single incident of a police officer allegedly failing to disclose exculpatory information to the defense can give rise to a showing of deliberate indifference for a Monell failure to train claim.
Filed October 3, 2019 (Supreme Court Petition Stage)
Hamer v. Trinidad
No. 19-283
Pro Bono Author: Lindsay Rose & Wynetta Massey
Status: Certiorari was denied.
Hamer is in a motorized wheelchair and for the purpose of this lawsuit, is a “qualified individual” with a disability under Title II of the ADA. He does not own a car and primarily uses the public sidewalks in Trinidad to get around. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Notably, it does not contain a statute of limitations provision.
Hamer contends that many of the City’s sidewalks and curb cuts that allow access onto those sidewalks do not comply with Title II of the ADA. He informed the City Council on April 2014 that he had personally counted seventy-nine non-compliant sidewalks / curb cuts throughout the city. He also filed a complaint with the DOJ and the DOJ subsequently audited the city around this time. In response to the complaints and DOJ audit, the city began repairing non-compliant sidewalks.
Despite the city’s efforts to get into compliance, the plaintiff brought suit in October 2016 for violations of Title II of the ADA seeking declaratory and injunctive relief, as well as monetary damages and attorney’s fees.
The district court granted summary judgment to the city on the grounds that the plaintiff’s claim was not timely as it was brought more than two years after he must have discovered the non-compliant sidewalks (given his complaint to the city council in April 2014).
The Tenth Circuit reversed, concluding that under the “repeated violations” doctrine, the plaintiff could recover for any injury that occurred within the last two years. The Tenth Circuit reasoned that each time the plaintiff “was denied access to [the sidewalks and curb cuts], the City of Trinidad committed discrimination within the meaning of the ADA…and a claim for damages arose under the statute.” Thus, under the Tenth Circuit’s rule, the plaintiff can recover for any injuries that occurred within the prior two years before bringing suit, but not for any injuries that occurred before that time. The court rejected the notion that a public entity violates Title II “only when it initially constructs or creates a non-compliant service, program, or activity” and instead, concluded that a public entity violates the statute “repeatedly until it affirmatively acts to remedy the non-compliant service, program, or activity.”
The issue in this case was when the statute of limitations for a claim under Title II of the ADA accrues.
Filed September 25, 2019 (Supreme Court Petition Stage)
City of Boise v. Martin
No. 19-247
Pro Bono Author: Katie Zoglin
Status: Certiorari was denied.
According to available data, there were 867 homeless individuals in Ada County, which is where the City of Boise is located, though this is likely an undercount. There are currently 3 homeless shelters operating in Boise, which are the only shelters in Ada County and between the 3 shelters, there are 354 beds and 92 overflow mats. One shelter imposes no religious requirements on its residents and has 96 beds available. Two other shelters are operated by Christian faith nonprofits and they contain religious imagery and information and one of them also runs a “Discipleship Program,” an “intensive, Christ-based residential recovery program” where “religious study is the very essence.”
Boise adopted a Camping Ordinance, which makes it a misdemeanor to use “any of the streets, sidewalks, parks, or public places as a camping place at any time.” Boise City Code § 9-10-02. The Camping Ordinance defines “camping” as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence.” Id. Boise also has a Disorderly Conduct Ordinance, which bans “[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission of the owner or person entitled to possession or in control thereof.”
The plaintiffs, who are a number of homeless individuals, were each cited by Boise police for violated one or both of these ordinances and with one exception, sentenced to time served. One plaintiff testified that he reached the limits for how long he could stay in the shelters and refused to enter the Discipleship Program because of his religious beliefs. Because he had no other options on where to sleep, he slept outside for several weeks.
After the litigation started, the Boise Police Department issued a special order that prohibited the enforcement of either ordinance at issue against a homeless person on public property on any night when no shelter had any available overnight space.
The plaintiffs contend that the City’s prosecution of them for sleeping outside on public property violated the Eighth Amendment’s prohibition of cruel and unusual punishment and the Ninth Circuit agreed. Specifically, the court held that the ordinance violated the Eighth Amendment “insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.” The court indicated that the Eighth Amendment places substantive limits on what the government may criminalize and where the “conduct at issue here is involuntary and inseparable from status…given that human beings are biologically compelled to rest, whether by sitting, lying, or sleeping,” the government cannot “criminalize conduct that is unavoidable consequence of being homeless…” The court explained that its holding was limited to the circumstances where there were no beds available in shelters.
The issue before the Court was whether a city’s anti-camping ordinance violates the Eighth Amendment.
Filed March 25, 2019 (Supreme Court Petition Stage)
Manuel v. City of Joliet
No. 18-1093
Pro Bono Author: Geoffrey Eaton
Status: The petition for certiorari was denied on June 28, 2019.
Manuel was arrested and charged with possessing unlawful drugs. A judge decided that he would be held in jail, pending his trial. 47 days later, it was discovered that the pills that he was carrying were legal, and the prosecutor dismissed the charges against him. In 2016, the Supreme Court held that Manuel was entitled to seek damages on the grounds that his detention without probable cause to hold him violated the Fourth Amendment. However, the Justices remanded on the question of whether he sued in time. The relevant statute of limitations is 2 years, but the question is when the claim accrued.
The important dates are:
- March 18, 2011 Manuel is arrested
- March 18, 2011 a judge orders Manuel to remain in custody for trial
- May 4, 2011, a prosecutor dismisses the charges
- May 5, 2011 Manuel is released
- April 22, 2013, Manuel sues under Section 1983.
The City maintains that the claim accrued when the judge ordered Manuel held for trial as this is a Fourth Amendment claim. Manuel argues that his claim accrued and the clock started to run when the prosecutor dismissed charges against him and he received a favorable disposition of his case. The Seventh Circuit rejected both arguments and held that his claim accrued when he was released. The court reasoned that “the wrong is the detention rather than the existence of criminal charges, the period of limitations [therefore] also should depend on the dates of detention.”
The issue in this case was when does a Fourth Amendment claim involving fabrication of evidence accrue?
Filed March 25, 2019 (Supreme Court Petition Stage)
Johnson v. Winstead
No. 18-1013
Pro Bono Author: Sarah Shalf
Status: The petition for certiorari was denied on June 28, 2019.
Johnson alleges that statements he made to Chicago police about his involvement in a shooting death were made without proper Miranda warnings. Johnson admitted that he drove the killer to the shooting, and he was charged with murder under an accountability theory. Johnson lost a motion to suppress. In October 2007, the detectives testified about Johnson’s statements and the jury found him guilty. The Illinois appellate court reversed based on an instructional error and remanded for a new trial. In March 2012, the detectives again testified about Johnson’s statements at the second trial and he was again convicted. The Illinois appellate court again reversed; this time based on insufficient evidence to support accountability liability.
In August 2015, Johnson sued the detectives under Section 1983, alleging that they violated his Fifth Amendment right against self-incrimination by giving testimony about his unwarned statements at trial. The detectives argued that his claims were time barred as they were brought more than 2 years after his statements were introduced.
According to the Seventh Circuit, Heck v. Humphrey, 512 U.S. 477 (1994) blocks a Section 1983 claim that necessarily implies the invalidity of a criminal conviction unless the plaintiff can show that the conviction has already been invalidated. A corollary to that rule, the Seventh Circuit explained is that Heck defers accrual until the conviction is overturned. In this case, the Seventh Circuit noted that the constitutional violation did not occur until the alleged un-Mirandized statements were entered at trial and that normally, the claims would accrue at that time. However, the court reasoned that a claim seeking damages for an unwarned statement being entered into evidence at trial, which resulted in a wrongful conviction, necessarily implies the invalidity of the conviction and under Heck deferred accrual applies. In this case, claims related to Johnson’s first conviction were time barred, but the Seventh Circuit held that his second conviction was not reversed until 2014 and he sued less than 1 year later, making his claims timely.
Chicago argues that under Wallace v. Kato (2006), a Section 1983 claim accrues when the constitutional violation is complete and once the plaintiff has a present cause of action, that is when the plaintiff can sue. Because there was no conviction at the time of the alleged constitutional violations, Chicago / the detectives argue that per Wallace the Section 1983 claim is not deferred under Heck. Chicago further argues that the court should not take a categorical approach to these issues. Specifically, a claim for the violation of the right against self-incrimination does not, as a categorical matter, necessarily imply the invalidity of the conviction because Fifth Amendment violations are subject to harmless error analysis.
Filed February 4, 2019 (Supreme Court Petition Stage)
Palardy v. Township of Milburn
No. 18-830
Pro Bono Author: John Baker
Status: The petition for certiorari was denied on May 13, 2019.
Palardy, a retired police officer, alleges the Township retaliated against him in violation of the First Amendment by preventing him from becoming police chief based on Palardy’s union membership. Palardy was union president and in this capacity, he participated in four to five contract negotiations between the union and the Township. Gordon, the Township’s business administrator, oversaw personnel matters and Palardy alleges that Gordon made a number of statements reflecting his negative views of Palardy based on his union membership. For example, Palardy claims Gordon said Palardy would never become police chief “because of his union affiliation and being a thorn in my side for all these years.”
The Township was without a chief or a team of captains for some time and Palardy was the department’s most senior lieutenant. Prior practice would have been to select a chief from existing captains. As a lieutenant, Palardy was not eligible to become chief, but he argued that he should have been promoted to captain and then he could have been promoted to chief shortly thereafter. Gordon indicated none of the existing lieutenants had enough experience to become chief. During their search for a chief from the outside, a captain who had been on inactive duty for health reasons returned and was promoted to chief. At this time, Palardy was given the title of “acting captain,” but this did not have any pay increase. Palardy then stepped down as union President to help him advance in the police ranks. Palardy was later promoted to captain (not just acting captain). Although the Chief was scheduled to retire in April 2015, in 2013, Palardy accepted a part-time position with the Township’s Board of Education as a Security Coordinator because he believed he would never become chief.
He retired from the police force in February 2014 and then filed suit against the Township, claiming that its failure to promote him to chief was a violation of his First Amendment rights. His claim is one entirely based on association, not speech and is based on the fact that he was a “union man,” including serving as the union’s president.
Under Connick v. Myers, the Supreme Court held that public employees only receive First Amendment protection from retaliation in the workplace when they speak out on a matter of public concern and their interest in speaking outweighs the government’s interest in promoting workplace efficacy and avoiding disruption. Circuits are split as to whether Connick’s public-concern requirements apply to associational claims.
The district court granted summary judgment in favor of the Township, finding Palardy’s union activity on its own was not constitutionally protected. Third Circuit reversed, concluding that union membership is worthy of constitutional protection under the First Amendment. The Third Circuit joined the minority side of the split (along with the Fifth Circuit), concluding that in the context of a public employee’s union affiliation, there is no way to separate the “wheat from the chaff” in order to determine “which union association is worthy of First Amendment protection and which is not”, and therefore, mere membership in a public union is always a matter of public concern under Connick.
Other circuits, including the Second, Fourth, Sixth, and Seventh, apply Connick’s public concern test to determine if the association is constitutionally protected. The Second Circuit for example held that “it would be anomalous to exempt [the right of association] from Connick’s public concern requirement and thereby accord it an elevated status among First Amendment freedoms.”
The issue in the petition for certiorari was whether Connick’s “public concern” inquiry applies to First Amendment associational claims by public employees or whether mere membership in a union is always a matter of public concern.
Filed December 20, 2018 (Supreme Court Petition Stage)
City of Newport Beach v. Vos
No. 18-672
Pro Bono Author: Lee Roistacher
Newport Beach City Police responded to a call that Vos was behaving erratically with a pair of scissors at a 7-Eleven, including cutting an employee’s hand who tried to disarm him. While he was alone inside of the store, the eight officers at the scene discussed non-lethal options for resolving the situation for the next fifteen to twenty minutes. During this time a K-9 unit arrived, and one of the officers armed himself with a 40-millimeter less-lethal device. Also during this time, the officers also became aware that Vos was simulating having a gun, appeared angry and agitated, yelled “shoot me”, and appeared mentally unstable or under the influence of drugs.
Before the officers could cement their plan to apprehend Vos using less-lethal force, Vos charged the doorway with a metal object raised over his head. The officers twice yelled for Vos to drop the weapon over the bull horn, but he did not drop it and continued to charge the officers. One officer fired non-lethal rounds, and two officers fired lethal gun shots, causing his death.
According to an expert report submitted by Defendants, based on his rate of speed Vos would have traveled the 41.1 feet from the back of the store to the police officers’ positions in 3.4 seconds. The video shows that the officers had approximately two seconds to decide to shoot Vos after having warned him to drop his weapon.
Vos’s parents brought suit against the City and three officers on twelve causes of action, including excessive force in violation of the Fourth Amendment and violation Title II of the Americans with Disabilities Act based on Vos’s schizophrenia. The district court granted summary judgment on all claims in favor of the City.
In a 2-1 decision, the Ninth Circuit found that summary judgment on the Fourth Amendment claim was not proper because the Graham factors did not weigh in favor of deadly force. The court also found that other factors to be considered beyond Graham (tactics prior to confrontation, diminished interest in using deadly force due to suspect’s mental illness, whether proper warnings were given) also weighed against deadly force. However, the court went on to find that the officers were entitled to qualified immunity because it was not “beyond debate” that the officers had acted unreasonably. Finally, on the ADA claim, the Ninth Circuit found that summary judgment was improper because the facts arguably show the officers could have provided further accommodation of Vos’s disability, including de-escalation, communication, or specialized help. The court acknowledged that the officers did nothing to provoke Vos’s behavior, but found that an officer’s duty to accommodate is not limited to situations in which the officer provokes the individual’s behavior.
The issues in this case are:
1. Whether Title II of the ADA applies to police use of force against an assailant.
2. Whether the suspect’s mental illness is a factor in determining whether use of deadly force against an attacking suspect is reasonable under the Fourth Amendment.
3. Whether tactical decisions before use of force may render an otherwise reasonable use of force against an attacking suspect unreasonable.
Filed December 20, 2018 (Supreme Court Petition Stage)
Filed November 22, 2017 (Ninth Circuit)
Silva Jr., v. City & County of Honolulu et. al.
No. 17-16406
Pro Bono Author Ninth Circuit: Adam Rosenberg & Dan Lloyd
Pro Bono Author Supreme Court Petition Stage: Mary Beth Naumann
Held: The Ninth Circuit affirmed the denial of qualified immunity.
Around 8 pm police responded to a call about an individual dressed all in black walking down the middle of a busy 6 lane roadway. When they ordered him to move to the sidewalk, he ran away, but continued to remain in the middle of the street, which still had a good amount of traffic on it (though exactly how busy it was is disputed, though likely not material). After trying unsuccessfully to catch him, the officers warned they would use pepper spray. When he did not comply, they utilized pepper spray, which had no effect on him and he continued to run away while remaining in the middle of the busy street. They then warned him they would tase him. One officer tried to tase him, but the individual did not fall to the ground at first. After the third time that the officer deployed his Taser, the suspect fell to the ground.
Eventually the officers subdued him, got his hands behind his back and cuffed him though he continued to resist the entire time. They brought him to the side walk where he lost consciousness. They immediately provided medical care and called paramedics. He was brought to a hospital, but died 12 hours later.
The parties dispute whether the Taser made contact with the deceased. The officers claim that the Taser / barbs never actually made contact with him and that he tripped (which is why he ended up on the ground). The medical examiner also testified that none of the barbs actually made contact with him. The suspect’s estate disputes that fact as does their expert.
The medical examiner indicated that the interaction with the police was a “minimal” cause of death, whereas the illegal drugs (methamphetamine) was a moderate to marked (most severe) cause of death and an enlarged heart was slight to moderate cause of death.
The deceased’s estate brought a Section 1983 claim against the officers for excessive force, claiming that the multiple uses of the pepper spray and the Taser were unreasonable as a matter of law and that they should not be entitled to qualified immunity.
The district court found that disputed material facts about whether the Taser shocked the deceased (and therefore the amount of force used/nature of the intrusion) precluded the officer’s motion for summary judgment and for qualified immunity. The court similarly found that because whether the law is clearly established for the purposes of qualified immunity is a fact specific inquiry, it could not grant the officers qualified immunity with regard to either their use of the pepper spray or Taser when there were disputed facts.
The city argued that even assuming the evidence in light most favorable to Plaintiff (that he was Tased and fell to the ground), the Officers acted reasonably. Further, given the fact that decedent was standing in the middle of a busy roadway and evading arrest, the Officers were entitled to qualified immunity because the law was not clearly established at the time of the incident as the other Taser cases are significantly different from the facts in this case. The Ninth Circuit upheld the district court’s denial of qualified immunity.
Filed October 22, 2018 (Supreme Court Petition Stage)
Filed October 3, 2017 (Eleventh Circuit)
Pensacola v. Kondrat’yev
No. 18-351
Pro Bono Author: Paul Zidlicky & Michael Buschbacher
In the early 1940’s a cross was erected in a city park. As time passed, the cross remained and amphitheater was constructed around it and some churches began using the area for Easter Sunrise services. The city maintains the cross/property at about $233 per year. The city issued permits for church’s use and one of the Plaintiffs in this case also received a permit for one Easter Sunrise service to host a satanic ritual requiring the long-time church user of the property to move. Four individuals brought suit against the city, claiming the cross offended them and violates the Establishment Clause. The district court found that under the Lemon test, the city had violated the Establishment Clause.
One of the significant issues in the case involves standing: do the plaintiffs who were formerly residents, but who are no longer residents have standing? The case also raises the standing question of the “offended observer” in the Establishment Clause context. Another issue raised by the lower court’s decision is the historical underpinnings of the Establishment Clause and whether it was intended to circumscribe state or local governments or instead, to act as a limitation on the federal government to prevent it from creating a governmentally backed religion. The petition also raises the validity of the Lemmon test for Establishment Clause jurisprudence.
Filed October 22, 2018 (Supreme Court Petition Stage)
Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation No. 18-364
Pro Bono Author: John Murphy
In 2002, the voters of Morris County authorized the County Freeholder Board to permit historic preservation funding under a trust funded by a county property tax. Four kinds of entities could apply for grants: municipal governments within Morris County; Morris County government; charitable conservancies whose purpose includes historic preservation; and religious institutions. At the time of the grants in question, the trust considered applications to stabilize, repair, rehabilitate, renovate, restore, improve, protect, or preserve historic properties. A review board evaluated applications and made recommendations to the Freeholder Board. Among other things, the review board considered the significance of the property, its physical condition and proposed use, the applicant’s ability to match the funds requested, and the project’s relationship to heritage education and tourism.
The Freeholder Board approved final awards. For religious institutions, grants could fund assessment reports, preparation of construction documents, construction projects for a building’s exterior as well as its mechanical, electrical, and plumbing systems, and other items.
Certain conditions applied to all grant recipients, including churches. Successful applicants that received construction grants of more than $50,000 cumulatively, over any number of funding cycles, had to execute a thirty-year easement agreement with the County. The “easement is a deed restriction that is used to assure long-term preservation of a historic property through proper maintenance and by limiting changes in use or appearance and preventing demolition of the property.” Grantees were also required to provide public access to properties that received grant funds.
From 2012 to 2015, the Freeholder Board approved a total of over 11 million dollars in grants from the trust fund for historic preservation, of which $4.6 million, or 42%, was awarded to twelve churches. The grants funded the preparation of construction documents and plans, and the restoration of church buildings, towers, parish houses, windows, and other items. All twelve churches “have active congregations” and all “have conducted regular worship services in one or more of the structures” for which grant funds have been or will be used.
Some of the grant applications that the churches submitted, indicated that funds were needed to allow the church to offer religious services. However, whenever such a statement was made in the application, the applicant also indicated that the funds were needed to allow the community and others outside the organization to use it as well. At least one of the churches also used the grant funds to replace a broken stained-glass window, which had religious imagery on it.
The Freedom from Religion Foundation (FFRF) and a member of the group who is a Morris County resident and taxpayer, filed a complaint in New Jersey state court, asserting that the grants violated the Religious Aid Clause of the New Jersey Constitution. The defendants argued that if the Religious Aid Clause was violated, the Clause conflicts with the Free Exercise and Equal Protection Clauses of the U.S. Constitution.
By way of background, in Trinity Lutheran Church of Columbia Inc. v. Comer, the Court held that the Missouri Department of Natural Resources’ express policy of denying grants for its playground resurfacing program to any applicant owned or controlled by a church, sect or other religious entity violated the rights of Trinity Lutheran Church under the free exercise clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status. Trinity Lutheran distinguished its holding from a prior Supreme Court holding, Locke v. Davey. Locke involved the State of Washington’s scholarship program, which allowed high achieving students to use scholarships for both religious and non-religious schools, but they could not use the funds to pursue a devotional theology degree. In Locke, the Supreme Court concluded the Washington state program did not violate the Free Exercise Clause because the student was denied a scholarship because of what he proposed to do with it – i.e., study theology and states have a “historic and substantial interest” in excluding religious activity from public funding.
The New Jersey Supreme Court concluded the County violated the state constitution’s Religious Aid Clause in light of the plain language of that clause, which prohibits using public money to build or repair churches. The court then analyzed whether the Religious Aid Clause is at odds with the U.S. Constitution, ultimately concluding that the clause does not violate the U.S. Constitution’s Free Exercise Clause. After analyzing both Trinity Lutheran and Locke, the New Jersey Supreme Court determined that this case was more akin to Locke, noting that the churches under its analysis are not being denied public funds because they are religious institutions, but rather, because of what they plan to do, namely, use public funds to repair church buildings so that religious worship services can be held there. The court noted that unlike Trinity Lutheran, this case did not involve the expenditure of taxpayer money for non-religious uses, such as playground resurfacing. The court also rejected the defendants’ arguments that RLUIPA and the Fourteenth Amendment would be violated if the grants excluded churches from the potential recipients.
The issue in this case is whether excluding churches from the county grant program that use the public money for historic preservation purposes in addition to improving active worship space violates the Free Exercise Clause of the U.S. Constitution?
Filed September 28, 2018 (Supreme Court Petition Stage)
County of Maui v. Hawaii Wildlife Fund et al.
No. 18-260
Pro Bono Author: Andre Monette
The issue in this case is whether, under the “conduit theory” of liability, the Clean Water Act prohibits the release of pollutants into ground water that eventually migrates to navigable waters.
The Clean Water Act (CWA) does not apply to discharges of groundwater. This case, however, appears to expand the coverage of the Act significantly by using this novel “conduit” theory of liability. Under the conduit theory, according to the district court, any release of pollutants into groundwater that migrates to hydrologically connected navigable waters violates the CWA. This theory has far reaching implications, potentially requiring a National Pollution Discharge Elimination System (“NPDES”) permit for any source – including underground storage tanks, surface impoundments, landfills, and pipelines to name a few – that may release pollutants to groundwater that is hydrologically connected to navigable waters.
In this case, the County of Maui operates a wastewater treatment facility that filters and disinfects the sewage it receives then releases the wastewater into four onsite injection wells. The injection wells are long pipes into which the wastewater is pumped. The wastewater then travels approximately 200 feet underground into a shallow groundwater aquifer beneath the facility. It is undisputed that wastewater from these wells eventually makes its way into the Pacific Ocean and that the County was aware of that fact for some time. Specifically, a 2013 tracer study, conducted on behalf of the EPA, the Army Corps of Engineers and the Hawaii Department of Health, confirmed that treated wastewater from the County’s UIC wells reached the ocean roughly half a mile south of the treatment plant. On average, it took approximately 10 months for groundwater containing County wastewater to enter the ocean along approximately 2 miles of coastline.
The Clean Water Act prohibits the “discharge of any pollutant” unless certain provisions of the Clean Water Act are complied with. See 33 U.S.C. § 1311(a). The Clean Water Act defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The Clean Water Act defines “point source” as any “discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.” 33 U.S.C. § 1362(14). The Clean Water Act allows discharges of pollutants when an NPDES permit is obtained and complied with. See 33 U.S.C. § 1342.
Citizen groups sued, claiming the County needed a NPDES permit for its injection of treated wastewater into the underground injection control wells. The County did eventually apply for a NPDES permit and sought a stay of the proceedings as a result, but the district court denied that motion for a stay.
On the plaintiffs’ motion for summary judgment, the district court held that the County violated the Clean Water Act based on a novel “conduit” theory of liability – i.e., the treated wastewater reached navigable waters without a NPDES permit. Under the conduit theory the court held that the unconfined groundwater acted as a “conduit,” conveying pollutants from the point source – the permitted UIC wells – to the ocean. The district court explained:
This does not mean that groundwater is always and necessarily itself part of the navigable waters of the United States. See 66 FR 2960-01 at 3017 (“EPA does not argue that the CWA directly regulates ground water quality.”); Definition of “Waters of the United States” Under the Clean Water Act, 79 FR 22188-01, 22218 (Apr. 21, 2014) (“The agencies have never interpreted ‘waters of the United States’ to include groundwater.”). An unpermitted discharge into the groundwater, without more, does not constitute a violation of the Clean Water Act. It is the migration of the pollutant into navigable-in-fact water that brings groundwater under the Clean Water Act.
Filed August 17, 2018 (Supreme Court Petition Stage)
Raines v. Burningham
No. 18-110
Pro Bono Author: Brian Carter
In response to an emergency call from a male reporting he had been stabbed inside his apartment and was hiding in the closet, police officers located John Raines IV (“Raines”) standing outside on the sidewalk of the apartment building holding a knife. The encounter with Raines lasted less than two minutes. A number of officers surrounded him and repeatedly ordered him to drop the knife with their guns drawn. Instead of heeding their orders, he kept the knife raised and shifted his weight from foot to foot.
When officer Hanson arrived, she also instructed him to drop his knife. When he didn’t, she holstered her gun and advanced on him with her Taser. The Taser video confirms that as Hanson approaches Raines, three other officers fired on Raines, resulting in his paralysis.
The officers moved for summary judgment based on qualified immunity, arguing that their use of force was legally justified based on aggressive movements Raines made toward officer Hanson while he was still holding a knife.
The Plaintiff argues Raines was shot before making his movement towards Officer Hanson, however, the videos of the incident as well as all the witnesses (including non-police witnesses) contradicts that notion. Nonetheless, the district court concluded that the evidence, including two videos, presented a genuine dispute of fact as to whether the officers had probable cause to believe Raines posted a significant threat of death / serious injury.
On appeal to the Eighth Circuit, the court concluded it lacked jurisdiction to hear the denial of qualified immunity based on the district court’s conclusion that there were genuine factual disputes.
The issue in this case is whether appellate courts have interlocutory appeal jurisdiction over a denial of qualified immunity where the appellants challenge the inferences made from fact disputes identified in the record.
Filed August 8, 2018 (Supreme Court Petition Stage)
McKinney v. Middletown
No. 18-46
Pro Bono Author: Elliot Spector
Status: Certiorari was denied.
The plaintiff was arrested for robbery and was placed into a Middletown Police Department cell on the day of his arrest. Around 4 am, officers observed that the plaintiff had obstructed the camera in his cell. When the officers went to his cell to tell him to take it down, he refused twice, was hostile and yelled and threatened one of the officers by saying “If I’m going to jail, it won’t be for something minor. Come in here and I will go to jail for f*cking you cops up.”
The officer informed him that he was going to move him to another cell for “mentally disturbed persons” however, the plaintiff indicated that he would not go to that cell. One of the officers left to go get additional help and came back with two more officers, one of whom had his K-9 with him. The officers instructed the plaintiff on numerous occasions to move back from the door, so they could enter, and the plaintiff refused. The officers cracked the door and the plaintiff “clenched his fists, looked at Officer Sebold in the eye with clenched teeth and said, ‘come on.’” The plaintiff then took the foam mattress pad and used it as a barricade between himself and the officers and pressed it against the cell door.
Officer Sebold expanded his baton and attempted to push the plaintiff back, however, the plaintiff grabbed his baton and tried to wrestle it form him. At this point, the K-9 handler allowed the K-9 to enter the cell and warned the plaintiff that if he did not stop resisting, he would be bit. The plaintiff then charged the officers and the officers deployed the K-9, who bit the plaintiff and brought him to the ground. However, the plaintiff continued resisting. The officers ordered him continually to stop resisting, struck him a number of times with the baton and eventually deployed a taser on him once when he continued to resist after baton strikes. At this point, he finally complied and released his hands to be cuffed.
The plaintiff does not dispute this version of the facts and only states that he does not have much memory of the event and was in a state of mental and emotional distress and that he is bipolar. The plaintiff argues that the officers should have used different tactics given his mental state.
The district court concluded that the officers’ use of force was reasonable under the totality of the circumstances and therefore did not violate the Fourth Amendment. Each level of force, the district court reasoned, was in response to the plaintiff’s increasingly combative and resistant behaviors. The K-9 was only used, for example, when the plaintiff attempted to wrestle the baton away from one of the officers. The taser was then used as a “last resort” according to the district court when the plaintiff continued to refuse to submit and be handcuffed. The district court rejected the plaintiff’s argument that his mental illness created a dispute of material fact with respect to the use of force based on the officer’s knowledge at the time and the circumstances they confronted.
In an extremely brief order, the Second Circuit reversed. The court concluded that “[b]ased on the unique circumstances of this case, we think a reasonable jury could conclude that the combination of baton strikes, the use of a taser, and especially, the use of a police canine was excessive in the context of a confined detention cell, notwithstanding McKinney’s resistance.” The court remanded and on the qualified immunity question specifically noted that it was providing no view as to whether they would ultimately be entitled to qualified immunity.
The issues in this case include whether the Second Circuit improperly denied qualified immunity to the officers given that the defense was raised, briefed and argued before the Court and where, as recognized by the panel, the facts and circumstances surrounding the plaintiff’s admittedly active resistance and corresponding use of force were largely undisputed.
Filed July 28, 2018 (Supreme Court Petition Stage)
American Humanist Association v. Maryland-National Capital Park and Planning Commission
No. 18-18
Pro Bono Author: Paul Zidlick & Michael Buschbacher
In 1925, the American Legion and a group of bereaved mothers erected a memorial to honor the 49 residents of Prince George’s County, Maryland, who perished in World War I. To evoke the grave markers on the battlefields in Europe, the memorial bears the shape of a cross. The cross is 40 feet tall and a large plaque affixed to the memorial dedicates it to and lists the names of the 49 county residents who fell in World War I. The sides of the memorial are inscribed with the words “valor,” “endurance,” “courage,” and “devotion.” The memorial is situated in Veterans Memorial Park, which also contains monuments to the War of 1812, World War II, the attack on Pearl Harbor, the Korean and Vietnam wars, and the events of September 11, 2001. The WWI memorial / cross is by far the largest memorial in the park.
Until the present suit, no person challenged the legality of the monument, which from its beginning has been consistently used by the community and the local American Legion as the site of patriotic events to honor veterans. The community has never used the memorial for a religious ceremony, and the only mention of a religious event in connection with the memorial occurred 87 years ago. However, there are some invocations that occur during war memorial events, which have been predominantly Christian. These invocations are offered by private citizens during Veteran’s Day or Memorial Day events commemorating veterans.
In 1961, the Maryland-National Capital Park and Planning Commission acquired the memorial and the roadway median on which it sits due to traffic safety concerns arising from the placement of the Cross in the middle of a busy intersection. From that date until present, the Commission has expended $117,000 in costs associated with maintenance and repair of the memorial.
In 2014, the American Humanist Association and three individuals filed suit against the Maryland-National Capital Park and Planning Commission. Respondents contended that, because of its cross shape, the memorial constitutes an unconstitutional endorsement of Christianity. The American Legion and its local affiliates were subsequently permitted to intervene as defendants. The District Court granted summary judgment to the defendants, explaining that it is “uncontroverted” that the maintenance and display of the memorial is not “driven by a religious purpose whatsoever,” and that the memorial’s “history and context” would lead any reasonable observer to conclude that the monument does not “hav[e] the effect of impermissibly endorsing religion,” but instead serves exclusively as a war memorial.
A divided panel of the Fourth Circuit reversed, finding that under Lemon v. Kurtzman, the cross violated the Establishment Clause as its primary / principal effect was endorsing Christianity and because it represented excessive entanglement between the government and religion. The panel acknowledged that the Commission had “articulated legitimate secular purposes for displaying and maintaining” the monument. But the court reasoned that “[t]he Latin cross is the ‘preeminent symbol of Christianity,’” and that the cross lacks any meaningful “connection” to “our Nation’s history and government” and is so inherently “sectarian” that it “overwhelm[s]” the monument’s numerous “secular elements.” Further, the panel reasoned that, by making even “de minimis” expenditures to maintain the memorials, the Commission “entangl[ed]” itself in religion and led “any reasonable observer” to believe that “the Commission either places Christianity above other faiths” or “views being American and Christian as one in the same.”
Judge Gregory dissented and explained that in light of its history and context, it is plain that the monument is “a war memorial built to celebrate the forty-nine Prince George’s County residents who gave their lives in battle.” He further noted that the majority’s decision to the contrary “would lead to per se findings that all large crosses are unconstitutional despite any amount of secular history and context.” The Fourth Circuit voted 8-6 to deny rehearing en banc. Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer each filed dissents objecting to the majority’s legal errors and describing its dramatic implications for other monuments and memorials throughout the country.
The issue is whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.
Filed June 17, 2018 (Supreme Court Petition Stage)
Franklin v. Peterson
No. 17-1572
Pro Bono Author: Timothy Coates
Officers Durand and Peterson cornered robbery suspect Walter Franklin, who was hiding in a basement while fleeing from the police. After Franklin refused to surrender multiple times when police asked him to show his hands, an officer moved into the closet to pull Franklin out and a struggle ensued. According to the officers, Franklin grabbed for an officer’s sub-machine gun during the ensuing struggle and pulled the trigger twice, hitting both officers. According to Officer Peterson, Franklin had gained sufficient control over the gun to be perceived as a threat. Franklin was shot five times and pronounced dead at the scene.
Franklin’s estate (“the Estate”) brought this action under 42 U.S.C. 1983 against the two officers, the City of Minneapolis and the Chief of Police claiming excessive force, wrongful death, and negligence. In its analysis, the district court found that despite credible and undisputed evidence given by the officers that deadly force was appropriate under the circumstances, the Estate had nonetheless raised a factual dispute based on two pieces of circumstantial evidence. District court denied qualified immunity for the officers, relying on the following two pieces of circumstantial evidence:
(1) Time Gap- The Estate highlighted a seventy-second gap of time between when the first shots were fired and the time the officers fired on Franklin, arguing that this contradicted the officer’s account and there remained a question as to whether Franklin posed a threat when he was shot and killed. This was based on video footage interpreted by an expert witness and filmed outside the house where Franklin was shot.
(2) Absence of blood on AP5- the Estate also argued that an absence of blood on the gun provided circumstantial evidence that Franklin was not in possession of the gun when the officers used deadly force on him.
On appeal, the officers challenged the denial of qualified immunity. Specifically, they questioned the district court’s reliance on inferences based on the above circumstantial evidence, asserting the evidence was either not material or was blatantly contradicted by the record.
The Eighth Circuit dismissed the appeal based on lack of jurisdiction, stating that “there [were] no facts the district court necessarily assumed that would allow [the Eighth Circuit] to conduct a legal analysis.” In arriving at this conclusion, the Eighth Circuit highlighted language used by the district court in its opinion that appeared to give neutral treatment to each party rather than specifically adopting testimony from either side (e.g. “Plaintiff contends. . . “and “Officers stated. . .”).
The court explained that factual arguments made by the officers on appeal regarding materiality and sufficiency should be made to a jury because the district court did not explicitly hold that the facts it relayed in its recitation were undisputed. Instead, the district court simply held the Estate had raised a genuine factual dispute.
The issue in this case is whether appellate courts have interlocutory appeal jurisdiction over a denial of qualified immunity where the appellants challenge the inferences made from fact disputes identified in the record.
Filed April 26, 2018 (Supreme Court Petition Stage)
Filed November 13, 2017 (Ninth Circuit Petition for Rehearing En Banc)
No. 16-1517
Estate of Lopez v. Gelhaus & County of Sonoma
Pro Bono Author: Jennifer Henning / David Nefouse
Sonoma County Sheriff’s Deputies Gelhaus and Schemmel were patrolling an area of the county known for gang activity in the afternoon. Gelhaus noticed an individual walking on the sidewalk about 100 feet away from them in the opposite direction carrying what he believed to be an AK-47 with the muzzle pointed toward the ground. From that distance, they could not tell his age though they believed he was an older teen. Schemmel drove toward Andy and flipped on his emergency lights and “chirped” the siren and parked about 40 feet from the teen. Gelhaus got out and drew his pistol and positioned himself in the V of his open door and knelt on the ground for cover. He yelled loudly at the teen, who had continued walking and was now about 60 feet away, “Drop the gun!” The parties do not dispute that the teen did not drop the gun, and instead started to rotate his body toward the officers while continuing to hold the gun.
Though the parties dispute exactly what happened next, both officers indicated that the weapon was starting to come up as the teen turned toward the officers. Gelhaus fired a number of shots and killed the teen. The plaintiffs’ expert disputes that the gun was starting to come up. The total amount of time elapsed from the police car’s “chirp” until the shots were fired was twenty seconds.
The district court denied qualified immunity, concluding that a jury could have found Gelhaus acted unreasonably when viewing the evidence in the light most favorable to the teen. Specifically, the district court concluded that the riffle barrel was beginning to rise, but that at the time Gelhaus shot the teen, the riffle barrel was not at a level that compelled the conclusion that the officers were threatened with imminent harm.
Noting that it grants summary judgment “sparingly” in excessive force cases, particularly where the “only witness other than the officers was killed during the encounter,” the Ninth Circuit upheld the denial of qualified immunity. In so holding, the Ninth Circuit relied on a number of immaterial facts in concluding that the teen was not an immediate threat to the officers’ safety and therefore under the Graham factors, qualified immunity was inappropriate. These factual disputes included: 1) whether the teen looked over his shoulder when the officers “chirped” the police siren; 2) how many times Gelhaus shouted to drop the gun (the court accepted there was at least 1 shout); 3) which hand the teen was holding the gun in; and 4) the movement of the teen’s gun. On this last point, the Ninth Circuit noted that it must accept the facts the district court assumed in denying summary judgment, and here the district court made an express factual finding that “the rifle barrel was beginning to rise; and given that it started in a position where it was pointed down at the ground, it could have been raised to a slightly-higher level without posing any threat to the officers.”
The dissent sums up the problem with the majority’s opinion: “The majority opinion exhaustively recounts the facts of the case, but for me, they are largely irrelevant. One critical fact—the upward motion of the fake gun—resolves the qualified immunity issue in Deputy Gelhaus’s favor. …I agree with the majority, therefore, that the precise angle at which Andy pointed the gun is a disputed fact, but as I explain below, that is not material to the qualified immunity analysis.”
The dissent goes on to explain that the majority incorrectly characterized the situation as the teen merely standing on the sidewalk holding a gun that was pointed down on the ground, which is qualitatively different than what the undisputed facts actually showed – i.e., the gun was rising. Finally, the dissent criticizes the majority for creating a “novel rule—that we must accept as true all facts not conclusively disproved by evidence in the record even if those facts have no evidentiary support of their own—”and notes that such a rule “is plainly wrong.”
The Ninth Circuit denied the County’s petition for rehearing en banc and thereafter, the County petitioned the Supreme Court for certiorari.
The issues in this case are: 1) whether the officers violated the deceased’s Fourth Amendment rights by employing deadly force under the circumstances where the teen was turning toward them holding what they reasonably believed was an assault rifle as the gun barrel was starting to rise; and 2) Even if they did, whether the law was clearly established at the time of the events.
Filed March 7, 2018 (Supreme Court Petition Stage)
Metropolitan Government of Nashville and Davidson v. McMahon
No. 17-1124
Pro Bono Author: Amanda Kellar
Status: The Supreme Court denied certiorari.
CLICK HERE to view the Amicus Brief.
Respondent was a public health nurse working in Nashville’s health department. She suffered from depression and anxiety (which she claimed were a result of her work environment / her supervisor). She took a medical leave and exhausted her FMLA leave while out on leave. She was then transferred to another clinic away from the “toxic environment,” and worked there for four months successfully. Unfortunately, there was not an open position at that other clinic and the nurse with whom she had swapped locations had agreed to move only for a short duration. Respondent was then transferred back to the original clinic, but under a different supervisor.
However, even though she was working for a different supervisor, she ended up going out on another leave after about a month and asked for leave of indefinite duration. Her physician’s letter stated that it was “not possible to predict” when she could return. Nashville wrote her a letter explaining that there were unpaid leave days available under the rules but that her current request must be denied because it was for “indefinite duration.” Respondent never asked for any of the allowable unpaid leave days and never provided a return- to-work date. Instead, she resigned, stating that she “should not be working for [Nashville] at this time.” Had she not resigned, she would have had a disciplinary hearing per union rules, where the topic of her requested leave would have been discussed.
The case went to a jury, which returned a verdict in favor of the Respondent. On appeal, the Sixth Circuit rejected Nashville’s argument that the Respondent was not a qualified individual under the ADA due to her request for an indefinite leave. The Sixth Circuit concluded that she was qualified to perform her job under the ADA based on her having successfully done so for four months at the alternate location after her prior medical leave. The court noted that there was “no basis to conclude that another period of leave would not restore her ability to return to work.”
The Sixth Circuit similarly rejected Nashville’s argument that a request for indefinite leave is not a reasonable accommodation, reasoning that Nashville should have proposed some form of definite leave in response to her request for indefinite leave, given that she had unpaid leave available to her under Nashville’s own policies.
The issues in this case is whether a disabled employee who only requests indefinite leave is not qualified under the ADA, as a matter of law, as the First, Fifth, Eighth, Tenth, and Eleventh Circuits have concluded – or whether, in such situations, an employee’s qualification under the ADA is essentially a question of fact, as the Sixth Circuit has concluded.
Filed January 29, 2018 (Supreme Court Petition Stage)
Green Valley Special Utility District v. City of Cibolo
No. 17-938
Pro Bono Author: Heather Lockhart
CLICK HERE to view the Amicus Brief.
The Public Utility Commission of Texas (“PUC”) issues certificates of convenience and necessity (“CCNs”), which give holders the exclusive right to provide water or sewer service within particular service areas. Green Valley is a special utility district that holds two CCNs: one for water service and one for sewer service. In 2003, Green Valley obtained a $584,000 loan from the United States to fund its water service. That loan, which remains outstanding, is secured by Green Valley’s water utility revenues.
In March 2016, the City of Cibolo applied for a CCN to provide sewer service to all of Cibolo,
including portions within Green Valley’s service area. Cibolo did not apply for a CCN for water service.
The U.S. Department of Agriculture has a water and sewer utility loan program. See 7 U.S.C. § 1926. Green Valley claims that Cibolo’s application violates § 1926(b), which prohibits municipalities from encroaching on services provided by utilities with outstanding loans. Specifically, the statute states:
The service provided or made available through any such association shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan; nor shall the happening of any such event be the basis of requiring such association to secure any franchise, license, or permit as a condition to continuing to serve the area served by the association at the time of the occurrence of such event.
In May 2016, Green Valley sued for injunctive and declaratory relief, alleging that § 1926(b) protects both its sewer and water service from municipal encroachment. The city moved to dismiss, claiming that § 1926(b)’s protection extends only to services secured by an association’s federal loan—in this case, only Green Valley’s water service. The district court dismissed the complaint.
The Fifth Circuit reversed, concluding that under the plain meaning of the statute, the term “service” in §1926 extends to any service made available by the federally indebted utility. While acknowledging a circuit split, the Fifth Circuit reasoned that its interpretation was consistent not just with the plain meaning, but also with the purposes of the statute, which are: “(1) to encourage rural water development by expanding the number of potential users of such systems, thereby decreasing the per-user cost, and (2) to safeguard the viability and financial security of such associations . . . by protecting them from the expansion of nearby cities and towns.”
The issue in this case is whether the language “[t]he service provided or made available” under § 1926(b) refers solely to the service for which a qualifying federal loan was obtained and which provides the collateral for the loan, as the City argues, or to all services that a rural district provides, as the District argues.
Filed January 24, 2018 (Supreme Court Petition Stage)
Dulles Duty Free, LLC v. County of Loudoun
No. 17-904
Pro Bono Author: Sharon Pandak & Michael Connolly
Status: The Supreme Court denied certiorari
CLICK HERE to view the Amicus Brief.
This case involves a local government’s ability to impose a tax on a business that indirectly and/or marginally impacts imports and exports. Loudoun County requires every person “engag[ed] in a business” in Loudoun County to obtain a business license (the “BL”). Virginia law permits local governments to impose a “tax on the gross receipts or the Virginia taxable income of the business.” Virginia law also provides that “[w]henever the tax imposed by this ordinance is measured by gross receipts, the gross receipts included in the taxable measure shall be only those gross receipts attributed to the exercise of a privilege subject to licensure.” The tax does not target imports or exports; it applies across the board to all sales.
Loudoun County has chosen to collect the tax based on the measure of gross receipts and defines “gross receipts” as “the whole, entire, total receipts attributable to the licensed privilege, without deduction.” The tax is calculated based on the prior year’s gross receipts.
Dulles Duty Free has obtained a business license to operate in Loudoun County. Duty Free uses County roads, and benefits from the protection of County fire and rescue, law enforcement, the court system, and other County services. Duty Free does not challenge the application of the BL tax to domestic sales, but argues that Loudoun County cannot impose the BL tax on sales to international travelers (which represent 90% of its sales) because doing so violates the Import-Export Clause of the Constitution.
The Import-Export Clause provides, in relevant part, that “[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws.” U.S. Const. art. I, § 10, cl. 2.
The Virginia Supreme Court held that the County’s imposition of the BL tax violates the Import-Export Clause under Richfield Oil Corp. v. State Bd. of Equalization, 329 U.S. 69 (1946). Richfield held that once goods are in transit for export they may not be taxed under the Import-Export Clause. The court concluded that the similarities between Loudoun’s BL tax and the taxes involved in Richfield Oil were “striking” and the BL tax was therefore unconstitutional.
The Virginia Supreme Court noted that subsequent Supreme Court cases have applied a different 3-part test in assessing the constitutionality of a tax under the Import-Export Clause. And while acknowledging that “courts have struggled to determine which [Supreme Court] test to apply when it comes to assessing the constitutionality of taxes that fall on the export goods in transit,” the Virginia Supreme Court nevertheless concluded that the older Supreme Court case, Richfield Oil Corp, controlled. The Virginia Supreme Court concluded its decision by indicating “[i]t may be that the Supreme Court will provide additional guidance concerning the applicability of the Import-Export Clause to nondiscriminatory taxes like the [BL] tax that would be imposed upon on export goods in transit.”
The Questions Presented are: (1) Should the validity under the Import-Export Clause of a non-discriminatory local business license tax calculated on the basis of gross receipts be evaluated using this Court’s approach in Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976), or in Richfield Oil Corp. v. State Bd. of Equalization, 329 U.S. 69 (1946)?; and (2) Does a local business license tax calculated based on a gross receipts, which does not specifically target imports or exports, violate the Import-Export Clause if some of the gross receipts include export sales?
Filed January 23, 2018 (Supreme Court Petition Stage)
Lopez v. Estate of Perry
No. 17-890
Pro Bono Author: Samuel Hall
Status: The Supreme Court denied certiorari
CLICK HERE to view the Amicus Brief.
This case involves the death of a pretrial detainee and whether Milwaukee City police officers violated his Fourth Amendment rights and / or whether they were entitled to qualified immunity for allegedly failing to provide medical care.
In this case, Perry was arrested and while he was in the holding cell at the City police station, (PPS) he had a seizure. Emergency medical technicians were summoned, and he was transported by private ambulance to the hospital, with City police officers Kroes and Jacks following behind.
At the hospital, Perry was treated by medical professionals and provided with two different anti-seizure medications. He had two more seizures in the hospital and after each seizure, the officers observed that he seemed more tired, weak, and less responsive. Perry began to mumble, cry out, and drool. The officers expressed concern to the doctors / nurses about his condition and that he did not seem to be improving, but the medical professionals at the hospital assured them that the medication was making him drowsy and that he would just need to rest for a short time at the hospital before he could leave.
At 6:45 pm Perry was discharged from the hospital and his medical records state he was “alert and appropriate upon discharge.” However, according to the officers, Perry could not walk on his own and required a wheelchair. According to the medical paperwork, this could have been a side effect of the medication. He received discharge paperwork that instructed Perry to get prompt medical attention if he experienced confusion or unusual irritability or drowsiness.”
The officers transported Perry back to PPS to finish processing his paperwork. The two officers were met by two more officers, who together had to carry Perry into PPS as he still could not walk on his own. While they waited for a cell to open up he was placed on the floor where he was moaning and defecated and urinated on himself. He also started spitting and drooling so the officers put a spit mask on him (as this was perceived as combative). At this point, Perry was yelling that he couldn’t breathe and to help him and “you’re killing me.” One of the officers responded that if you are talking, you are breathing. The supervisor, Lt. Robbins, is then heard on the surveillance video saying: “now we’re going to treat you like we used to treat prisoners…like animals.”
When they placed him in his cell, they removed his handcuffs and shackles but kept his spit mask on. Officer Diaz-Berg conducted a wellness check on him every 15 minutes and noticed he had removed his spit mask on his own and was grunting and rolling on the floor. Though not in the Seventh Circuit’s opinion, according to the undisputed facts, a PPS janitor also observed Perry and the janitor indicated that Perry was able to stand and communicate with him.
Less than two hours after being discharged from the hospital, he was then transported to the County facility (CJF) and placed back in handcuffs, shackles, and the spit mask. At this point, he was able to walk out of PPS, though still needed assistance, and appeared less weak to the officers than he did upon arriving. After he left, Officer Diaz-Berg noticed some blood on the cell floor where Perry had been (approximately nickel in size) and she informed Lt. Robbins though neither took any further action.
After City police officers transported him to the County facility, City officers had no more interaction with him. County nurses evaluated him from a distance and determined he could not be admitted to the facility without a physician checking on him (though they did not immediately perceive a medical emergency). However, while they were waiting for that to happen, Perry died in custody. (There are a number of other facts / allegations against the County officers and nurses that are not relevant for our purposes). The medical examination revealed that Perry died from a heart condition.
The district court granted summary judgment in favor of the officers, finding that it was reasonable for them to have believed that the change in his behavior was attributable to the medication he received while in the hospital and that nonetheless, they would be entitled to qualified immunity even if they had violated his Fourth Amendment rights.
The Seventh Circuit reversed on the claims against all the individual officers, including those only minimally interacted with him, finding that they violated his Fourth Amendment rights and were not entitled to qualified immunity. The Seventh Circuit concluded that the district court erred in crediting the officers’ testimony that they never perceived that Perry was in distress and that they attributed his behavior to the medication he received at the hospital. The court found that a jury could conclude that it was unreasonable for the City officers not to seek medical care on Perry’s behalf, particularly given Perry’s complaints and cries for help and after he defecated and urinated on himself. The court also noted that a jury could find that it was unreasonable to place a spit mask on Perry instead of taking his vitals when he began to spit and drool, particularly because the officers knew he had just hours before, been treated for a medical issue. Though the officers argued that Perry’s actions were consistent with an uncooperative and combative prisoner, the court concluded that it was a jury question. The court likewise found that a jury could conclude that the Lt. acted unreasonably as he had received the medical discharge paperwork, observed Perry and instead of providing medical care, told Perry that they were going to treat him like an animal.
The Seventh Circuit also held in the City officer Diaz-Berg who merely observed Perry in his cell at PPS and conducted wellness checks on him every 15 minutes because she was aware he had previously had a seizure and did not act when she observed him grunting and rolling around. Similarly, the Seventh Circuit held in two City officers who transported Perry from PPS to the County facility because a jury could have found that their failure to take him to the hospital was objectively unreasonable, even though they knew that medical staff were available at the County facility and even though he was able to walk at this point and they believed the effects of the medication were wearing off.
The issues in this case are: (1) Whether the City officers violated the inmate’s Fourth Amendment rights by failing to provide him with medical care and instead relying on the advice of medical professionals at the hospital that the medication he took would cause the symptoms he experienced; and (2) Whether the law was clearly established such that every reasonable police officer would have known that their failure to provide additional medical care under the circumstances would violate the Constitution.
Filed December 11, 2017 (Supreme Court Petition-Stage)
City of Greensboro v. BNT Ad Agency
No. 17-492
Pro Bono Author: Allegra Collins
Status: The Supreme Court denied certiorari
In 2013, the Woods, who are African American, applied for a $300,000 ten-year economic development loan for their company, BNT, as part of the City’s economic development efforts. The Woods offered to secure the loan by way of a note and deed of trust to their home. The appraised value of the home was $975,000.00.
The City Council voted seven to two in favor of adopting a Resolution, which authorized the City to enter into an agreement with BNT for the $300,000 loan, which would place the City in the second loan position on the residence. The City’s Resolution, by its terms, required that the Woods have no other liens on the property, other than their first mortgage. As it turns out, the Woods also had a home equity line of credit that they did not originally disclose to the City. The City therefore considered at another council meeting, whether they should adopt a Resolution that would place them in a third lien position. Ultimately, the City voted not to modify the Resolution to make a lien secured by the third position.
The Woods and BNT filed suit, alleging violations of 42 U.S.C. § 1981 (and other claims that were not appealed). After the district court dismissed the claims, BNT alone appealed its claim that the City discriminated against it in violation of § 1981, which protects all persons from racial discrimination in making and enforcing contracts. BNT argued that the City’s refusal to make the loan was based upon stereotypes about the risk of lending to a minority business and that, at the pleading stage, its allegations suggesting the pretextual character of the City’s explanation for the denial of the loan are sufficient to survive a motion to dismiss. BNT used a study the City commissioned to try to eradicate past discrimination as evidence of discrimination in its complaint and it also alleged that similarly situated white businesses were provided loans on more favorable terms.
The City argued that under Iqbal and Twombly, BNT cannot survive a motion to dismiss because the complaint itself reveals a lawful “obvious alternative explanation” for the conduct of which they complain – specifically that they had not revealed the home equity line of credit and the City did not wish to be a third position lien holder. The City also argues that the complaint fails to state a claim because the comparators BNT relied on are not “apples to apples” comparators and therefore should not be used in the court’s analysis.
The Fourth Circuit reversed the district court’s dismissal of the claims, concluding that the key issue in this case was whether the City would contract with BNT on the same conditions and under substantially the same circumstances as it would with a nonminority-owned business. Because BNT plausibly pled that the conditions under which the City was willing to grant it a loan were more stringent than those the City applied to similarly situated white-owned applicants, the Fourth Circuit concluded that the district court erred in dismissing BNT’s claim of discrimination at the pleading stage.
In so concluding, the Fourth Circuit partially relied on a study of racial disparities in contracting with the City that the City conducted to help eradicate discrimination. The City conducted the study pursuant to the Supreme Court’s ruling in City of Richmond v. J.A. Croson Co., which requires such a study to be conducted before a governmental entity may implement a program that benefits minority groups. The Fourth Circuit concluded that the study “necessarily informs this Court’s ‘common sense’ analysis of whether BNT’s allegations are plausible.”
The dissent points out that the comparators BNT uses are not valid as they involve grant money rather than loan money or involve other factors that were not present in this case. As to the allegation that the City accepted a third-position lien as collateral for a loan for a white-owned business, the dissenting Judge notes that the loan to the white-owned business was a part of a new incentive program offered to a local developer, rather than an economic development loan to a private business for goods and services. Thus, this loan was different in kind.
The question presented focused on the Iqbal standard. Specifically, whether it is plausible to believe that a municipal government may seek to contract with a minority-owned enterprise under some conditions, yet, on account of race, avoid contracting with a minority-owned company under other conditions when there is an obvious alternative explanation for not contracting with the minority-owned business.
Filed November 13, 2017 (Supreme Court Petition Stage)
Rowan County v. Lund
No. 17-565
Pro Bono Author: Benjamin Beaton
CLICK HERE to view the Amicus Brief.
The question in this case is whether prayer before public meetings violates the Establishment Clause when it is offered by members of the local legislative body themselves (e.g., the city councilmembers or county commissioners).
By way of background, in 2014, the Supreme Court confirmed in Town of Greece v. Galloway that the First Amendment permitted sectarian prayers, which were overwhelmingly Christian in nature, to be delivered at publicly-attended city council meetings. The Court left open the question of whether local government commissions could now appoint themselves to deliver the prayers, which are also overwhelmingly Christian in nature, before opening their public meetings.
In Rowan County, each Board meeting began in the same way: with a prayer composed and delivered by one of the commissioners. After calling the meeting to order, the chairperson asks everyone in attendance—commissioners and constituents alike—to stand up. All five Board members rise and bow their heads, along with most of the attendees. A commissioner then asks the community to join him in worship, using phrases such as “Let us pray,” “Let’s pray together,” or “Please pray with me.” The invocations end with a communal “Amen,” and the Pledge of Allegiance follows a moment later. Next, the Board typically approves the previous meeting’s minutes, schedules future items of business, and holds a public comment period before continuing on to the day’s work.
Board members rotate the prayer opportunity amongst themselves as a matter of long-standing custom. The content of the prayer is “entirely at the discretion of the commissioner,” but no one outside the Board is permitted to offer an invocation. The vast majority of the prayers were invariably and unmistakably Christian in content.
In its response to this litigation, Rowan County indicated that the Board has “no expectation . . . regarding the form or content” of the prayers, which are offered “for the edification and benefit of the commissioners and to solemnize the meeting,” The County also noted that attendees may leave the room or arrive after the invocation and that the Board “respects the right of any citizen” to remain seated or disregard the invocation.
A Fourth Circuit panel initially upheld the constitutionality of lawmaker-led prayer, but the en banc Fourth Circuit disagreed, and concluded 10-5 that Rowan County’s lawmaker-led prayer violates the Establishment Clause. The court reasoned that the “prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion. And because the commissioners were the exclusive prayer-givers, Rowan County’s invocation practice falls well outside the more inclusive, minister-oriented practice of legislative prayer described in Town of Greece.”
Having invalidated the County’s existing practice, the court avoided dictating an acceptable alternative. However, the majority did claim that its decision was fact-based and the fact that officeholders might occasionally deliver prayers did not sanctify their doing so exclusively.
The dissent saw the majority as committing a basic error in its “underlying assumption that the Establishment Clause is an anti-religion clause that exists in tension with the Free Exercise Clause.” The dissent also criticizes the majority for failing to follow Town of Greece. For the dissenters, unless the invocations in question served to proselytize or disparage, less egregious conduct warranted no further review.
Shortly after Rowan County was decided by the Fourth Circuit en bane, the en banc Sixth Circuit released a contrary opinion on the very same issue in a case titled Bormuth v. Jackson County, concluding 9-6 that lawmaker-led prayer is constitutional under the Establishment Clause, in line with Town of Greece. So, there is a very clear and present circuit split of two en banc circuits on the issue of lawmaker-led prayer.
Filed November 2, 2017 (Supreme Court Petition Stage)
South Dakota v. Wayfair
No. 17-494
Pro Bono Author: Tillman Breckenridge
Status: The Supreme Court granted certiorari.
CLICK HERE to view the Amicus Brief.
The issue in this case is whether the Supreme Court should abrogate Quill Corp. v. North Dakota’s sales-tax-only, physical-presence requirement.
After calls from Justice Kennedy to reconsider Quill’s continued application in the modern internet-era, South Dakota enacted a law to challenge Quill’s physical-presence requirement. Because the law South Dakota enacted squarely conflicted with Supreme Court precedent (which was the intention), the South Dakota Supreme Court ruled the state law was unconstitutional.
Filed October 29, 2017 (Supreme Court Petition Stage)
Filed February 16, 2017 (Texas Supreme Court)
Pidgeon v. Mayor Turner & City of Houston
No.14-56421 / 14-56514
Pro Bono Author: Heidi Bloch
Held: The Texas Supreme Court remanded the case for further proceedings and did not rule on the substantive issues.
Status: The Texas Supreme Court remanded the case for further proceedings and did not rule on the substantive issues. The City petitioned the Supreme Court for certiorari and the Supreme Court denied certiorari.
The City of Houston offered benefits to same-sex spouses of City employees legally married in other jurisdictions prior to the Supreme Court’s decision in Obergefell v. Hodges (which held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state).
Private citizens brought suit as taxpayers against the City, seeking to prevent it from doing so. A Texas district court entered an injunction against the City and ordered the City to discontinue the benefits. The City appealed, which stayed the order. While it was on appeal, the Supreme Court decided Obergefell. The City then argued the case was moot in light of the Supreme Court’s decision and the appellate court agreed, reversing the district court’s original decision and remanding it for proceedings consistent with Obergefell.
The case went up to the Texas Supreme Court and the City argued a number of procedural infirmities. Ultimately the Texas Supreme Court denied the petition for review, on jurisdictional grounds. The Texas Supreme Court’s denial for review would have sent the case back to the trial court and ultimately would have resulted in its dismissal. However, the appellants filed a petition for rehearing and a number of amici came in supporting them, including a number of state legislators. The amici argued that Obergefell only held that same-sex couples have a constitutional right to marry, and that it did not invalidate laws that provide more benefits to heterosexual couples. They also argue that Obergefell should not apply retroactively.
The Texas Supreme Court thereafter granted the petition for rehearing.
The issues on appeal were:
1. Should Obergefell be extended narrowly as the appellants claim i.e., does Obergefell extend beyond the state’s requirement to simply issue marriage licenses and thus require employers to offer the same benefits to same-sex couples as are offered to heterosexual couples
2. Does the Supreme Court’s decision in Obergefell retroactively apply to benefits the City of Houston provided to its employees for same-sex spouses married outside of the state?
In addition to the issues related to the applicability of Obergefell, IMLA’s amicus brief focused on local government autonomy. The Texas Supreme Court did not decide the substantive issues, but instead remanded the case. The City is petitioning the Supreme Court for certiorari and IMLA will file another amicus brief in support of the City.
Filed October 10, 2017 (Supreme Court Petition Stage)
Park v. Thompson
No. 17-294
Pro Bono Author: Timothy Coates
Status: The Supreme Court denied certiorari.
CLICK HERE to view the Amicus Brief.
Kelly Park was tried by the state of California for the murder of Juliana Redding. Part of Park’s defense strategy was to identify another suspect, Gilmore, as the possible killer. Park identified a witness, Ayala, who was Gilmore’s former girlfriend. According to Park, Ayala would have testified that her then-boyfriend choked her on three occasions stating something to the effect of “do you want to see how Redding felt?” while he choked her. In her Complaint, Park claims that Thompson, the lead detective on the case, dissuaded Ayala from testifying by telling her that Gilmore was going to be upset about her statements and that she did not have to talk to the defense / testify, but that if she was subpoenaed, she would have to appear and tell the truth.
The Plaintiff also claims (“on information and belief”) that Thompson and/or other defendant police officers told another police department to file charges against Ayala for assault and criminal threats against Gilmore based on a prior incident. Park claims that Thompson did this so that Park would invoke the Fifth Amendment if she was called to testify. At trial, Ayala invoked the Fifth Amendment and refused to testify and thereafter, the judge ruled that Park could not pursue her third-party culpability theory at trial (because she had no other witnesses / evidence).
Before the trial began, Park moved to dismiss the indictment due to Thompson’s behavior. The criminal trial court held a hearing on the issue and found no misconduct (and witnesses all testified that Thompson had nothing to do with the criminal charges being brought against the witness). After the trial, Park was acquitted of all charges by a jury and she had been out on bail and had remained free pending trial.
Park sued the lead investigator, Detective Thompson, under 42 U.S.C. § 1983 for violating Park’s right to a fair trial because she alleged Thompson intimidated and dissuaded a witness from testifying for the defense. Park also alleged that Thompson and others conspired to prevent the witness from testifying by orchestrating criminal charges against the witness to force her to invoke her Fifth Amendment rights and refuse to testify. Because she was acquitted, she expressly sought no damages for malicious prosecution or incarceration pending trial. Instead, she claims emotional distress damages because she alleges her acquittal was far less certain without the witness and she believes the jury would have deliberated for far less time.
The District Court dismissed both § 1983 claims, but the 9th Circuit panel reversed. The panel majority (there was a dissent) held that the plaintiff adequately alleged substantial interference with a defense witness in contravention of the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. The fact that plaintiff was eventually acquitted did not render the witness testimony immaterial, according to the Ninth Circuit, nor did it bar plaintiff’s § 1983 action stemming from violations of her rights during the underlying criminal investigation and prosecution. The court reasoned that the underlying question was whether the defendant was deprived of a fair trial, and the fact that the person was ultimately acquitted “has little to do with whether the trial was fair.” Finally, the panel majority held that plaintiff pleaded sufficient facts to state a plausible claim for civil conspiracy under § 1983. The City sought en banc review, which was denied.
The central issue in the City’s petition for certiorari is whether a constitutional violation can be established without a showing that suppressed evidence was “material” based on a showing that there was a reasonable probability of a different trial result had the evidence been admitted. Ancillary to that question is whether the evidence suppressed here could be deemed material if the defendant was acquitted of all charges. The Ninth Circuit differs from the 11th Circuit on these questions.
Filed July 5, 2017 (Supreme Court Petition-stage)
City of Phoenix v. Atencio
No. 16-1474
Pro Bono Author: Timothy Coates
Status: The Supreme Court denied certiorari.
CLICK HERE to view the Amicus Brief.
In this case, Phoenix police arrested Atencio for misdemeanor assault. He was transported to Maricopa County’s Jail to be booked into custody. Although the county operates the jail, Phoenix police officers help with the booking process. When Atencio arrived at the jail, Officer Hanlon, a Phoenix police officer, was in charge of processing him for admission to the jail. Hanlon and Officer French, also with Phoenix PD observed that Atencio was confused and did not seem to understand what was happening (he may have been on methamphetamine but also may have had mental issues).
Hanlon escorted Atencio from a holding cell into the linescan room, accompanied by numerous Maricopa County officers. Once Atencio reached the linescan room, Officer Hanlon told Atencio, who was not handcuffed, to remove his shoes to put them through the X-Ray machine. He removed one, but then stated to Hanlon “You can take my shoe off for me” and crossed his arms over his chest. Hanlon then grabbed him by the wrist and twisted his arm behind his back so as to restrain him and take his shoe off him (Hanlon was worried that if Atencio was unrestrained, he would be in a vulnerable position bending over in front of him).
A struggle ensued and Atencio either passively or actively resisted (officers claim this is undisputed that he actively resisted, but the district court found he passively resisted). At this point, Officer French (Phoenix) allegedly used a brief choke hold on Atencio and took him to the ground. Thereafter, numerous other Maricopa County officers held Atencio down in what is characterized as a “dog pile.” While he was held down, a Maricopa County officer tased him while another Maricopa County officer struck him in the face numerous times. French and Hanlon from Phoenix PD were not engaged in the “dog pile” or striking or tasing him, which is undisputed and clear from the video.
After he was tased, the Maricopa County officers got handcuffs back on him. He was then carried off into the “safe cell,” again by Maricopa County officers, where officers held him down in a dog pile, while his clothes were removed. While they were removing his clothing, Hatton delivered a knee strike to Atencio’s back. By the time the officers removed his clothing, he appeared to be unconscious. However, they did not get him any medical attention and they all left his cell. French and Hanlon from Phoenix PD were not in the safe cell with these other officers during this altercation.
Almost 10 minutes later, a nurse observed him on video and noted he wasn’t breathing and she and another medical personnel went in to administer CPR. Atencio ultimately died.
The district court found that Phoenix PD officers Hanlon and French violated Atencio’s constitutional rights either based on their own conduct or the conduct of the other officers and denied summary judgment / qualified immunity. The court reasoned that an individual officer’s conduct cannot be viewed in isolation from the conduct of other officers involved in the incident. Rather, the relevant inquiry is: (1) whether any excessive force was used against the detainee, and if so, (2) whether the individual officer was either personally involved in, or was an “integral participant in,” the use of excessive force.
According to the court (and the rule in the Ninth Circuit), “integral participation” does not “require that each officer’s actions themselves rise to the level of a constitutional violation.” The court concluded that genuine fact disputes existed as to whether Hanlon and French used excessive force against Atencio because Hanlon and French actively engaged in getting Atencio to the ground via the wrist hold and choke hold and thereafter other (non-Phoenix police officers) delivered what was arguably excessive force (taser, knee strikes, strikes to his face). Even if Hanlon/French were no longer physically engaged when those blows were delivered, there was a genuine factual dispute as to whether they were integral participants in the use of excessive force. The court then denied qualified immunity.
The Ninth Circuit affirmed in part and reversed in part. With regard to Officer Hanlon, the Ninth Circuit concluded that he could not be liable for his individual conduct (wrist lock) because he could not have reasonably foreseen that it would trigger the events that resulted in Atencio’s death, but that he could nonetheless be liable for the unexpected excessive force used by the other officers after he disengaged because Hanlon’s wrist lock was instrumental in controlling Atencio and allowing the other officers to use excessive force against him. The panel denied the officers’ petition for rehearing.
The issues in this case are:
(1) Whether the Ninth Circuit’s “integral participant” doctrine improperly holds officials vicariously liable for unforeseeable acts of excessive force by other defendants, in contravention of 42 U.S.C. § 1983 and Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978); and
(2) Whether the Ninth Circuit erred by concluding that a single circuit court case involving the unprovoked beating of a compliant pre-trial detainee “clearly established” that officers could not use a wristlock and brief chokehold to regain control of a noncompliant pre-trial detainee.
Filed April 5, 2017 (Supreme Court Petition Stage)
Town of East Hampton v. Friends of the East Hampton Airport, Inc., et. al
No. 16-1070
Pro Bono Author: Brendan Crimmins
Status: Certiorari was denied on June 26, 2017
The Town of East Hampton owns and operates an airport. The airport provides no scheduled commercial services, but instead, serves a range of private chartered helicopters and fixed-wing aircraft. Due to concerns about airport noise, the Town enacted a number of local laws seeking to address those concerns. Specifically, the Town enacted the following ordinances: (1) a mandatory curfew on all aircraft traffic, (2) an “extended” curfew for certain “noisy” aircraft, and (3) a weekly one-round-trip limit on noisy aircraft.
Various industry groups sued the Town, claiming that the ordinances were preempted by federal law. The district court entered a preliminary injunction, barring the enforcement of the weekly flight limit but declined to enjoin the other two laws.
On appeal, the Second Circuit concluded that all three laws were preempted by federal law. Specifically, the Town did not comply with the Airport Noise and Capacity Act’s (ANCA) procedural requirements, and the court concluded that those requirements are mandatory and apply to public airport operators regardless of their federal funding status. The court also determined that the Town’s failure to follow those procedures could not be deemed reasonable so as to support the proprietor exception to federal preemption under the Airline Deregulation Act, as the failure to comply with mandatory procedures under federal law is by its nature unreasonable.
In so holding, the Second Circuit claimed that it was not overruling its prior decision in National Helicopter Corp. of America v. City of New York, 137 F.3d 81 (2d Cir. 1998). In that case, the City’s restrictions on its heliport were found to be a lawful exercise of its power under the proprietor exception, despite the fact that it apparently did not comply with ANCA procedures. The Second Circuit distinguished National Helicopter, claiming that the court at the time did not consider “whether and to what extent the ANCA’s procedural requirements cabined the reasonable exercise of a municipality’s proprietary authority over airport noise, much less did it decide whether local restrictions imposed in the absence of ANCA procedures were federally preempted.” (The Town disagrees that the court did not consider the failure to follow the procedural requirements in National Helicopter, and thus believes the Second Circuit is overruling its prior decision).
The issue in the petition for certiorari was whether a municipality must comply with the ANCA’s procedural requirements, regardless of federal funding status in order to invoke the proprietor exception to federal preemption.
Filed March 30, 2017 (Supreme Court Petition Stage)
No. 16-1040
Filed October 6, 2016 (Ninth Circuit Petition for Panel Rehearing and Hearing En Banc)
No. 14-55644
Diaz v. City of Anaheim
Pro Bono Author Ninth Circuit & Supreme Court Petition Stage: Steven Renick (2017 Amicus Service Award Recipient)
Status: Certiorari was denied on May 1, 2017
Officer Bennallack testified that he was patrolling a gang controlled area of the city and that he saw Diaz, the deceased, with two other people and believed that criminal activity was likely occurring. Officer Bennallack and his partner attempted to converse with the deceased, but Diaz ran from them and as the officers gave chase Diaz acted as if he were holding something in his waistband. According to the officers, Diaz ran into a fenced area despite having other options. As a result, the officers felt Diaz was luring them into a trap. When Diaz finally stopped and turned towards them (ignoring their commands to put his hands in the air, etc.) after having just thrown something over a fence, the officer believed he had a gun and fired. While the officers did not uncover a gun, they found both a cell phone and a meth pipe. The cell phone had many pictures of the deceased holding weapons, with drugs and with money. Further, the deceased had many gang tattoos and exhibited gang signs in pictures on the phone.
After a six-day trial and upon two hours of deliberations, the jury found for the defendants. The court originally concluded that it would not bifurcate the trial and would allow evidence of gang membership in as evidence only for the damage aspect of the trial if the mother denied knowing her son was in a gang. As the trial proceeded, the gang evidence came in and the plaintiffs argued the evidence was prejudicial and further proved why the trial should have been bifurcated. A panel of the Ninth Circuit agreed, concluding that although decisions to bifurcate are usually left to the discretion of the trial judge, here, that discretion was abused.
IMLA filed an amicus brief in support of the petition for rehearing en banc and also in support of the City’s petition for certiorari.
The issues in this case were:
1. In light of this Court’s repeated admonition that appellate courts may not substitute their judgment for that of the district court concerning matters such as severance of issues at trial and admission of evidence given a district court’s superior position to assess the impact of such issues on a jury, may an appellate court find a district court abused its discretion with respect to such issues only where it identifies objective facts demonstrating that the district court acted irrationally, arbitrarily or capriciously in making its ruling?
2. In light of this Court’s repeated recognition of the principle that jurors are presumed to follow their instructions to disregard particular testimony, given a district court’s superior position to observe the impact of the instructions and evidence on the jury, may an appellate court in a civil case substitute its judgment for that of the district court in assessing whether jurors followed instructions in a particular case and ruling on a motion for a new trial, absent identifying some objective facts showing that the district court’s decision was irrational, arbitrary or capricious?
Filed February 20, 2017 (Supreme Court Petition Stage)
Filed June 27 2016 (Ninth Circuit, petition for rehearing en banc)
Flores v. San Gabriel
No.14-56421 / 14-56514
Pro Bono Author for Ninth Circuit brief: Arthur Hartinger (2017 Amicus Service Award Recipient)
Pro Bono Author for Supreme Court Petition stage brief: Shay Dvoretzky (2017 Amicus Service Award Recipient)
Status: Certiorari was denied on May 1, 2017.
The City provides a flexible benefits plan to its employees, under which the City provides a certain amount of money to each employee for the purchase of medical, vision, and dental benefits. All employees are required to use a portion of these funds to purchase vision and dental benefits. But an employee may decline to use the remainder of these funds to purchase medical benefits if the employee has proof of alternate coverage (such as through a spouse). If that is the case, the employee may receive the unused portion of the benefits as a cash payment added to the employee’s regular paycheck (“cash-in-lieu” payments). This payment appears as a designated line item on the employee’s paycheck.
At some time prior to 2003, the City determined that its cash-in-lieu of benefits payments were “benefits” that were excluded from its calculation of a recipient’s regular rate of pay. Thus, these cash-in-lieu payments were not incorporated into the City’s calculations for the purposes of overtime compensation.
The plaintiffs, police officers with the City, brought suit under the Fair Labor Standards Act, alleging that the failure to include the cash-in-lieu of benefits payments as a part of their regular rate of pay resulted in a lower amount of overtime compensation. The plaintiffs claimed the violation was “willful,” entitling them to a three-year statute of limitations instead of two and also sought liquidated damages.
The Ninth Circuit ruled that the City must include the cash-in-lieu of benefits payments in the employees’ regular rate of pay for the purposes of determining overtime. Because the City did not do so, the court held that it violated the FLSA. The Court found the cash-in-lieu payments did not fall under the exemption provided in section 207(e)(2) – such as vacation or holiday payments, or payments for travel or other expense reimbursements – and held that it is not necessary for payments to be tied to the actual hours worked or the amount of service provided to be considered compensation for purposes of calculating the regular rate. The court further concluded the payments did not fall within the exclusion under section 207(e)(4) for “contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing … health insurance or similar benefits for employee.” The Court reversed the District Court’s rulings that the statute of limitations was limited to two years, and that the officers were not entitled to liquidated damages. The Ninth Circuit determined that the violation was willful because the City did not proffer any evidence to demonstrate that it had taken affirmative steps to ensure its initial designation of these payments as “benefits” (as opposed to compensation) complied with the FLSA and therefore the City did not act in good-faith.
The Ninth Circuit ultimately voted to deny the petition for panel rehearing and the City petitioned the Supreme Court for certiorari.
The issue was whether cash-in-lieu of benefits payments are properly excluded from the regular rate of pay under the FLSA pursuant to § 207(e)(2) because they are not compensation for hours worked.
Filed December 2, 2016 (Supreme Court- Petition Stage)
Town of Chester, New York v. Laroe Estates, Inc.
No. 16-605
Pro Bono Author: Sarah Shalf
Status: Certiorari was granted on January 13, 2017
The original plaintiff in this case was a property developer (Sherman) who sued the Town of Chester for, among other things, an alleged regulatory taking due to the Town’s failure to approve a subdivision that Sherman planned to build on real property that he owned. Laroe Estates, Inc. (Laroe), the potential intervenor was one of two entities that held mortgages on Sherman’s property. The other entity was a bank, and it had the senior mortgage. After Sherman defaulted on his repayments, the bank foreclosed on the property and took possession following a foreclosure sale.
Laroe subsequently moved to intervene in Sherman’s suit against the Town pursuant to Federal Rule of Civil Procedure 24. Laroe argued that it was a “contract vendee” (essentially, a mortgagee) of Sherman’s real property and therefore had a sufficient equitable interest in the property to assert a taking claim against the Town. The district court disagreed. It denied Laroe’s motion to intervene.
The Second Circuit vacated and remanded. The panel identified the relevant question on appeal as whether “a party seeking to intervene as of right must independently have standing.” The Second Circuit noted that a circuit split exists on this issue and joined the majority of circuits in holding that standing is not a prerequisite for intervention under Rule 24.
The issue in this case is whether a party seeking to intervene as a matter of right needs independent Article III standing to do so.
IMLA submitted an amicus brief at the certiorari stage and will join a brief filed by the SLLC at the merits stage.
Filed October 24, 2016 (Supreme Court- Petition Stage)
Direct Marketing Association v. Brohl
No. 16-267
Pro Bono Author: Eric Cintron & Ron Parsons
The question in this case is whether Colorado’s law requiring out-of-state retailers to report total sales to purchasers and the Department of Revenue discriminates against interstate commerce.
Pertinent to this case is the 1992 Supreme Court case, Quill v. North Dakota, holding that a business must be physically present in the state in order for the state to collect a use tax. With the boom of internet retailers, this line of cases has been called into question by the Supreme Court, though not explicitly overruled.
IMLA joined an amicus brief filed by the SLLC taking the unusual stance that the Court should not accept this case. The brief argued that certiorari should be denied because the Court has had no recent interest in accepting cases that expand Quill and that if the Court wants to take a case directly presenting the question of whether Quill should be overturned that case will present itself shortly, but that this case does not squarely present the issue of overturning Quill. The Court denied certiorari.
Filed October 18, 2016 (Supreme Court- Petition Stage)
Hunter v. Cole
No. 16-351
Pro Bono Author: Robert Fugate
Held: The Supreme Court granted the petition and vacated the judgment in light of Mullenix v. Luna.
This case involves a situation where officers encountered a disturbed and suicidal teen in the street with a gun to his head. The teen turned and the officer felt threatened and fired. The teen’s gun went off and did some serious damage to the teen.
The officers sought qualified immunity arguing that they believed the turn was a likely threat to their lives when they fired, but qualified immunity was denied. Several cases in the circuit concluded previously that even where a person was unarmed and acted in what the officers perceived to be a threatening manner that immunity kicked in. Here where the person was armed the court denied immunity. The parents and the teen argued that the officers’ story was concocted after the fact and that the fact that the teen’s gun discharged close to his head indicated that the teen had never used the gun to threaten the officers. The circuit court took this as a factual dispute to be resolved by the jury.
The Supreme Court vacated the circuit court’s judgment, consistent with the arguments made in IMLA’s amicus brief.
Filed July, 8 2016 (Supreme Court- Petition Stage)
District of Columbia v. Wesby
No. 15-1485
Pro Bono Author: Kymberly Evanson
Status: Certiorari was granted on January 19, 2017
CLICK HERE to view the Amicus Brief.
In this case, the District of Columbia Metropolitan Police Department received a late night complaint about a loud party and possible illegal activities inside a house that reportedly had been vacant for several months. Officers soon arrived at the home and heard music coming from inside. When the officers knocked and entered, the people inside scattered into different rooms and hid. Police found twenty-one people throughout the house. The officers observed activity like that “conducted in strip clubs for profit.” Consistent with being a vacant property, the house was in “disarray” and essentially unfurnished.
Police gathered information and interviewed all persons present. No one present owned the house or knew its owner. Some told police that they were there for a birthday party, while others claimed it was a bachelor party. No one could identify the guest of honor. Several said that they had been invited by other people, and some said that a woman known as “Peaches” had given them permission to be in the home. “Peaches,” though, was not present.
Officers called “Peaches” on the phone several times but she was evasive and repeatedly hung up. When an officer asked her to come to the home, she refused, explaining that she would be arrested if she did so. “Peaches” told police she had told the partiers that they could use the home. She also initially claimed to police that the owner had given her permission to use the home and that she was “possibly renting” it from him. Soon, though, “Peaches” admitted to police that, contrary to her initial claim, she lacked the owner’s permission to use the home. Police then spoke with the homeowner, who confirmed that the house was vacant and that no one, including “Peaches,” had permission to be there.
Police arrested all the partygoers inside for criminal trespass (and disorderly conduct – though the petition will focus on criminal trespass), although prosecutors ultimately did not pursue charges.
The partiers brought a Section 1983 claim, alleging the officers lacked probable cause to arrest them for criminal trespass. The district court granted the partiers’ motion for summary judgment, finding that their arrests were without probable cause and that the two defendant officers were not entitled to qualified immunity. After a damages-only trial, the district court entered a judgment against the officers (and jointly against the District of Columbia) totaling nearly $1 million.
The District of Columbia Circuit affirmed in a 2-1 decision. It reasoned that the officers did not have “conflicting information” that would overcome the partiers’ claim that they had been invited to the house by “Peaches” and therefore no reasonable officer could have believed that the partiers knew or should have known that their entry was unauthorized. (The DC statute for trespass required a culpable mens rea on the part of the trespassers). Thus, according to the Circuit Court, a reasonable officer could not have believed that there was probable cause to arrest the plaintiffs.
The DC Circuit next concluded that the law was clearly established, for qualified immunity purposes, because the legal elements of criminal trespass were clearly established, even though no case had invalidated an arrest for trespassing under similar circumstances.
The issues before the Court are: (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.
IMLA submitted an amicus brief at the certiorari stage, framing the issues more broadly. Specifically: (1) whether a police officer assessing probable cause is entitled to credit one set of conflicting statements over another; and (2) even if the officer cannot, whether the law was clearly established on this point. IMLA will join a brief submitted by the SLLC at the merits stage.
Filed February 8, 2016 (Supreme Court – Petition Stage)
City of Houston v. Zamora
No. 15-868
Pro Bono Author: Thomas Hunger, Jason Neal & Andrew Davis
Status: Certiorari was denied on May 16, 2016
Zamora is a police officer with the Houston Police Department (HPD). His father brought a race discrimination claim against HPD and later, Zamora brought a separate charge claiming that HPD retaliated against him for his father’s lawsuit by removing him from a prestigious unit he was on. After three of his supervisors were deposed as a part of the lawsuit, Zamora brought a complaint with the HPD’s Internal Affairs Division (IAD), claiming that those three supervisors had lied under oath and colluded to remove him from his position.
This complaint set off a formal review process by IAD, resulting in a 170 page investigative report written by a Sergeant who collected statements from 22 witnesses (including Zamora, his father and the three supervisors). A Lieutenant reviewed the report and concluded that the allegations against the supervisors were unfounded and moreover, found that Zamora had been untruthful in his statements in the IAD investigation and therefore recommended that Zamora be suspended. The city’s Administrative Discipline Committee (ADC) then reviewed the Lieutenant’s recommendation. The ADC was established by the Mayor to review police investigations of officer misconduct and consists of non-law enforcement civilians. The ADC also found Zamora had been untruthful and recommended suspension for 10 days. That recommendation was then reviewed by additional layers within HPD, and ultimately HPD’s Chief of Police upheld the finding and suspension.
Zamora amended his federal district court retaliation claim to include a retaliation claim based on the IAD suspension for his untruthful statements. Around this same time, an independent arbitrator overturned his suspension (he had sought review of the decision via arbitration). Nonetheless, his suit went forward and a jury ultimately found in Zamora’s favor.
The Fifth Circuit held that the “cat’s paw” theory of liability identified in Staub v. v. Proctor Hospital, 562 U.S. 411 (2011) was a viable theory of liability in the context of a Title VII retaliation claim. The court so held, despite the fact that Staub involved a claim requiring a plaintiff to only prove the discriminatory animus was a “motivating factor” in the adverse employment action, whereas the Court’s decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) requires a “but for” showing for causation in retaliation claims. On this point, the Fifth Circuit found that “but for” the testimony of the three supervisors which was allegedly motivated by retaliatory animus, Zamora would not have been suspended.
The Fifth Circuit rejected the city’s argument that the “many layers of review between the CRU supervisors’ statements and the ultimate decisionmaker” broke the chain of causation and made the cat’s paw theory of liability inapplicable here.
The issues before the Court in the petition for certiorari are:
1. Whether the “cat’s paw” theory of liability recognized in Staub v. Proctor Hospital, 562 U.S. 411 (2011), for statutes that require animus to be merely a “motivating factor” in an adverse employment decision is equally applicable to statutes that demand prohibited animus to be the “but-for” cause of the adverse action.
2. Whether the “cat’s paw” theory of liability extends to employment actions taken after an extensive internal review process that considers testimony from nearly two dozen witnesses and provides multiple layers of independent review, including an independent review board with citizen involvement, just because a federal jury ultimately reaches a different conclusion about witness credibility.
In addition to arguing that the Fifth Circuit’s decision was wrong in its application of the law, IMLA’s brief argued that the decision exposes public employers to expansive liability and undermines careful internal review procedures that are designed to protect employees and the public alike.
Filed February 3, 2016 (Supreme Court Petition Stage)
United States Air Funds, Inc. v. Bible
No. 15-861
Pro Bono Author: Ashley Johnson
Status: Certiorari was denied on May 16, 2016
The question this case presents is whether the Court should overrule Auer v. Robbins, 519 U.S. 452 (1997), which requires courts to defer to agency interpretations of their own regulations, even where such interpretations first appear in things like an amicus brief (as was the case here).
When Bryana Bible defaulted on her student loan, USA Funds stepped in as the guarantor of the loan. The loan is governed by a Promissory Note subject to the Higher Education Act and regulations promulgated by the Department of Education. When Bible signed the Note, she agreed that “[i]f she default[s] on any loans, [she] will pay reasonable collection fees and costs, plus court costs and attorney fees.” After Bible’s lender found her in default, USA Funds paid the default claim and the lender transferred the loan to USA Funds. USA Funds sent Bible a letter providing options for rectifying her default, including an alternative payment plan or a rehabilitation agreement. Bible and her lawyers chose the latter and agreed to pay $50 a month for at least nine months so that the default would not remain on her record. And consistent with the terms of the agreement, USA Funds assessed reasonable collection costs.
Bible sued, on behalf of a putative nation-wide class of defaulted borrowers, alleging that charging her collection costs not only breached the terms of the regulations incorporated into the Note, but also violated RICO—and entitled her (and the putative class) to treble damages and attorneys’ fees.
The district court dismissed the complaint for failure to state a claim. On appeal, the Seventh Circuit panel invited the Department of Education to submit an amicus brief expressing its views. The Department did so, announcing for the first time that it interpreted its regulations as categorically prohibiting the collection costs. In support, the Department invoked another, separate, regulation stating that collection costs may not be assessed when a borrower undertakes a “repayment agreement” that the guaranty agency determines to be “satisfactory,” and the Department asserted that a “rehabilitation agreement” is, and must always be, a “repayment agreement on terms satisfactory to the [guaranty] agency”—even though the Department’s own website (as well as the statute) states that collection costs “may” be applied to rehabilitation agreements, and even though that website states that “repayment” is an option separate from “rehabilitation” for those in default on their student loans.
The Seventh Circuit was divided and Judge Flaum provided the controlling concurrence, holding that the court is required by Auer to accept the agency’s view that collection costs may not be assessed against borrowers who sign rehabilitation agreements.
The Seventh Circuit denied the motion for rehearing en banc. In his concurrence of the denial, Judge Easterbrook noted:
[W]hether Auer supports the Secretary’s current position . . . is a substantial and potentially important question, but an antecedent issue is whether Auer is sound. In concurring opinions to Perez v. Mortgage Bankers Association, three Justices (including Auer’s author) expressed deep reservations about deferring to the position an agency adopts through means other than rulemaking.
I do not think that it would be a prudent use of this court’s re-sources to . . . consider how Auer applies . . . when Auer may not be long for this world. The positions taken by the three members of the panel show that this is one of those situations in which the precise nature of deference (if any) to an agency’s views may well control the outcome.
IMLA’s amicus brief argued that from a practical standpoint, Auer deference provides a perverse incentive for administrative agencies to draft vague regulations or effectively rewrite their regulations without going through notice and comment rulemaking, under the guise of merely “interpreting” those regulations, knowing that reviewing courts must in nearly all instances give those “interpretations” binding effect—even when they are announced for the first time in an amicus brief, as in this case. Not only are local governments burdened through litigation by agencies that interpret their regulations in this manner, but local governments also often regulate in the same space as those agencies so they have an interest in those agencies providing clarity in their regulations so that local regulations do not inadvertently conflict with federal regulations and risk preemption.
Filed January 22, 2016 (Supreme Court Petition Stage)
Blanchard & Walworth County v. Brown
No. 15-824
Pro Bono Author: Sarah Shalf
Status: Certiorari was denied on April 25, 2016.
The issue in this case is whether, on an interlocutory appeal from the denial of qualified immunity, a circuit court must accept a district court’s conclusion that there are material disputes of fact or that the factual disputes are genuine.
The facts of this case involve a suicidal young man, John Brown. His mother called 911 after finding that he had cut himself in his bedroom with a knife. Shortly thereafter, two officers arrived on the scene; officer Blanchard and officer Such. After his mother conveyed the relevant information to the officers, including that the knife was in her son’s possession, she went into the living room of the mobile home where she could no longer see what transpired, however, she could hear the officers from there. Officer Such went outside to look through the bedroom window and saw Mr. Brown drinking a beer and smoking a cigarette. Officer Such radioed that information and returned to officer Blanchard. Officer Blanchard kicked in the locked bedroom door. Both officers observed Mr. Brown holding a knife with blood dripping down his arm. He walked over toward the officers and closed the door on them. Officer Blanchard then kicked in the door again and, according to the officers, he ordered Mr. Brown to drop the knife and told him they would have to shoot him if he did not drop it. Instead of dropping the knife, Mr. Brown raised the knife over his head and advanced on the officers. When he was within 5-6 feet of the officers, officer Blanchard shot and killed him.
Mr. Brown’s mother disputes that the officers told her son to drop the knife and she claims she heard her son say “fine, come in and shoot me between the eyes and kill me.” It is undisputed, however, that she could not see the events that transpired and that she therefore did not know whether her son had threatened the officers with the knife by raising it and advancing on them.
The district court held that the mother’s testimony that the officers did not tell her son to drop the knife discredited their testimony regarding whether Mr. Brown had threatened them with the knife. The court therefore found a dispute of material fact as to whether the officers had been threatened (despite the uncontradicted testimony on this point as the officers were the only ones able to see the events) and concluded that qualified immunity was therefore inappropriate.
The Seventh Circuit concluded that its review of the denial of qualified immunity on an interlocutory appeal is limited and that it cannot “determine whether the district court erred in finding that a genuine issue of material fact exists.” The court therefore determined that it must accept the district court’s conclusion that there was a genuine dispute of material fact as to whether Mr. Brown had raised the knife and advanced on the officers at the time he was shot. After so concluding, the Seventh Circuit held that the denial of qualified immunity was appropriate because it was clearly established that the use of deadly force against a nonresisting or passively resisting suspect was unjustified.
In arguing that certiorari should be granted, IMLA argued that the Supreme Court’s jurisprudence on appellate review of qualified immunity at the summary judgment stage is unclear and therefore has created a circuit split necessitating the Court’s review.
Filed December 16, 2015 (Supreme Court Petition Stage)
Wasatch County v. Ute Indian Tribe
No. 15-640
Pro Bono Author: Erik Jaffe
Status: Certiorari was denied on March 21, 2016.
The underlying facts of this case are largely irrelevant and involve a long tortured litigation history between Utah, some of the counties in Utah, and a Native American Tribe; the Ute Indian Tribe (the “Tribe”). The dispute centers on what the boundaries of the Tribe’s reservation are.
Relevant for IMLA’s purposes was that the Tenth Circuit enjoined Wasatch County from prosecuting a member of the Tribe based on an exception to the Anti-Injunction Act that permits enjoining a state court proceeding to enforce a prior federal court judgment. Notably, however, the county was not a party to the prior case (which did not even produce an enforceable judgment as the parties settled). The Tenth Circuit nonetheless held that every county was in privity with the State who was a party to the prior suit even though there was no evidence that the State had litigated the prior litigation with Wasatch county’s interests in mind. To the contrary, the State settled with the Tribe and the county received nothing for that settlement.
On this privity point, the Tenth Circuit noted “[i]t’s not just parties who are bound by prior decisions: those in privity with them often are too, and counties are usually thought to be in privity with their states for preclusion purposes when the state has lost an earlier suit.” (emphasis added).
The question presented in the petition for certiorari is: “Did the court of appeals err in defying this Court’s decision in Hagen v. Utah and enjoining a proper state court prosecution of a tribal member on lands that this Court has held have been diminished by Congress?” Because IMLA’s brief focused solely on the privity issue, and not on boundary dispute, IMLA framed the issue as whether a local government is in privity with a state for preclusion purposes when there is no evidence that this particular local government’s interests were litigated or protected by the state.
Filed December 14, 2015 (Supreme Court Petition Stage)
Michigan Gaming Control Board v. Moody
No. 15-623
Pro Bono Author: Marcelyn Stepanski
The Michigan Gaming Control Board (MGCB) regulates harness racing, a form of horse racing, in Michigan. In the course of investigating allegations of illegal race-fixing, Michigan horse-racing stewards asked the plaintiffs, who were all harness drivers, questions that they construed as possibly self-incriminating. Invoking the Fifth Amendment to the Constitution, the harness drivers refused to answer. Because of this refusal, the MGCB suspended the harness drivers’ licenses to race and excluded them from horse-racing grounds.
The harness drivers sued the MGCB and its employees in federal district court under §1983 seeking damages and injunctive relief. Relevant to this case is the Supreme Court’s decision Garrity v. New Jersey, which held that confessions given by public employees (police officers) threatened with job loss were “coerced” and, therefore, the Fifth Amendment barred their use in a criminal proceeding. 385 U.S. 493 (1967).
The Sixth Circuit held that the Fifth Amendment of the Constitution entitled the harness drivers to refuse to answer potentially self-incriminating questions unless the state immunized them from prosecution and by punishing them – i.e., revoking their license and excluding them from the grounds– the MGCB violated their constitutional rights. In so holding, the Sixth Circuit relied on Garrity despite the fact that there were no criminal proceedings. The Sixth Circuit therefore held that the plaintiffs had a viable §1983 claim and remanded on the question of whether the right was clearly established at the time of the violation.
The petition for certiorari raises the following two questions:
1. Does the 5th Amendment hamstring State gambling regulators by requiring them to obtain a formal grant of immunity from all potential prosecutorial agencies before taking administrative action against a licensee who invokes his 5th Amendment privilege not to answer regulatory-related questions?
2. Can a regulatory licensee prove a civil-rights claim premised on a violation of 5th Amendment rights when the licensee has not given incriminating statements or been subjected to criminal proceedings?
IMLA’s brief focused on the case’s significance to local governments in terms of employment and for code enforcement purposes.
Filed September 10, 2015 (Merits-stage brief; SCOTUS)
Franchise Tax Board of California v. Hyatt
No. 14-1175
Petition-stage brief filed April 24, 2015
Petition Stage Pro Bono Author: Quin Sorenson
Merits Stage Pro Bono Author: Quin Sorenson
Status: Certiorari was granted on June 30, 2015
This case involves a former California resident who earned hundreds of millions of dollars in licensing fees during the time that he lived in California before moving to Nevada. In 1993, the Franchise Tax Board of California (FTB) audited his California tax returns and concluded that he owed the state millions in unpaid income taxes, interest, and penalties. The now Nevada resident responded by filing suit against FTB in Nevada state court, alleging that FTB had committed fraud, intentional infliction of emotional distress and other torts in the course of the audit.
The Nevada Supreme Court held that the discretionary-function immunity for a governmental entity and its employees was not applicable in this case because the Nevada Court recognizes an exception to that immunity for bad-faith conduct. The Nevada Supreme Court also held that FTB was not entitled, under principles of comity, to the Nevada statutory cap on damages that is available to Nevada governmental entities. The court concluded that allowing FTB to utilize the damages cap would violate Nevada’s public policy because the state’s interest in providing relief to its citizens outweighs the comity principles.
The petition raised three issues for review by the Supreme Court: (1) Whether the federal discretionary-function immunity rule, 28 U.S.C. §2680(a), is categorically inapplicable to intentional torts and bad-faith conduct; (2) Whether Nevada may refuse to extend to sister States haled into Nevada courts the same immunities Nevada enjoys in those courts; and (3) Whether Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign State to be haled into the courts of another State without its consent should be overruled.
IMLA submitted an amicus brief at the petition stage focusing on the first and second issue and certiorari was granted on June 30, 2015.
Filed August 13, 2015 (Supreme Court – Petition Stage)
Schott v. Wenk
No. 15-54
Pro Bono Author: Francisco Negron
Status: The petition for certiorari was denied on January 11, 2016.
Nancy Schott, the public school director of pupil services, made an allegation of child abuse against Peter Wenk, the father of a child at Ms. Schott’s school. And while much of the information in her report is contested by her colleagues, the Sixth Circuit accepted that her report was not materially false and that it could support a “reasonable basis” to suspect child abuse. The subject of the report claimed that Schott filed the report in retaliation for him requesting a “special ed prom” for his daughter and for his request that his daughter’s education plan be changed to include more social opportunities. School officials are mandatory child abuse reporters in Ohio.
The Sixth Circuit denied Schott qualified immunity concluding that a reasonable person in her position would have known that she was violating the Wenks’ First Amendment rights. The court cited circuit precedent holding that school officials can be liable for making false child abuse reports in retaliation of parents exercising their First Amendment rights. Schott pointed out that Ohio’s child abuse reporting statute immunizes reports made in bad faith. The Sixth Circuit responded: “The Supreme Court has long held ‘that a state law that immunizes government conduct otherwise subject to suit under § 1983 is preempted, even where the federal civil rights litigation takes place in state court, because the application of the state immunity law would thwart the congressional remedy, . . . which of course already provides certain immunities for state officials.’”
The petition for certiorari raises three issues for consideration, of which, the following two were addressed by the brief submitted by IMLA: (1) Whether a mandatory child abuse reporter is entitled to qualified immunity when there is evidence in the record to support a reasonable basis to suspect abuse and the report is not materially false; (2) Whether a constitutional retaliation claim under the First Amendment against a mandatory reporter of child abuse is cognizable under Section 1983 even where reasonable grounds exist to suspect abuse and where the report is not materially false.
Filed April 14, 2015 (Petition-stage brief; SCOTUS)
Securities and Exchange Commission v. City of Miami & Bordeaux
No. 14-10363
Petition-stage Pro Bono Author: Sarah Shalf
Amicus Brief to the Eleventh Circuit filed November 13, 2014
Eleventh Circuit Pro Bono Author: Jay Solowsky
Status: Certiorari was denied on June 29, 2015
The SEC instituted a civil enforcement action against both the city of Miami and various financial officials, including the Budget Director for the city, alleging that they committed securities fraud through both misrepresentations and omissions in their financial documents. The city and the Budget Director argued that the Budget Director was entitled to qualified immunity as a matter of law because he was acting within the scope of his duties when the alleged misconduct occurred.
The Eleventh Circuit upheld the district court’s denial of qualified immunity for the Budget Director, reasoning that the doctrine of qualified immunity did not bar the SEC’s action seeking civil penalties against the Budget Director (as opposed to where a plaintiff seeks damages).
The Budget Director submitted a motion for rehearing en banc to the full panel for the Eleventh Circuit and IMLA submitted an amicus brief supporting that appeal. The full panel denied the motion for rehearing and the Budget Director petitioned the Supreme Court for certiorari. IMLA will also submit an amicus brief in support of the petition for certiorari.
The issue is being framed broadly in the petition for certiorari. The question presented is whether municipal employees should be entitled to assert the defense of qualified immunity in non-Section 1983 matters (a question that the circuit courts are currently split on).
Filed March 4, 2015 (Petition-stage brief; SCOTUS)
Animal Care Trust v. United Pet, Inc.
No. 14-954
Pro Bono Author: Linda Coberly & Geoffrey Eaton
Status: Certiorari was denied on June 1, 2015
The city of Chattanooga contracts out its animal-welfare services to a private non-profit corporation (“McKamey”). McKamey was under contract with the city to provide animal services and to enforce the city’s ordinances regarding animal welfare within the city. Their officers are commissioned by the city as special police officers to provide those services and they are authorized by the city to investigate complaints of neglect and animal cruelty and to issue citations on behalf of the city. Two of the three individual defendant employees of McKamey were commissioned as special police officers of the city and one was not. McKamey received complaints about abuse, neglect and unsanitary conditions regarding a store selling pets, United Pet Supply, Inc. (the “pet store”), including reports of a dead puppy. When the McKamey employees went to the store to investigate, they discovered that the pets were being maintained in inhumane conditions and they proceeded to remove the animals and certain business records from the store.
The store brought a § 1983 case against the individual employees of McKamey as well as McKamey and the City of Chattanooga claiming that the removal of the pets and revocation of the pet store’s permit without a hearing violated the store’s due process rights and constituted a warrantless seizure of its animals and business records in violation of the Fourth Amendment. McKamey and the three individual employees claimed they were entitled to qualified immunity on all claims.
The Sixth Circuit held that the two individual employees who were commissioned as special police officers by the city could assert the defense of qualified immunity, however, the individual who was not commissioned as a special police officer was not entitled to assert the defense of qualified immunity. The Sixth Circuit also held that the company was not entitled to assert the defense of qualified immunity, just as the city cannot assert qualified immunity.
The issue before the Court is whether private companies and their employees should be entitled to assert the defense of qualified immunity where they are contracted by a municipality to perform functions traditionally performed by government.
Filed February 20, 2015 (Petition-stage brief; SCOTUS)
Baltimore City Police Dept., et. al v. Owens
No. 14-887
Pro Bono Author: Glen Allen
Status: Certiorari was denied on April 27, 2015
The Respondent was convicted of rape and murder in 1988 and was later released based on DNA evidence. He brought a §1983 complaint, alleging, among other things, that the Baltimore City Police Department and the individual police officers violated his constitutional rights by intentionally withholding exculpatory evidence during the 1988 trial.
The defendant’s conviction was vacated in 2007 based on the DNA evidence. The state filed a nolle prosequi in October of 2008. In Maryland a nolle prosequi has no final effect on criminal proceedings unless jeopardy has attached or the statute of limitations has run on the criminal charge. In Maryland murder is not subject to limitations.
The Respondent’s claims against the police and the prosecutor were that an accomplice who testified at the trial against him gave several conflicting statements to the police (the police agree) but that the prosecution did not turn this evidence over to the Respondent at his criminal trial so that the accomplice could be cross examined.
The city argued that the statute of limitations began to run when the cause of action accrued, i.e., when the conviction was vacated in 2007, and the complaint should therefore be dismissed. However, the Fourth Circuit concluded that limitations for cases involving Brady violations do not run until the case is finally concluded and the Fourth Circuit held that the final conclusion was entry of the nolle prosequi in 2008.
The second issue in the case is whether the police officers in 1988 were aware that they were subject to personal liability for failing to disclose Brady material to the prosecutor. The Fourth Circuit concluded that they should have known based on Fourth Circuit precedent that they could be personally liable and qualified immunity was therefore inappropriate. However, a review of the case law from that circuit suggests that the issue was not so clear and that as late as 1997 the Fourth Circuit seemed to have a murky view of the issue. Perhaps more to the point, the Fourth Circuit used a case decided about a year after the events in this case to conclude that the issue was settled in the circuit.
There are two issues before the Court in this petition. First, when does the statute of limitations begin to run in a case that is reversed for a Brady violation? The city contends, and IMLA agrees, that the statute of limitations should begin to run in a case involving a Brady violation when the conviction that is based on a Brady violation is vacated, as a retrial will not implicate the Brady violation and the civil action can proceed without implicating any further criminal trials.
The second issue in the case is whether the police officers in 1988 were aware that they were subject to personal liability for failing to disclose Brady material to the prosecutor. In other words, the question before the Court is whether police officers have an independent duty under Brady to provide exculpatory evidence to the defense.
Filed January 16, 2015 (Merits-stage brief; SCOTUS)
City and County of San Francisco v. Sheehan
No. 11-16401
Petition-stage amicus brief filed on June 26, 2014
Pro Bono Author (merits and petition): Sarah Shalf
Held: The first issue, i.e., whether the Americans with Disabilities Act applies to police officers effectuating an arrest, was dismissed as improvidently granted. Regarding the second issue, Court held that police officers who were faced with an armed, violent, mentally ill suspect who had already made death threats to three people did not violate clearly established law when they entered the suspect’s residence instead of trying to accommodate her disability and that they were therefore entitled to qualified immunity
In this case, two police officers were called by a social worker to take Sheehan (the Respondent) into custody for an involuntary mental evaluation after Sheehan had threatened a social worker with a knife. When the officers arrived, they opened the door to Sheehan’s residence and she threatened to kill them and brandished a knife. They closed the door to her residence and called for backup. However, they then made the determination to reenter her residence before backup arrived to effectuate the arrest, in order to prevent Sheehan from harming herself or others. When they reentered, Sheehan rushed them with a knife. The officers tried to use pepper spray to stop her and when that didn’t work, they shot her several times. She survived and sued under 42 U.S.C. § 1983 and the ADA.
The Ninth Circuit agreed with the district court that the first entry was lawful (under the warrantless search exemption to render emergency assistance or respond to exigent circumstances) as was the officers’ ultimate use of deadly force under the circumstances. However, the Ninth Circuit held that the officer’s second entry into Sheehan’s residence was unlawful under both the Fourth Amendment and ADA. The court held that the second entry was unreasonable under the Fourth Amendment, on the basis that it was unreasonable to make an otherwise lawful entry when the officers could have desisted from their efforts to arrest Sheehan in light of her resistance and mental illness, and used different tactics that might have resulted in a different outcome. Regarding Sheehan’s claim under the ADA, the Ninth Circuit held that the “reasonable accommodation” requirement of Title II of the ADA applies to officers’ conduct in the course of an arrest – including an arrest of a violent individual like Sheehan. The court further held that the issue of the reasonableness of the accommodations proposed after this incident by Sheehan’s litigation expert (i.e., that the officers should have allowed Sheehan to remain in her “comfort zone” until they were able to calm her down), was one for the jury.
The Supreme Court granted certiorari on two issues: (1) whether the ADA requires police officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of an arrest; and (2) whether it was clearly established for the purposes of the Fourth Amendment that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable by reason of the anticipated resistance of an armed and violent suspect within the residence.
IMLA’s brief argued, among other things, that individual police officers should not be required to perform an analysis regarding what accommodations are necessary under the ADA, but rather, police officers should be afforded the broad discretion in these circumstances.
The Court dismissed the first issue regarding the ADA as improvidently granted.
Regarding the Fourth Amendment issue, the Court noted that the “real question” was “whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempting to accommodate her disability.” Despite having reframed the question presented on the Fourth Amendment issue, the Court declined to rule on this constitutional question – i.e., whether the officers violated the Fourth Amendment by entering the suspect’s home the second time rather than attempting to accommodate her disability. The Court instead, rested its holding on the fact that the law was not clearly established at the time of the events, thereby entitling the officers to qualified immunity. In so holding, the Court reversed the decision of the Ninth Circuit, admonishing that court that it has “repeatedly told courts – and the Ninth Circuit in particular – not to define clearly established at a high level of generality…Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the right to be free from unreasonable searches and seizures.” The Court explained that under the circumstances, a reasonable officer could have concluded that the second entry into Sheehan’s home was justified both under the continuous search rationale and the exigent circumstances rationale.
Filed August 29, 2014 (Petition-stage brief; SCOTUS)
Wyatt v. Gonzalez
No. 14-108
Pro Bono Author: Jill Williams
Status: Certiorari was denied on November 17, 2014
This case involves a question of whether a police officer was entitled to qualified immunity after he used deadly force when he became a prisoner in a vehicle controlled by an individual who had already committed several dangerous felonies. The Ninth Circuit held that because the parties disputed how fast the van was traveling at the time the trapped officer shot and killed the driver, summary judgment was inappropriate as a reasonable jury could conclude that the use of deadly force violated the Fourth Amendment. In a scathing dissent, Judge Trott explains that the majority’s focus on the speed of the van is entirely misplaced for the purposes of the Fourth Amendment and that under Garner and other well-established Supreme Court precedent, the officers’ actions were objectively reasonable under the circumstances. Specifically, Judge Trott notes that the “factual dispute” relied upon by the majority – i.e., the speed of the van at the time the officer shot the driver – is not a “material” fact and therefore should not have been considered in the Fourth Amendment reasonableness analysis.
The issue before the Supreme Court is whether, contrary to precedent in Scott v. Harris, 550 U.S. 372 (2007) and Rule 56 of the Federal Rules of Civil Procedure, the Ninth Circuit erred when it concluded that immaterial discrepancies in a police officer’s recollection of a stressful event amounted to a “genuine issue for trial” even where the plaintiff offered no contradictory evidence. IMLA’s brief argues that the Ninth Circuit’s holding renders Rule 56 of the Federal Rules of Civil Procedure essentially impotent in excessive force cases brought under 42 U.S.C. § 1983.
Filed August 18, 2014 (Petition-stage brief; SCOTUS)
Schultz v. Wescom
No. 14-59
Pro Bono Author: Adam Rosenberg
Status: The Supreme Court denied certiorari on December 15, 2014
This case involves a question of whether a municipality/police officer may immediately appeal a decision by a district court to defer the issue of qualified immunity until the completion of discovery. The Circuit Courts are split on this question with the Seventh and Ninth Circuits holding that such a decision is not appealable on an interlocutory basis, while the majority of the other Circuit Courts hold that such a decision is immediately appealable. In this case, the Ninth Circuit held on appeal that there is no appellate jurisdiction of a rule 56(d) deferral for a limited time to conduct discovery as it is not a denial of qualified immunity.
If the Ninth Circuit is correct, municipalities and police officers will be required to expend far greater resources before being able to move for summary judgment. IMLA’s brief argues that the purpose of qualified immunity is to shield officers from the costs of having to go through the litigation process and it is certainly in municipalities/police officers’ best interest to have questions of qualified immunity resolved at the earliest possible time-frame.
Filed August 18, 2014 (Petition-stage brief; SCOTUS)
City of Newport Beach v. Pacific Shores Properties, LLC
No. 14-56
Pro Bono Author: Tiffany Israel
Status: The Supreme Court denied certiorari on November 3, 2014
The City of Newport Beach enacted an ordinance restricting group living arrangements, which on its face does not single out any particular group living arrangements. Prior to the ordinance’s enactment, “group homes” – i.e., homes in which recovering alcoholics and drug users live communally – were generally permitted in the City’s residential zones. According to the Ninth Circuit decision, the practical effect of the ordinance was to prohibit new group homes from opening in most residential zones and to require existing group homes to undergo a permit process to continue their operations. According to the Ninth Circuit and the plaintiffs in the case, the purpose behind the ordinance was to limit and eventually eliminate group homes from the City’s residential zones. The plaintiffs brought suit under the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA), attacking the validity of the ordinance as persons recovering from addiction are protected from housing discrimination.
The Ninth Circuit held that the plaintiffs had created a triable issue of fact as to whether the City had violated the ADA and FHA when it enacted the zoning ordinance restricting the areas of the City in which group homes for recovering addicts, as well as other group residential living facilities, can be located. According to the Ninth Circuit, a jury could find—based on the history that preceded the ordinance’s enactment and comments made during city council meetings—that the facially neutral ordinance was motivated by an improper desire among city officials and local residents to discriminate against recovering addicts. The panel further held that the plaintiffs were not required to identify similarly situated individuals who were treated better than themselves in order to survive summary judgment, despite the fact that they were proceeding on a disparate treatment theory of discrimination.
The issue before the Supreme Court is whether a disparate-treatment claim under the FHA and ADA that challenges a facially nondiscriminatory law on the ground that the law nevertheless intentionally discriminates on the basis of disability can prevail absent proof of discriminatory effects. IMLA’s amicus brief argues, among other things, that the Ninth Circuit’s decision will have a chilling effect on public comments of elected municipal officials, municipal staff, legal counsel, and members of the public for fear of creating the evidence necessary to support a challenge to proposed municipal action even where no discriminatory effect has been demonstrated.
Filed August 5, 2014 (Merits-stage brief; SCOTUS)
Comptroller v. Wynne
No. 13-485
Merits Author: Paul Clement & Zack Tripp
Petition-stage brief filed on November 18, 2013
Petition stage author: Erich Eiselt (IMLA)
Maryland taxes the entire income of its residents by imposing a state income tax with two components: a State tax and a County tax. The County tax is based on where the individual is domiciled and maintains a principal residence. State law provides for a tax credit for taxes paid to other states, but this credit does not apply to offset a resident’s County tax obligation. The Respondents are a married couple with five children residing in Howard County, Maryland. In 2006, the tax year at issue, Mr. Wynne held a 2.4% ownership interest in a Maryland Subchapter-S corporation based in Howard County. The Wynne’s object to Maryland’s taxing scheme, claiming that the County tax creates a situation of unconstitutional double taxation in violation of the dormant commerce clause. The Maryland Court of Appeals held in favor of the resident tax payers.
The Supreme Court accepted certiorari and will resolve the conflict created by the Maryland Court of Appeals’ decision between a most basic principle of state sovereignty – the right of a state to tax a resident within its boundaries, which has been recognized throughout the history of the Court–and the unwritten, amorphous and arbitrary concept of “dormant” Commerce Clause jurisprudence.
Filed July 21, 2014 (Petition-stage brief; SCOTUS)
Kalamazoo County Road Commission v. Deleon
No. 13-1516
Pro Bono Author: Conor Dugan
Status: The Supreme Court denied certiorari on January 12, 2015
The Respondent, Robert Deleon, worked for the Kalamazoo County Road Commission (“the Commission”). A vacancy arose for a new position within the Commission for which he applied. Deleon was interviewed, but was not ultimately offered the position. The Commission offered the position to another candidate, but that candidate left shortly after he was hired. Subsequently, the Commission transferred Deleon to the position that he had originally applied for. Deleon objected to the transfer (even though he originally requested it) and demanded a raise at the time of the transfer, which he was denied. After the transfer, he took a medical leave and the Commission ultimately terminated his employment after eight months of leave, indicating that he had exhausted all of his available leave.
The Sixth Circuit concluded that a reasonable jury could find that Deleon had suffered an adverse employment action based on the lateral transfer. The court concluded that the mere fact that Deleon had previously applied for the position does not “categorically bar a finding of an adverse employment action.” The court reasoned that the “key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the ‘conditions of transfer’ would have been ‘objectively intolerable to a reasonable person.’”
The question before the Supreme Court was whether an employee has suffered an adverse employment action when an employer transfers the employee to a position that the employee himself requested. IMLA’s brief argued, among other things, that as a result of an existing circuit split, employers do not have a clear, workable standard regarding transfer decisions. Further, the Sixth Circuit’s decision subjects employers to potential liability whether after granting employee requests or denying them, which IMLA noted that it is especially problematic for public-sector employers whose employees are often governed by collective bargaining agreements, which often include provisions regarding transfers.
Filed June 4, 2014 (Merits-stage brief; SCOTUS)
Integrity Staffing Solutions, Inc. v. Busk
No. 13-433
Pro Bono Author: James Ho
Petition-stage amicus brief – Filed on November 7, 2013
Held: The Court unanimously held that the time the employees spent waiting to undergo security screenings was not compensable under the FLSA.
Integrity Staffing Solutions provides temporary warehouse staffing to clients such as Amazon.com. In 2010, two plaintiffs filed a putative collective and class action alleging that pursuant to the FLSA, they, and hundreds of other former and current employees of Integrity, were entitled to compensation for time spent undergoing security screenings at warehouses in which they filled orders for the online retailer.
Integrity filed a motion to dismiss arguing that the time spent clearing security checks at the end of the work day is not compensable under the FLSA, as the security screenings were not “necessary and integral” to the employees’ jobs as warehouse workers. Integrity’s argument in favor of dismissal was consistent with decisions of the Second Circuit and the Eleventh Circuit.
The district court agreed with the holdings of those courts and held that even if the security checks were necessary to the employer’s goal of minimizing employee theft, plaintiffs still did not state a claim upon which relief could be granted because the security screenings were not “necessary and integral” to the employees’ jobs of order fulfillment. Plaintiffs appealed, and with respect to their claim regarding the compensability of time spent proceeding through security screenings, the Ninth Circuit reversed. The issue in this case was whether time spent in the security screenings is compensable under the FLSA. The Supreme Court held that it was not.
Filed April 21, 2014 (Petition-stage brief; SCOTUS)
Koopman v. Myers
No. 13-1143
Pro Bono Author: John Wilkerson
Status: Certiorari was denied
This case implicates important questions for law enforcement regarding whether a claim for malicious prosecution may be brought as a 4th Amendment violation under § 1983.
The Respondent asserts that Detective Koopman obtained an arrest warrant by falsifying an affidavit to create the illusion of probable cause. Pursuant to that warrant, law enforcement searched the Respondent’s property and discovered a jar containing a white substance. Field tests initially incorrectly identified the substance as methamphetamine. The Respondent was then arrested, again, according to the Respondent, as a result of falsified information in another Koopman affidavit, and he spent three days in custody. Additional tests on the substance revealed that it was not a controlled substance and all charges were subsequently dropped against the Respondent on November 15, 2007.
The Respondent brought suit in district court on November 5, 2009 under § 1983, alleging violations of the Fourteenth and Fourth Amendments. The district court granted judgment on the pleadings for all claims, holding that the Fourteenth Amendment claim should be dismissed because an adequate state remedy existed and the Fourth Amendment claim was untimely. The Tenth Circuit reversed the district court’s ruling on the Fourth Amendment claim, reaffirming that in the Tenth Circuit, a claim for malicious prosecution exists under § 1983 and that the statute of limitations began from the date the charges were dropped against the Respondent, not the date that he was arrested.
This case raises the following questions: (1) Whether a §1983 malicious prosecution claim exists under the Fourth Amendment against an investigating police detective; and (2) If such a claim exists, in a situation not involving a conviction should the applicable statute of limitations begin to run when the claimant was detained pursuant to the arrest warrant?
Filed March 24, 2014 (Petition-stage brief; SCOTUS)
City of Chicago v. Jimenez
No. 13-997
Pro Bono Author: Lawrence Rosenthal
Status: Certiorari denied on April 7, 2014
This case involved an appeal from a district court’s finding of a Batson violation and a forfeiture of a peremptory challenge imposed as a sanction. As a result of these rulings, the City was not permitted to exercise one of its three peremptory challenges. Batson requires the district court to make a finding of fact regarding whether the reason the attorney has offered for the use of a peremptory strike is pretextual. In this case, the City tried to strike an African-American juror whose great-nephew had recently been released from prison after serving 14 years for murder. The plaintiff had been released after serving sixteen years for murder. The Seventh Circuit held that on appeal from a ruling that a party has committed a Batson violation (i.e., used a peremptory strike in a discriminatory manner), the court need not review the merits of the district court’s decision unless the appellant can show that the juror was actually biased (a harmless error standard). The Eighth, Ninth, and Eleventh Circuits have similarly held. The court also brushed aside the City’s complaint that it had been deprived a statutorily protected right to 3 peremptory challenges when the court denied its peremptory challenge under Batson and precluded it from exercising the challenge on another juror.
The issue before the Court was whether the denial of a peremptory challenge (as a result of an alleged Batson violation) can only be overturned if the jury was actually biased. According to the 7th Circuit, the erroneous deprivation of a statutory right (right to a preemptory challenge) is necessarily harmless unless there is also a denial of due-process – because of the service of a biased juror. Many members of the Court have indicated in the earlier oral arguments that such a standard could never be met. The case also implicates the underlying fact finding by the district court, which would be effectively unreviewable under this standard. That is a concern to local government lawyers as well as their clients since there is a taint of racial discrimination in the Batson finding.
Filed February 26, 2014 (Petition-stage brief; SCOTUS)
L.A. County Flood Control Dist v. NRDC
No. 13-901
Pro Bono Author: Shawn Hagerty & Roderick Walston
Status: Supreme Court denied certiorari on May 5, 2014
IMLA originally filed an amicus brief in this case the first time it was before the Supreme Court on September 13, 2012 and the Court agreed with IMLA’s argument that the Clean Water Act did not define discharge to include moving water from one part of the same water body to another part of that water body. On remand the Ninth Circuit still found the District liable. From a municipal water quality perspective, the key question is whether a county-wide Municipal Separate Storm Sewer System (MS4) permit may impose liability on the owner of a drainage system that receives pollutants from multiple sources without any evidence that the owner discharged pollutants to the system. The 9th Circuit held that the Flood Control District and the County could be liable without evidence of a discharge. This holding is contrary to the regulations which limit liability to a permittee’s own discharges. The holding is also contrary to the Clean Water Act because liability only attaches to discharges from a point source. If the 9th Circuit’s holding were to stand it could: (1) impose liability on any owner of an MS4 even when they don’t discharge in a way that is shown to have caused or contributed to the problem; and (2) result in additional regulations/liability for municipalities that discharge into commingled systems since the owners of the systems will seek to share/minimize their risk.
Filed April 3, 2013 (Petition-stage brief; SCOTUS)
City of LA v. Lavan
No. 12-1073
Pro Bono Author: Kira Klatchko
Status: Certiorari denied on June 24, 2013
The City of Los Angeles (“City”) conducts regular and scheduled street cleanings pursuant to ordinance § 56.11, which states that “No person shall leave or permit to remain any merchandise, baggage or any article of personal property upon any parkway or sidewalk.” While in many areas of the City, residents no doubt appreciate these sweeps, in the “Skid Row” district where the City’s highest concentration of homeless live, the City’s interest in cleaning and protecting its public ways collides with its homeless residents’ property interests. The City conducts the sweeps to address the excessive proliferation of abandoned personal property on the sidewalks in the Skid Row area. As part of this effort, the City blanketed the area with notices that property left on the sidewalks during these sweeps would be removed and disposed of.
Lavan and eight other homeless people living in the Skid Row district brought suit because on separate occasions between February 6, 2011 and March 17, 2011, during sweeps through Skid Row the City seized and summarily destroyed their personal possessions. Plaintiffs sued the City under 42 U.S.C. § 1983, claiming that the City’s practice of “summarily confiscating and destroying the unabandoned possessions of homeless persons living on Skid Row violated the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution.”
The 9th Circuit held that the plaintiffs continued to have possessory interests in their unabandoned property, and that by seizing and summarily destroying the plaintiffs’ unabandoned legal papers and personal effects, the City caused a “meaningful interference” with their possessory interests in the property.
Filed December 5, 2012 (Petition-stage Brief; SCOTUS)
Senne v. Village of Palatine
No. 12-573
Pro Bono Author: Quin M. Sorenson
Status: Petition Denied June 24, 2013
Like many municipalities, the Village of Palatine prints the intended recipient’s name, address, and other identifying information on a parking citation before affixing that citation to an illegally parked vehicle. According to the plaintiff in this putative class action, Palatine has violated a federal statute by doing so and should be ordered to pay $2,500 in damages for each and every one of the approximately 32,000 parking tickets that it has issued over a four-year period. As a result of the Seventh Circuit’s en banc decision allowing plaintiff’s case to go forward, Palatine now faces the prospect of massive damages—as much as $80 million—for conduct that the plain text of the statute in question expressly deems permissible.
Filed May 16, 2012 (Petition-stage brief; SCOTUS)
Redevelopment Authority of Montgomery v. R&J Holding
No. 11-1234
Pro Bono Author: Robert J. Tribeck
Status: SCOTUS denied cert on June 18, 2012
There is a long drawn-out history to this case, but in short, this a case about the intersection of a number of land use doctrines, including the Williamson doctrine, issue/claim preclusion, and the England reservation. For those familiar with land use law, it goes without saying that these are some of the more controversial issues in land use (for plaintiffs). However, at the end of the day, there needs to be finality to litigation. This case has already taken 15 years and cost the Authority countless dollars. Allowing two bites at the apple will only cost the Authority more time and money. The Supreme Court itself states in cases like these “we apply our normal assumption that the weighty interests in finality and comity trump the interest in giving losing litigants access to an additional appellate tribunal.” San Remo.
Filed February 10, 2012 (petition-stage brief)
City of Hugo v. Buchanan
Pro Bono Authors: Janet Spugnardi & Andrew Messer
Status: SCOTUS denied certiorari
While this case deals with a number of issues like water rights, the issue on appeal is one of standing. The City of Hugo (Oklahoma) entered into an agreement with the City of Irving (Texas) for the sale of water. This agreement was prohibited under Oklahoma law and Hugo was denied a permit to effectuate the agreement by the state water board. Hugo sued, and the lower court ruled that the City of Hugo did not have standing to sue its parent-state (political subdivision standing doctrine). IMLA, Texas Municipal League and Texas Municipal Attorneys Association jointly filed a brief in this case.
Filed February 08, 2012 (petition-stage brief)
Comite de Jornaleros v. City of Redondo Beach
Pro Bono Author: Scott Howard
Status: The Supreme Court denied certiorari
The City’s roadside solicitation law was enacted back in the 1980s because of all the traffic/safety problems associated with day laborers soliciting employment from moving cars. The law was not limited to day laborers, and barred any individual from standing on a street or highway and soliciting, or attempting to solicit employment, business, or contributions from an occupant of any motor vehicle. The definition of street included sidewalks, parkways, medians, alleys and curbs. The Ninth Circuit ruled that the City’s solicitation ordinance was unconstitutional in that although it was content neutral, it was not narrowly tailored. The Ninth Circuit decision features one of the harshest dissents we’ve read. It’s worth reading.
Filed January 03, 2012 (petition-stage brief)
Arlington (TX) v. Frame
Pro Bono Author: David Canupp
Status: Petition was denied.
The cert petition considered the following question: Does Title II of the ADA mandate that sidewalks constitute a “service, program or activity” within the meaning of Title II? This case presents an important issue for municipalities if a plaintiff comes across a cracked sidewalk or broken curb, they do not have to allege (under the 5th Circuit’s decision) that they were denied access to any particular program or service of the city. It is IMLA’s position that any city has a duty to provide an accessible route to its programs, but the route itself is not a program. To require a locality to fix each and every crack would require a municipality to devote a unbalanced percentage limited fiscal resources to fixing sidewalks.
Filed August 25, 2011 (petition-stage brief)
City of San Leandro v. Int’l Church of the Foursquare Gospel
Pro Bono Authors: Howard D. Cohen & Michael Sullivan
Status: Petition was denied
This is a RLUIPA (Religious Land Use and Institutionalized Persons Act) case. The petition asked the Supreme Court to resolve: 1. Whether cost and/or inconvenience can be sufficient for a religious landowner to prove that an adverse land use or zoning decision imposes a “substantial burden” under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2006); 2. Whether case-by-case analysis of a land use application constitutes an “individualized assessment” under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(2)(C) (2006); 3. Whether neutral, generally applicable planning principles may be a “compelling interest” of local governments under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(1)(A) (2006).
Filing Date: August 4, 2023 (Ninth Circuit)
Tucson v. City of Seattle
Pro Bono Author: Charlene Koski
The City of Seattle seeks IMLA’s amicus support in the City’s enforcement of its anti-graffiti ordinance.
Facts: In January 2021, Plaintiffs wrote political messages, some of which were critical of the Seattle Police Department (SPD), in sidewalk chalk and charcoal on “eco-block” walls that were temporarily erected by the City outside of the SPD’s East Precinct. SPD officers arrested all four Plaintiffs for violating Seattle Municipal Code 12A.08.020 (Ordinance), which stated:
- A person is guilty of property destruction if he or she:
- Intentionally damages the property of another; or
- Writes, paints, or draws any inscription, figure, or mark of any type on any public or private building or other structure or any real or personal property owned by any other person.
The Ordinance provided that it was an affirmative defense to property destruction if the actor reasonably believed that he had a lawful right to damage such property or if he had obtained the express permission of the owner or operator of the building, structure, or property.
Plaintiffs pursued First, Fourth, and Fourteenth Amendment claims under 42 U.S.C. § 1983, brought Monell claims against the City, and sought injunctive relief, alleging that the Ordinance was overbroad, vague, and had been selectively enforced against them due to their messaging, chilling their use of chalk to express their views on public sidewalks and barriers built over the public sidewalk.
Proceedings: The Federal District Court for the Western District of Washington granted the preliminary injunction, finding that the Plaintiffs were likely to succeed on the merits:
Here, the Ordinance plainly targets expressive speech in a real and substantial way that infringes on Plaintiffs’ First Amendment right to free expression. The Ordinance criminalizes “[w]riting, paint[ing], or draw[ing] any inscription, figure, or mark of any type.” SMC 12A.08.020. This appears overbroad on its face. And although the Ordinance also criminalizes “property destruction,” it equally targets speech. As such, it has a close enough nexus to expression that it poses a real and substantial threat of censorship.
The court disagreed with the City that the Ordinance was a narrowly tailored and legitimate “manner” regulation of speech:
The purported need to prevent property destruction could be accomplished without a provision criminalizing speech in public areas without permission. The Ordinance is not narrowly tailored to serve the government interest of avoiding property damage or “visual blight.” And the Ordinance provides no guidance as to how an individual might apply for or obtain “express” permission from the City to engage in sidewalk chalking.
Despite the City’s argument that it had never enforced the Ordinance in any of various trivial ways hypothesized by the Plaintiffs, the court found that the Ordinance was impermissibly vague, failing to apprise the public as to what constitutes “damage” and allowing for random and open-ended enforcement. And while the court acknowledged the City’s public interest in avoiding blight, that interest was subordinate to the value of unfettered First Amendment expression.
The City has appealed the district court result to the Ninth Circuit.
Filing Date: June 15, 2023 (Supreme Court of Idaho)
Van Wandruszka v. City of Moscow
Pro Bono Author: Rob McQuade
The city of Moscow, Idaho (City) operates a public water system. Historically, the City held property owners responsible for non-payment of water bills by tenants at their properties. But the Idaho Supreme Court held in City of Grangeville v. Haskin, 116 Idaho 535, 777 P.2d 1208 (1989), that due to lack of privity, owners had no implied obligation to pay the water bills of a tenant. Since then, the City faced pushback from property owners when trying to collect unpaid balances where tenants failed to pay and incurred increasing delinquencies.
As a solution, in February 2021 the City Council passed resolution 2021-01, requiring property owners to complete a “Moscow Utility Billing Application for Use of City Utility Services” (Application). On the Application, property owners request services at a specific address and acknowledge their legal responsibility for balances assessed there, regardless of who uses the service.
The City gave property owners more than nine months’ notice to comply, requiring Applications to be submitted by December 15, 2021; water would thereafter be shut off to all addresses for which no Application had been received, regardless of whether the subject properties were in arrears. The plaintiffs, who own their residence as well as other properties which they lease to various tenants, none of whom were in arrears, filed the Applications “under duress” on December 14, 2021.
The plaintiffs sought summary judgment to invalidate the Application program because (1) it is “unreasonable and coercive” by empowering the City to place a lien on non-paying properties; and (2) “Idaho law does not authorize the City to hold a non-user responsible for unpaid utility bills” (citing Haskin).
The City also moved for summary judgment, based on its authority to provide public utilities and implement payment mechanisms as granted by the Idaho Constitution, Idaho Code, and the City Code. The City further argued that the Applications resolve the Haskin prohibition against implied payment duties by creating property owners’ express contractual commitments.
The District Court of Latah County denied the City’s Summary Judgment motion and partially granted the property owners’ motion, limited to properties where the owner is not consuming the water:
IC §§ 50-323 and 50-1030(f) do not give the City implied power to collect from the owner for charges incurred by the tenants. As such, the City is prohibited from requiring the owners of property to enter into a contract under duress if the property owner is not the consumer of the water.
Filing Date: January 2023 (Ninth Circuit)
El Papel, LLC v. City of Seattle
Pro Bono Author: Rachel Fried
This case arises out of the State of Washington and the City of Seattle’s eviction moratoria that were enacted in response to the COVID-19 pandemic. Both moratoria prohibited evicting tenants for failure to pay rent for a period of time unless the tenant presented an imminent threat to the health or safety of neighbors or the landlord. Additionally, such unpaid rent could not be treated as a currently owing or collectable enforceable debt until the landlord and tenant were provided with an opportunity to resolve the nonpayment of rent through a rental assistance program and landlords could not collect late fees.
Plaintiffs are landlords who sued the City for violating the Contracts Clause and the Takings Clause of the U.S. Constitution. They claim that the tenants owe thousands of dollars of unpaid rent and (for one tenant) against whom, “[b]ut for the Defendants’ eviction moratoria,” they would have initiated eviction proceedings.
The district court found in favor of the City and State on both claims. In terms of the Contracts Clause claim, the district court agreed with the City and State that the moratoria did not forgive any debt obligations, instead it delayed the ability on the part of the landlords to collect the unpaid rent or evict tenants for a period of time. The district court reasoned:
Allowing defaulted tenants additional time to repay amounts due is adequately tailored to the City’s goal of preventing evictions and homelessness, as well as corresponding potential to cause a spike in the COVID-19 pandemic. And for similar reasons as discussed above in the context of the eviction moratoria, this defense does not violate the Contracts Clause, either.
In terms of their Takings claim, plaintiffs argue that the eviction restrictions constitute a physical taking “by compelling landlords to house tenants who no longer satisfy lease terms, including tenants whose leases have already expired.” The district court rejected this argument, concluding that Supreme Court precedent forecloses this argument. See Yee v. City of Escondido, 503 U.S. 519, 522 (1992). In foreclosing the physical taking argument in Yee, the Supreme Court held:
[The park owners] voluntarily rented their land to mobile homeowners…. Put bluntly, no government has required any physical invasion of petitioners’ property. [The] tenants were invited by [the owners], not forced upon them by the government….
On their face, the state and local laws at issue here merely regulate [the owners’] use of their land by regulating the relationship between landlord and tenant. This Court has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails.
Id. at 528–29 (internal citations and quotation marks omitted).
The plaintiffs argued that the Supreme Court’s recent decision in Cedar Point Nursery v. Hassid supports their arguments that the City’s actions constituted a physical taking of their property. The district court rejected this argument, concluding that Cedar Point was readily distinguishable given that the regulation in that case required the property owners to allow access to union activity by third parties, whereas in this case, the landlords had voluntarily invited the tenants to rent their property. And while the landlords temporarily lost the ability to evict the tenants, the City and State did not forgive the unpaid rent.
The issue in this case is whether the City’s eviction moratorium violated the Takings Clause or Contracts Clause of the US Constitution
Filing Date: February 21, 2023 (Fourth Circuit)
City of Huntington v. AmerisourceBergin
Pro Bono Author: Carl Cecere
Local governments around the country have sought to hold drug manufacturers, distributors, and pharmacies accountable for their role in fueling the opioid crisis, bringing claims under public nuisance laws, among other things. Most states and their local governments were included in the $26 billion settlement by the “Big Three” distributors (Amerisource Bergin, McKesson, and Cardinal Health) and J&J, and other local governments joined in subsequent settlements with the Big Three. Huntington and Cabell County, West Virginia did not join, and continued to pursue their claims. Earlier this year, Judge Faber delivered his decision in the Track Three opioid bellwether case in the Southern District of West Virginia, finding that none of the Big Three distributors bore responsibility for contributing to the opioid crisis in Huntington (case no. 3:17-01362) and Cabell County (case no. 3:17-01665). Judge Faber found insufficient evidence of wrongdoing by the distributors and held that West Virginia’s public nuisance law did not apply to an otherwise legally-manufactured product.
Huntington is now appealing that outcome to the Fourth Circuit. As indicated above, many jurisdictions have already settled their opioid cases, whether against distributors, manufacturers, or pharmacies. But numerous other cases continue, including in various state courts. The opioid epidemic has cost local governments collectively billions of dollars in seeking to remediate the public health consequences of the epidemic and has devastated whole communities. We believe this case is important to participate in, given the enormity of the epidemic and the fact that local governments are more likely to sue others for creating a public nuisance than to be sued themselves under those laws.
Filing Date: December 29, 2022 (Fifth Circuit)
Baker v. City of McKinney
Pro Bono Author: Michelle Voirin, Justin Johnson & Timothy Dunn
Vicki Baker (Baker) seeks recovery for damage caused by McKinney Texas (City) police as they attempted to arrest a criminal suspect hiding in her home with a 15-year-old female hostage. Baker’s adult daughter had answered the door, recognized the suspect, and allowed the two to enter. The daughter then left the home to call Baker; and they both summoned local police for help.
Police surrounded the home, and the suspect released the hostage. She informed them that the suspect had several guns and did not intend to come out alive. Officers followed standard procedures to compel the suspect to vacate, pushing open the front door, forcibly removing the garage door, knocking down part of the backyard fence, and firing gas canisters through windows and other areas. While the police actions were lawful and proper, they caused damage to the home. The suspect took his own life in a bedroom at some point during the police activities.
Baker filed suit to recover approximately $50,000, in the meantime making repairs to the home using homeowner’s insurance payments, donations of money and items from friends and a GoFundMe account, and some of her own money. Counsel estimates that Baker’s insurance and monetary and in-kind donations covered all but $8,000 of her costs. She sold the home to an arms-length buyer after the repairs were completed.
Baker’s suit against the City alleges only takings claims under the Fifth Amendment and under article I, § 17 of the Texas Constitution. Prior to trial, the district court denied the City’s dismissal motion and granted Baker partial summary judgment as to takings liability:
The City asks this Court to adopt what would constitute a per se rule—that destruction to private property resulting from the exercise of valid police power cannot constitute a Fifth Amendment Taking. Neither the Supreme Court nor the Fifth Circuit have directly found a taking that requires just compensation when destruction of property results from the exercise of valid police power. The City correctly points out that other circuits have foreclosed recovery under similar circumstances. See Manitowoc Cty., 635 F.3d 331; Lech, 791 F. App’x. 711; AmeriSource Corp., 525 F.3d 1149. However, both the Fifth Circuit and the Supreme Court have suggested such action could amount to a taking . . . The Court finds the Fifth Circuit and Supreme Court reasoning persuasive, particularly at this stage of litigation where it construes allegations in the light most favorable to Baker.
Baker v. City of McKinney, 4:21-CV-0176-ALM (E.D. Tex. June 22, 2022), 2022 WL 2298974.
During trial, the court allowed an un-pled § 1983 Monell claim to go the jury in addition to the takings claims and granted a motion in limine to prohibit evidence of Baker’s financial sources of repairs as violative of the “collateral source rule,” thus allowing her to recover more than just compensation.
Filing Date: November, 2022 (NY Appellate Court)
Columbus Monument Corp. v. City of Syracuse
Pro Bono Author: Erich Eiselt
In 1934, a group of Italian-Americans bestowed a Christopher Columbus statue on Syracuse, which accepted it and placed it in St. Mary’s Circle—a prominent City property. In 1990, New York State agreed to contribute funds to restore the statue, conditional on the City raising private funds and granting the State a Protective Covenant to apply the funds towards maintenance of the statue for 23 years or the useful life of the improvements, “whichever is longer.” An Italian-American organization contributed funds based on the City’s commitment to use the money to maintain the statue, augmenting contributions by the City and the State.
As time passed, objections to the Columbus statue by the Onondaga Tribe and other groups have increased. The City now wants to reconfigure the elements in St. Mary’s Circle to represent a more diverse City population and heritage, including moving the statue to a different location. To that end, in 2021, the Mayor obtained the State’s signature on a “Termination of Protective Covenant,” which the City claims abrogated its continuing responsibility to maintain the statue and further freed the City to exert its authority over the statue.
The Columbus Monument Corporation, other contributors of maintenance funds, and descendants of the original grantors of the statue, objected. They focused on specifics in the Termination agreement. The plaintiffs were successful in getting the judge to focus on that issue. He declared the Termination null and void and ordered that the statue cannot be moved by the City.
IMLA’ interest in this case was to emphasize that the City has the authority, under the government speech doctrine as articulated in Summum and its progeny, to populate St. Mary’s circle with such monuments as it deems appropriate.
In Summum, the Supreme Court defined the primacy of government speech in the context of monuments:
This case presents the question whether the Free Speech Clause of the First Amendment entitles a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected. The Court of Appeals held that the municipality was required to accept the monument because a public park is a traditional public forum. We conclude, however, that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.
Filing Date: November 25, 2022 (Fifth Circuit)
Association of Club Executives of Dallas, Inc. v. City of Dallas
Pro Bono Author: Joshua Skinner
The Dallas City Council (Council) unanimously adopted Ordinance No. 32125 (Ordinance) prohibiting sexually oriented businesses (SOBs) from operating between 2 a.m. and 6 a.m. in Dallas (City). The Ordinance cites the Council’s findings that operation of SOBs during those hours is “detrimental to public health, safety, and general welfare,” and includes data purporting to show that during those hours there is an increase in violent crime and drug and gun arrests at or near SOBs and an increased number of calls from SOBs for City EMT assistance. In support, the Council cites various studies associating SOBs with higher crime and a report from the cities of Beaumont and Amarillo showing that SOBs promote certain criminal activity and have a deleterious effect on adjacent areas.
The Ordinance also references the Dallas Police Department (DPD) task force (Task Force) created in March 2021 at the Council’s request following shootings and other violent crimes that occurred at or near SOBs. The Council had received a DPD presentation on January 5, 2022, delivering the Task Force’s conclusions and its recommendation that SOB hours of operation be reduced to decrease criminal activity, improve safety, and reduce demand on City resources. DPD had subsequently submitted to Council a “detailed analysis” listing licensed SOBs in the City and graphs displaying data related to all offenses, arrests, and calls for service at SOBs.
The day the Ordinance was adopted, four adult cabaret businesses and one adult bookstore that qualify as SOBs under the City Code, and a non-for-profit trade association whose members are SOBs and include adult bookstores, arcades, and cabarets located in the City (Plaintiffs) moved for a temporary restraining order and preliminary injunction, asserting that the Ordinance violates their First Amendment right to freedom of expression. Plaintiffs allege that the Ordinance is an unconstitutional content-based restriction of protected expression, does not withstand strict or intermediary scrutiny, and that the data and information relied on by the City in passing the Ordinance is invalid, flawed, and shoddy.
The Northern District of Texas denied the City’s motion to dismiss and granted Plaintiffs injunctive relief. The court’s primary focus was on Plaintiffs’ likelihood of success on the merits. It found in their favor, despite the City’s argument that under the longstanding tests applicable to sexually explicit expression derived in Renton, the Ordinance was a content neutral, secondary-effects based measure, applying appropriate time, manner, and place restrictions. The district court did not find it necessary to evaluate which level of scrutiny applied: “Here, the Court concludes that it need not determine as a final matter which level of scrutiny applies, because regardless of the standard under which the Ordinance is evaluated, it does not pass muster, and therefore must be enjoined.”
Despite this conclusion, the court proceeded to analyze whether strict or intermediate scrutiny would apply. In terms of strict scrutiny, it acknowledged the City’s argument contra: “Here, the City acknowledges that the Ordinance restricting SOBs is content based, but argues that under Renton, regulations addressing SOBs fall into an exception to the normal content-based approach, and are not subject to strict scrutiny.” In contrast, “Plaintiffs contend that the secondary effects doctrine no longer applies, citing the Supreme Court’s decision in Reed and the Fifth Circuit’s subsequent abrogation of at least some secondary effects doctrine cases.”
The Fifth Circuit’s “subsequent abrogation” occurred in City of Austin v. Reagan Outdoor Advertising of Austin, where the Circuit’s application of Reed to prohibit on-premise versus off-premise sign distinctions would be reversed by the Supreme Court. The district court queried the continuing viability of the secondary effects doctrine given the Fifth Circuit’s discussion of the issue in Reagan:
In footnote 3 of Reagan, the Fifth Circuit specifically identified a number of cases it was abrogating based on Reed, including four cases that had upheld ordinances relating to SOBs under the secondary effects doctrine. Id. at 703 n.3 … By abrogating these SOB cases in footnote 3 of its opinion in Reagan, the Fifth Circuit implicitly applied Reed’s holding that a content-based law is subject to strict scrutiny regardless of the government’s content-neutral justification, so as to abrogate the secondary effects doctrine in the SOB context. In doing so, however, the Fifth Circuit in Reagan did not name the secondary effects doctrine, nor expressly discuss the impact of Reed on Renton or the Supreme Court’s more recent secondary effects case, Alameda Books.
The Supreme Court reversal of Reagan did not touch on the subliminal secondary effects issues raised by the Fifth Circuit. And the district court in this case, having raised the question, merely stated that it need not decide the intermediate versus strict scrutiny question, again stating that irrespective of the standard, the Ordinance failed: “Fortunately, the Court concludes that it need not resolve the question of the continued viability of the secondary effects doctrine in the Fifth Circuit because, as discussed below, the Ordinance does not survive regardless of the scrutiny applied.”
The court concluded that even the less demanding standards of intermediate scrutiny had not been met by the City’s data—there was only a minor increase in crime in the 2 a.m. to 6 a.m. period. The court found that, in the three-year period from 2019 to 2021, when considering both violent and property crime occurring at SOBs, there was less overall crime reported during the relevant time period of 2 a.m. to 6 a.m., compared to 10 p.m. to 2 a.m. And while the data showed more reports of violent crime from 2 a.m. to 6 a.m., compared to 10 p.m. to 2 a.m. in the same 2019 to 2021 period, there were only 21 total arrests for violent crimes at SOBs from 2 a.m. to 6 a.m., compared to 18 arrests during the 10 p.m. to 2 a.m. window. Some of the data, said the court, related to locations where the SOB had ceased functioning or had never actually operated; some statistics related to crime within 500 feet of the SOB, including motels and other establishments. And the inclusion of bookstores, which had far less criminal activity than the other establishments, made the Ordinance overbroad and not in keeping with the Renton standards, in which the regulation had distinguished among various types of SOBs based on their specific secondary effects.
Therefore, the court concluded that “the City’s evidence does not fairly support its stated rationale for the Ordinance. Because the City could not reasonably believe that the evidence shows the requisite connection between the protected speech and harmful secondary effects, the Ordinance is not narrowly tailored.”
There is confusion after Reed as to whether SOB ordinances are content-based regulations of speech or content-neutral regulations of conduct. The effect of eliminating secondary-effects analysis and applying strict scrutiny to SOB ordinances would likely be to render most of their provisions unconstitutional, overturning decades of case law and severely undermining the ability of state and local governments to address the adverse secondary effects caused by such uses.
Furthermore, the district court’s second guessing of the City’s evidence to support its rationale continues a trend of making intermediate scrutiny more difficult for governments to surpass in the context of First Amendment challenges and seems to contradict the Supreme Court’s decision in Lorillard Tobacco Company v. Reilly, 522 U.S. 525 (2001). While we do not expect complete deference by courts to legislative fact-finding, under Lorillard, a local government may justify a restriction based on “reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and ‘simple common sense.’”
Filing Date: November 24, 2022 (Ninth Circuit Petition for Rehearing En Banc)
City of Grants Pass v. Johnson
Pro Bono Author: Harry Wilson, Anit Jindal & Hannah Hoffman
This case involves an extension of the Ninth Circuit’s already disastrous decision in Martin v. Boise, from several years ago involving anti-camping ordinances seeking to address the problem of homelessness.
Grants Pass is a small city in Oregon with a population of about 38,000, of whom at least fifty are homeless (though the number may be as many as 600). Regardless, the number of homeless persons outnumber the available shelter beds. The City passed several ordinances related to the regulation of sleeping outside, which taken together made it nearly impossible to sleep outside with any form of bedding or shelter on public land in the City. See GPMC 5.61.020; GPMC 5.61.030; GPMC 6.46.090.
A violation of these ordinances resulted in fines, which would escalate if left unpaid. The “park exclusion” ordinance allowed police officers to bar someone from a city park for 30 days if they received 2 more citations for violating park ordinances within one year. GPMC 6.46.350(A). If someone had received a park exclusion ordinance and was later found in a park, that could result in criminal trespass. The City amended its camping ordinance after Martin (discussed below) to make it clear that the involuntary act of sleeping without shelter in a park was not prohibited, rather what was prohibited was “camping” – i.e., sleeping with any bedding / shelter.
The City had four temporary shelters, but two were explicitly religious and required residents to attend Christian worship services. Another was a “sobering center,” which was just a place for intoxicated people to sober up and did not have beds. The fourth was a youth shelter. It was undisputed that the City did not have enough beds for its homeless population and really did not have any shelter for adults that did not wish to stay somewhere that was overtly religious.
In September 2018, a three-judge panel issued Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), holding “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” Id. at 1048. Although the decision was both novel and sweeping, the opinion did offer a modicum of comfort to local governments that they could still regulate camping on public property by way of a footnote where it stated:
Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible… So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the “universal and unavoidable consequences of being human” in the way the ordinance prescribes.
Shortly after the Martin decision was issued, three homeless individuals in Grants Pass filed a class action lawsuit on behalf of those that are “involuntarily homeless” against the City, arguing its ordinances are unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishment Clause and Excessive Fines Clause (among other arguments). The Ninth Circuit held that the district court did not abuse its discretion by certifying a class action in the case despite Martin appearing to require an individualized inquiry into whether the person was involuntarily homeless. The Ninth Circuit reasoned that the class was defined as only those that were “involuntarily homeless” and therefore, no individualized inquiry was necessary as the City did not claim to have adequate shelter for all 600 homeless individuals in Grants Pass.
The Ninth Circuit also concluded that the City’s ordinances violated the Cruel and Unusual Punishment Clause and a “local government cannot avoid this ruling by issuing civil citations that, later, become criminal offenses.” The court did not address ordinances that solely provided civil infractions. The Ninth Circuit affirmed the district court’s holding that “the anti-camping ordinances violated the Cruel and Unusual Punishment Clause to the extent they prohibited homeless persons from ‘taking necessary minimal measures to keep themselves warm and dry while sleeping when there are no alternative forms of shelter available.’”
The dissent points out that the class certification was inappropriate under Martin’s requirement for an individualized inquiry into whether adequate shelter was available to the homeless person. Per the dissent:
the mere fact that a city’s shelters are full does not by itself establish, without more, that any particular person who is sleeping in public does “not have a single place where [he or she] can lawfully be.” Id. The logic of Martin, and of the opinions in Powell on which it is based, requires an assessment of a person’s individual situation before it can be said that the Eighth Amendment would be violated by applying a particular provision against that person… Under Martin, the answer to the question whether the City’s enforcement of each of the anti-camping ordinances violates the Eighth Amendment turns on the individual circumstances of each person to whom the ordinance is being applied on a given occasion. That question is simply not one that can be resolved, on a common basis, “in one stroke.”
Filing Date: October 24, 2022 (Supreme Court of Nevada)
180 Land Co., LLC v. City of Las Vegas
Pro Bono Author: Steve Silva
This case involves a $35,000,000 judgment in an inverse condemnation case against the City of Las Vegas, which threatens to upend local governments’ regulatory land use authority in the State.
In 1990 the City approved a 1,539 acre planned development known as the Peccole Ranch Master Plan (PRMP) on the condition that the developer set aside more than 200 acres for open space. The developer chose to use the open space for a 211-acre golf course that later expanded to 250 acres. In 1992, the City approved a new General Plan that designated the residential portion of the remaining portion of the PRMP as R-PD7 (residential planned development) and the open space as PR-OS. PR-OS does not permit housing. The City repeatedly confirmed the PR-OS designation in subsequent ordinances approving updates to the General Plan, most recently in 2018. The City Council would be required to exercise its discretion to change the PR-OS designation to permit construction of housing.
In 2015, the original developer of the PRMP sold the golf course to a new developer (the “Developer”) for $4.5 million. The Developer shut down the golf course and segmented the 250 acres into 4 development sites. In 2017, the City approved the Developer’s application to build 435 luxury housing units on a 17-Acre portion of the original golf course. However, the City denied the Developer’s application to develop 61 units on the 35-Acre portion of the golf course. The City never ruled on the Developer’s applications for the other two parcels because the application was incomplete.
The Developer sued in 4 separate lawsuits, one for each parcel, demanding $386 million in damages and claiming an absolute right to build residential units on the property because the zoning ordinance permits residential use. The Developer argues that the zoning ordinance which permits residential use trumps the City’s General Plan, which had designated the property at issue as open space. NRS 278.250 provides that “zoning regulations must be adopted in accordance with the master plan for land use…”
At issue in this case is the 35-Acre parcel. In this case, the Nevada district court concluded that the City was liable for a regulatory taking, agreeing with the Developer’s arguments that because housing is a permitted use under the zoning ordinance, the City violated the Takings Clause by denying the use, notwithstanding the General Plan to the contrary. The district court concluded that zoning “trumps” a General Plan. The court concluded there was no market to sell the property and that due to the government’s actions, the value of the property was zero.
Filing Date: October 5, 2022 (Ninth Circuit)
Kirola v. City & County of San Francisco
Pro Bono Author: Erin Bernstein
Kirola, a mobility-impaired individual, brought a class action lawsuit against San Francisco, alleging the City discriminates against mobility-impaired persons by failing to eliminate access barriers or ensure accessibility to the City’s libraries, swimming pools, and parks, and to public rights-of-way such as sidewalks, curb ramps, and crosswalks in violation of the ADA and related state civil rights statues. The district court certified the class and the case proceeded to a bench trial.
At trial, the City presented detailed evidence of its comprehensive efforts to ensure that disabled persons have meaningful access to its services and programs consistent with the ADA and state law through both proactive and reactive measures – i.e., undertaking significant accessibility planning across numerous City departments and proactively seeking input from the disability community in the course of such planning, while also responding to requests and complaints from the public through a grievance procedure. In contrast, Kirola testified only to a very limited number of access barriers she encountered within the City including: a limited number of cracked sidewalks or missing curb ramps (that did not necessarily require her to alter her route); encountering step stools in aisles at the public library allegedly impeding her access to the facility; a steep slope at the entrance to a city park, making it difficult for her to enter that particular park; and that some of the city’s pools did not have accessibility features, though she did testify that she regularly swam at multiple city pools, including the one closest to her house.
The case went up to the Ninth Circuit which affirmed the district court’s rejection of the plaintiff’s program access claims which apply to existing facilities. However, it remanded the case back to the district court on the narrower issue to reevaluate the extent of noncompliance with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG), which provides that the alteration of facilities commenced after January 26, 1992 should to the maximum extent feasible be altered in a manner that makes the facility accessible/usable to individuals with disabilities. The Ninth Circuit also remanded to the district court to determine if injunctive relief should be granted to the class of plaintiffs.
After the City’s motion for judgment as a matter of law, the district court found in favor of the City. The district court did find a few scattered violations of the ADAAG (an inaccessible route to a playground, a missing grab bar in a restroom at Golden Gate Park, and a couple of non-compliant features in certain restrooms in libraries). However, the court concluded that the plaintiff never personally encountered any of these violations and therefore could not show she was injured for the purposes of seeking class-wide injunctive relief. Even if she had, the court concluded that she did not demonstrate the “violations are widespread or ‘are attributable to policies or practices pervading the whole system.’” Instead, the court concluded the “City has implemented a robust, multi-faceted infrastructure to access the needs of its disabled, including the mobility-impaired population.” The court emphasized the violations it found should be “considered in context” given that there are “hundreds, if not thousands, or measurements specified in the ADAAG that govern restrooms and buildings” and just because the court had found a few ADAAG violations at three facilities does not support a finding that the violations are pervasive or systemic.
The plaintiff, now appellant, is asking the court to hold that a municipality can violate Title II of the ADA for every minor accessibility issue even where the city, like San Francisco, has gone to extraordinary lengths to provide accessible services to its disabled community members. If San Francisco violated Title II of the ADA it would seem almost no municipality could escape liability because there are always going to be sidewalks that need repairing or funding issues that prevent every single community building from immediately being brought strictly up to standards set forth in the ADAAG.
Filing Date: September 30, 2022 (Supreme Court of Pennsylvania)
Crawford v. Commonwealth of Pennsylvania
Pro Bono Author: Jared Make & Robert Toland II
The Pennsylvania Firearms Act, 18 Pa.C.S. §6120(a), states “No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.” Citizens of Philadelphia and the City sued the state, challenging the validity of the Firearms Act. Philadelphia argues that the Firearms Act restricts its ability to protect the health and safety of its citizens as it has been interpreted to preempt enforcement of nearly all the City’s firearm-related ordinances.
The City alleges that but for the preemptive reach of the Firearms Act, it would pass safety ordinances that would mitigate gun violence for its residents such as ordinances that would permit extreme risk protection orders, limit purchases of firearms to once per month, and impose permit requirements on potential purchasers with stricter background check requirements. The City argues, among other things, that the Commonwealth has delegated a portion of its obligation to preserve the safety and welfare of all citizens to the City and the Firearms Act prevents Philadelphia from fulfilling its obligation to do so.
In a 2-1-2 decision, a five-judge panel of the Commonwealth Court of Pennsylvania dismissed the case. In a plurality opinion, the Court claimed that dismissing the case was required under precedent from previous cases that did not find Pennsylvania Firearm Preemption Laws to be unconstitutional. A concurring opinion noted that the Court felt constrained to follow Pennsylvania Supreme Court precedent (Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996)) finding Pennsylvania’s Firearm Preemption Laws to be constitutional, but recognized that “local conditions may well justify more severe restrictions than are necessary statewide.” The opinion also stated that the petitioners raised constitutional arguments that may allow the Pennsylvania Supreme Court to reconsider precedent on firearm preemption. Two judges joined a dissenting opinion. “Pennsylvania’s municipalities have an important duty to protect the health, welfare, and safety of their citizens,” the opinion reads. “In my view, protecting citizens against the threat of gun violence lies at the heart of this duty.”
Filing Date: August 22, 2022 (Eleventh Circuit)
City of South Miami v. DeSantis
Pro Bono Author: Raphael Rajendra & Susan Greenberg
In City of South Miami v. DeSantis, the City of South Miami and several immigrants’ rights organizations challenged Florida’s SB 168 (2019). Among other things, SB 168 affirmatively requires local governments to use “best efforts to support the enforcement of federal immigration law” and it prohibits local governments from adopting sanctuary policies of any kind. The law also affirmatively requires local governments to comply with immigration detainer requests and prohibits them from adopting policies prohibiting sharing information with ICE about the impending release of detainees, or participating in 287(g) agreements (under which DHS deputizes local law enforcement officers to directly enforce immigration laws).
After a six-day bench trial, the district court agreed with the plaintiffs that the Florida Legislature enacted these portions of SB 168 with discriminatory motive, that they had foreseeable disproportionate impacts on racial and ethnic minorities, and that the provisions therefore violate the Equal Protection Clause. See 561 F.Supp.3d 1211 (S.D. Fla. 2021). The case is now on appeal to the Eleventh Circuit.
A coalition of local governments plans to file an amicus brief emphasizing two points: (1) the importance of reserving to local governments the authority to determine whether to adopt sanctuary jurisdiction policies and practices, and (2) the reasons why local jurisdictions enact sanctuary jurisdiction policies. This point will focus on the fact that local governments know more intimately than state or federal officials the benefits of sanctuary policies (if they choose to adopt them) as they are in the best position to know their law enforcement efforts; resources and capacity; and their ability to protect the health and welfare of all residents, including immigrant communities.
IMLA filed amicus briefs in the Byrne Jag litigation involving the federal government’s withholding of grant money from local governments over so-called sanctuary policies. IMLA’s position in these cases has been that local governments, not the federal government or states, are in the best position to know whether they should participate in immigration enforcement depending on local conditions.
In this case, Florida is preempting local governments’ ability to have this autonomy and has created an unfunded mandate for local governments to assist federal immigration enforcement. This issue is not illusory. Miami-Dade County alone spent $12.5 million in 2017 honoring immigration detainers. Local governments have also been sued for violating the Fourth Amendment when they honor ICE detainers but do not still have probable cause to detain someone criminally. States should not put local governments in the position of having to choose between potentially violating someone’s Fourth Amendment rights and violating state law.
Filing Date: July 28, 2022 (Eleventh Circuit)
Myrick v. City of Hoover
Pro Bono Author: Robbie Alexander Hyde
The plaintiffs in this case are 4 police officers who work for the City of Hoover, Alabama. They also serve in the United States armed forces as reserve officers. Throughout their employment with the City, they have been called to military duty and taken military leave from their jobs. Under the City’s policies, they are afforded 168 hours of military leave and remain in active status for those hours, including for the purposes of accruing benefits. If their leave is longer than 168 hours, they request a leave of absence and go into unpaid status but remain eligible for their jobs when they return. They do not accrue employee benefits while they are in unpaid status. The plaintiffs allege that their employment benefits should have accrued while they were on leave and under non-pay status because military leave should be treated as comparable to administrative leave for the purposes of USERRA. If, as they allege, administrative leave were applicable they would be entitled to earn annual leave, sick leave and holiday leave all of which have monetary value associated with the type of leave. The city asserts that the terms of its administrative leave policy differentiates it significantly and substantially to be used as a comparable leave for USERRA purposes.
USERRA provides that a person who is a member of a uniformed service “shall not be denied . . . any benefit of employment by an employer on the basis of that membership . . . performance of service . . . or obligation.” 38 U.S.C. § 4311(a). While away from their civilian jobs, servicemembers are “entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service.” 38 U.S.C. § 4316(b)(1)(B); see 20 C.F.R. § 1002.150(a).
The officers argue that administrative leave and military leave are comparable. Courts look to 3 factors to determine if leave is comparable for the purposes of benefits under USERRA: duration, control, and the purpose of the leave, with duration being the “most significant factor to consider.”
Under the City’s policies, an employee is eligible for paid administrative leave for inclement weather, jury duty, voting, court hearings, and participation in job-related training. These types of leave are typically for shorter duration and on average, short periods of military leave for training last longer than short periods of administrative leave by a 3:1 margin. Paid administrative leave also is available under the City’s policy when the City removes an employee from service during an internal investigation. This type of leave was rare, but in the last 30 years, the City placed 3 employees on administrative leave pending an internal investigation. Like other local governments, this form of leave is designed to protect against claims of due process violation as a local government investigates claims against employees. The average length of paid administrative leave for an investigation is 16 months and the court found the average deployed military leave is generally comparable. (Though one of the officers was deployed for nearly 5 years during different tours).
The court found that the duration factor favored the city. However, the court found that the purpose and control factors both favored the employees and ultimately found in favor of the employees that the administrative leave was comparable to the military leave. The City argued that due process considerations compelled it to provide paid administrative leave to employees under investigation, and the court found that purpose was similar to military leave as both enable the employer to meet its obligations under law. Finally, the court rejected the City’s arguments that the control factor favored the City because its policies require those on administrative leave to be available to work and report to the Mayor whereas officers on military leave are unavailable to work / report to the Mayor. The court concluded that officers voluntarily participate in the military reserves and similarly, officers “voluntarily place themselves in a position in which they will have to take administrative leave if their wrongdoing is discovered.” (Of course such a finding ignores the fact that some employees who are investigated for misconduct are innocent).
The court found that on balance, even though duration of the leave is the most important factor and favored the City, the duration wasn’t so dissimilar to tip the scales in favor of the City.
Many local governments have policies whereby they place employees on paid administrative leave pending the outcome of an investigation. If such administrative leaves are deemed comparable for the purposes of USERRA, local governments will be responsible for significant payments to employees on military leave.
Filing Date: April 11, 2022 (Sixth Circuit)
Knight v. Metropolitan Government of Nashville & Davidson County
No. 21-6179
Pro Bono Author: Richard Coglianese
Nashville passed a “Sidewalk Ordinance” which applies to the construction of all new single-family and two-family homes and to the substantial renovation/expansion of such homes within a certain district. Under the ordinance, any owner pursing construction outlined in the ordinance would need to agree to construct a city sidewalk on the owner’s property frontage in order to receive a building permit unless they receive a waiver or unless under “unique situations” they make an “in-lieu contribution” to the City’s pedestrian benefit fund. The “in-lieu-fee” is based on $186 per linear foot and capped at no more than 3% of the total construction value of the permit. The ordinance also requires the dedication of a public easement for the sidewalk (regardless of whether it is built or not).
When the plaintiffs sought to build a new single-family home, as a condition of doing so, Nashville required them to either construct a sidewalk or pay an in-lieu fee (ranging between $7,600 and $9,000) to get their building permit. The Zoning Administrator and Board of Zoning Appeals denied the plaintiff’s request for a waiver. The plaintiff refused to grant the easement for the sidewalk to the City and the building permit expired and they were unable to build the new homes.
The plaintiffs sued, claiming the ordinance violated the Takings Clause. They argued that the ordinance amounted to an unconstitutional condition under Nollan while the City argued the court should analyze the ordinance under Penn Central as a regulatory taking. The district court framed the question as follows: “whether a legislative, generally applicable development condition that applies to all new development within a certain geographic zone, as opposed to an adjudicative land-use exaction, should be addressed under the Nollan/Dolan framework.” The district court concluded that the Nollan/Dolan test did not apply to legislative land use ordinances and instead analyzed the issue under Penn Central as a regulatory taking. The court reasoned that the discretionary / ad hoc nature of the individualized decisions in Nollan and Dolan were key distinguishing factors from the generally applicable legislation in question. Under Penn Central, the court concluded that no regulatory taking had occurred, and the plaintiffs were not entitled to damages.
The district court notes that this will be a case of first impression in the Sixth Circuit as to whether the Nollan/Dolan framework applies to generally applicable legislation.
Filed March 16, 2022 (Supreme Court of Pennsylvania – Petition for Allocatur)
City of Philadelphia v. Armstrong
No. 81 EAL 2022
Pro Bono Author: Marissa Roy
Philadelphia Code §10-838a imposes a fine on individuals who fail to report a lost or stolen firearm within 24 hours after the theft/loss is discovered. The City filed a complaint alleging Rashad Armstrong failed to report a firearm missing or stolen, in violation of the ordinance. Armstrong admitted in his criminal sentencing to being a straw purchaser of guns on six different occasions (which is why he did not report the guns lost/stolen) and pled guilty to various firearm violations under state and federal law.
With regard to the City’s ordinance in this case, however, Armstrong argues the ordinance is preempted by 18 Pa.C.S. §6120(a), which states “No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.”
Philadelphia argues that Section 6120(a) only preempts “municipal laws that regulate the lawful ownership, possession, transfer, or transportation of firearms, but does not preempt municipal laws that regulate the unlawful ownership, possession, transfer, or transportation of firearms.” The City also argues that State law does not preempt the ordinance because it does not directly concern the ownership, possession, transfer, or transportation of firearms. The City also argues that the balance of harms tips in its favor given the public health and safety implications of the increase in gun violence in the City.
By way of background, in Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996), the Supreme Court of Pennsylvania concluded the assault weapon bans by Philadelphia and Pittsburgh were preempted by Section 6120(a). The intermediate appellate court in this case interpreted Ortiz to mean that “the regulation of firearms is an area where legislative activity is vested singularly and absolutely in the General Assembly of the Commonwealth.” The court then concluded that the Ordinance at issue in this case was therefore preempted by Section 6120(a).
One of the judges on the panel concurred in the decision, indicating that the court is bound by Ortiz but she believes the Supreme Court of Pennsylvania should reconsider the case to allow for local restrictions which are narrowly tailored to local necessities.
Members may disagree on the issue of gun restrictions, and we do not take a position on the policy questions involved in this case. But we should all agree that local governments are in the best position to know what the local conditions and issues are that must be regulated. Protecting local governments from sweeping preemption legislation is central to IMLA’s advocacy. Philadelphia is a home rule charter city and as such, it has broad authority to regulate its own affairs. IMLA’s amicus brief in this case focused on supporting efforts to strengthen home rule and prevent sweeping preemption of local authority.
Filed March 14, 2022 (Fifth Circuit)
Davis v. Gavin
No. 21-30694
Pro Bono Author: Robin Cross
Here, the Parish of Caddo, Louisiana (Parish) created Caddo Parish Sewerage District No. 2 (District) which, under Louisiana law, constituted a political subdivision of the state and had all the rights of those subdivisions, including the authority to incur debt, issue bonds, and to levy taxes and assessments.
Rebecca Davis, an employee of the District, brought a claim against her supervisor, James Gavin, for sexual harassment, discrimination, retaliation and other counts under Title VII, naming both the District and the Parish as “employer.” One argument she advanced was the “single integrated enterprise” test, which has been applied in a wide variety of contexts including Title VII, ADA, FMLA and others, to aggregate the number of employees and/or revenues from two or more related entities to meet minimum applicability thresholds for those statutes. She also argued that the District was acting as the agent of the Parish.
Under Title VII, for an employer to be considered a “single, integrated enterprise” with another employer, the plaintiff must show: 1) interrelation of operations, 2) centralized control of labor relations, 3) common management, and 4) common ownership or financial control. However, in the Fifth Circuit, this test is not applicable to governmental subdivisions and only applies to separate private corporations.
In this case, the Western District of Louisiana granted the Parish’s motion for summary judgment, finding that (1) on the basis of two Louisiana precedents and the plain language of the relevant Louisiana statute, the Parish and the Districts are separate legal entities; (2) the single integrated enterprise test is not applicable to governmental entities under the Fifth Circuit’s longstanding decision in Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983); and (3) the Parish did not exert any influence over the District’s employment practices, meaning no agency relationship existed for purposes of Title VII as interpreted in the Fifth Circuit.
Davis is appealing to the Fifth Circuit and while we do not yet know what her arguments will be, she will likely raise several points argued below, including an Eighth Circuit decision, Owens v. Rush, 636 F.2d 283 (8th Cir. 1980), which found a Sheriff to be an agent of the county. More significant may be the plaintiff’s argument that, due to inclusion of the District as a “component unit” within the Parish Commission’s financial statements, an agency—or other relationship sufficient to constitute joint employer status—has been created.
Filed February 9, 2022 (Second Circuit Petition for Rehearing En Banc)
Grant v. Lockett
No. 19-469
Pro Bono Author: Amanda Karras, Erich Eiselt, & Deanna Shahnami
Police were called to the Grant home on a domestic disturbance call. When they responded, they found the husband in an agitated state and asked him to go outside. They sought to detain him for safety reasons and for violating NY Penal Code involving domestic disturbances and disorderly conduct and a fight broke out between the husband, who is much larger, and one of the officers. The police officer struck him several times with his hand. A second officer came over during the struggle and hit the husband with a knee strike and head lock. They were then able to subdue him and got him medical attention for a broken nose and concussion.
The husband and wife both sued the police officers and the city, claiming that when the officers arrived the situation was entirely under control and that they told the officers they no longer needed their services, but the officers nevertheless entered their home without permission and proceeded to arrest the husband without probable cause given that the domestic situation was, according to the plaintiffs, entirely under control by the time they arrived. They claim the use of force was entirely unprovoked whereas the officers claim Mr. Grant initiated the physical altercation. The plaintiffs brought claims under Section 1983 for false imprisonment and excessive force as well as claims against the City under Monell. On the Monell claim, the plaintiffs allege that the City’s deliberate indifference to civil complaints of police brutality has resulted in the customary use of excessive force by its police officers, and, as a proximate result of such policy, they suffered injuries.
The plaintiffs introduced evidence at trial from a Citizen Review Board (CRB), which contained information about hundreds of complaints against officers over a multi-year period and the recommendations by the CRB as to discipline, as well as the police department’s actual action taken against each officer. The plaintiffs argued that the CRB report demonstrated a pattern of excessive force that went undisciplined which created a climate whereby officers felt empowered to act with impunity. The district court also allowed the plaintiffs to introduce evidence from the CRB about this incident, which included the CRB’s findings that these officers had committed excessive force, did not have probable cause to arrest, and were untruthful. The officers did not testify at the CRB proceedings, which is the usual course for these proceedings given that the CRB does not put those that testify under oath, does not allow cross-examination, does not create a transcript of the proceedings, and they are not appealable. The CRB uses a “scintilla of the evidence” standard.
Additionally, the district court allowed into evidence a letter from the District Attorney indicating that there was no lawful basis for the arrest. The City sought to exclude this evidence and also sought to bifurcate the Monell claim from the claims against the officers given the prejudicial CRB evidence involved in the Monell claim, but the district court denied these motions. The district court also refused to decide the legal issues of qualified immunity or send special interrogatories to the jury on qualified immunity and instead ultimately allowed the jury to decide the issue of qualified immunity.
A jury returned a verdict for the plaintiffs for nearly 2 million dollars not including attorney’s fees.
IMLA filed an amicus brief at the Second Circuit, arguing the failure to bifurcate the Monell claims from the claims against the individual officers was an abuse of discretion given the highly prejudicial CRB evidence introduced at trial in the Monell case.
The Second Circuit found in favor of the appellee / plaintiff and against the officers. The court concluded that the district court made the following errors: 1) allowing the CRB findings that these officers had been untruthful, had committed excessive force, and did not have probable cause to arrest into evidence; 2) allowing into evidence the DA letter and testimony finding that the arrest was unlawful; 3) allowing the jury to consider the ultimate legal issue of qualified immunity. However, the Second Circuit considered these errors to all be harmless. The Second Circuit did not find the district court abused its discretion in failing to bifurcate the Monell claim from the claim against the officers.
IMLA again filed an amicus brief in support of the City and officers but the Second Circuit denied the officers’ petition for rehearing.
Filed February 4, 2022 (Ninth Circuit)
Yim v. Seattle
No. 21-35567
Pro Bono Author: Victoria Wong
Seattle enacted the Fair Chance Housing Ordinance, which prohibits landlords from asking anyone about prospective or current tenants’ criminal or arrest history and from taking adverse action against them based on that information. Seattle Municipal Code § 14.09 et seq., “Adverse action” is defined as refusing to rent to the person, evicting the person, or charging higher rent. S.M.C. §14.09.010.
A group of landlords challenged the ordinance. They argue the adverse action requirement violates their substantive due process rights by depriving them of the ability of their “right to rent their property to whom they choose, at a price they choose, subject to reasonable anti-discrimination measures.” The landlord group also argues that the inquiry provision violates their free speech rights.
The district court granted the City’s summary judgment motion. The landlords argued that the ordinance amounts to an unconstitutional Taking under the Fourteenth Amendment because it prevents them from exercising their “fundamental right to exclude individuals” from their property, citing to the Supreme Court’s recent decision in Cedar Point Nursery v. Hassid. The court rejected these arguments, concluding that the City’s reasons for enacting the ordinance were legitimate and that it directly advances those legitimate purposes.
Moving to Free Speech, with regard to current tenants, the court concluded the landlords lacked Article III standing because they failed to show or even allege that they had ever asked a current tenant about his/her criminal history in the past or intended to do so in the future. As to future tenants, the parties argued over what standard should govern the First Amendment analysis. The court determined the ordinance was content based, but that it regulated commercial speech and therefore applied intermediate scrutiny to the analysis. The court reasoned that “covers—a landlord specifying the background check he or she wishes to purchase—is quintessential commercial speech. It boils down to the landlord asking, ‘Can I purchase a background report for this particular applicant?’”
The court then concluded that the ordinance was constitutional under the intermediate scrutiny analysis. According to the court, the ordinance advanced two interests: “reducing barriers to housing faced by people with criminal records…and lessening the use of criminal history as a proxy to discriminate against people of color disproportionately represented in the criminal justice system.” The court held that the ordinance is as “reasonable means of achieving the City’s objectives and does not burden substantially more speech than is necessary to achieve them.” The court rejected the landlords’ arguments that the evidence merely demonstrated correlation, not causation, explaining that the Supreme Court in City of Los Angeles v. Alameda Books has held that a government “is not required to ‘prove that its theory is the only one that can plausibly explain the data.’”
Filed December 15, 2021 (Fifth Circuit)
Texas v. United States
No. 21-40680
Pro Bono Author: Mike Dundas
In 2012, then President Obama adopted the Deferred Action for Childhood Arrivals program (DACA) to postpone deportation of undocumented immigrants if they were brought to the United States as children and met certain conditions. DACA also allowed them to obtain work permits (through a separate regulatory scheme), social security numbers, pay taxes, and become part of the mainstream economy. The Trump administration rescinded DACA in 2017 and several lawsuits challenged that rescission on APA grounds. The Supreme court ultimately held that the decision to rescind DACA was arbitrary and capricious under the APA, but did not rule on the question of the legality of DACA itself.
This litigation involves a suit by the State of Texas and several other states, challenging the legality of the DACA program (rather than the process of rescission as in the past suit). The district court permanently enjoined DACA, finding it unlawful and vacating the 2012 DACA Memo.
IMLA joined an amicus brief along with 55+ local governments in the DACA litigation, which is currently pending in the Fifth Circuit. IMLA’s amicus brief focused on the fact that DACA recipients have made local government communities more prosperous and safer and that rescinding DACA would negatively impact the Amici / local governments’ communities that have relied on DACA.
Filed October __, 2021 (Ninth Circuit)
Potter v. City of Lacey
No. 21-35259
Pro Bono Author: Greg Wong
The Plaintiff began living in his vehicle (which had a trailer attached to it) in 2018. At first, he moved around parking lots, but after being unable to find a consistent place to park his vehicle, he began parking it at the City Hall parking lot, along with about two dozen other people residing in their vehicles.
In September 2019, the Lacey City Council passed an ordinance, which prohibits parking recreational vehicles / mobile homes / trailers, etc. on public rights of way or publicly owned parking lots for more than four hours, unless they have received a permit. LMC 10.14.020. Under the relevant parking and procedures in the City, an individual can obtain a vehicle permit from the police department to park a recreational vehicle for longer than LMC 10.14.020 provides for if the owner of the vehicle is actively engaged with social services, has a valid government ID, insurance, and vehicle registration. LMC 10.14.045.
On September 27, the Lacey police told the Plaintiff he needed to move his vehicle by the 30th or he would be ticketed. He did not move his vehicle and on the 30th, the police returned and told him that he needed to move his vehicle, or it would be impounded. The following day, the police returned with a tow truck, at which point the Plaintiff did remove his vehicle because he did not want it towed. Since that time, the Plaintiff indicates he has been unable to find a place to stay consistently. The Plaintiff did not apply for a permit under LMC 10.14.045 because he says he believed it would be futile given that he had an outstanding warrant. However, the ordinance does not require the police department to deny a permit due to an outstanding warrant (though it provides discretion to do so).
The Plaintiff sued, alleging the City’s parking ordinances violate various constitutional provisions. As relevant for IMLA’s purposes, the Plaintiff alleges that LMC 10.14.020 violates the Eighth Amendment’s prohibition against cruel and unusual punishment and that the $35 fine and possibility of impoundment was an excessive fine under the Eighth Amendment.
The district court held that neither the $35 fine nor the possible vehicle impoundment violates the Excessive Fines Clause of the Eighth Amendment, concluding the fine was not grossly disproportionate to the offense. The court reasoned that even though a parking violation is “minor,” local governments still have an interest in the regulation of parking and the $35 fine bore “some relationship to the gravity of the offense.” Additionally, because the penalties associated with the violation of the ordinance were not criminal in nature, the court reasoned the Eighth Amendment’s Cruel and Unusual Punishments Clause did not apply.
Filed October __, 2021 (Sixth Circuit)
Novak v. City of Parma
No. 21-3290
Pro Bono Author: Philip Hartmann
The Plaintiff created a false Facebook page mimicking the official Parma Police page. The fake page had the same name, cover photo, and profile picture. The Plaintiff claimed it was a parody and he used it to announce things like the police were criminalizing homelessness or that they were prioritizing a search for an African American loitering suspect over an armed White robbery suspect, as well as other controversial postings that his roommate said were intended to “mess with people.” On the official page, the Captain of the Parma police notified the public that the other page was fake, but the Plaintiff posted the exact same message on his page. The Captain also appeared on a local TV show to warn the public about the fake page.
The page was viewed over 50,000 times and resulted in 11 calls to the police department to alert the department to the posts and verify that they were not real. The Plaintiff took the page down after 12 hours.
The next day, Detective Connor was assigned to investigate the page. Detective Connor consulted with the Law Director for the City and together, they reviewed criminal statutes and concluded that the person who posted the page may have violated Ohio Rev. Code §2909.04(B) which prohibits “knowingly using a computer…to impair the functions of any police…operations.” Detective Connor then sought a search warrant for the Plaintiff’s IP address from Facebook, which he obtained. The next day, he obtained another search warrant from a municipal judge to search Facebooks records related to the deleted page. Next, Detective Connor sought an arrest warrant for the Plaintiff, which was granted based on a violation of the disrupting public services statute. Detective Connor sought yet another warrant, now to search the Plaintiff’s apartment, and this warrant was also granted.
The assistant prosecutor brought charges and a grand jury indicted the Plaintiff. Ultimately, the Plaintiff was acquitted, and he thereafter sued under Section 1983 for a First Amendment violation (among other things).
The district court concluded that the officers had probable cause to arrest the Plaintiff. Accordingly, the court held they were entitled to qualified immunity because “the Supreme Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause.” The court reasoned that even if the Facebook page was protected under the First Amendment as a parody of the police, that did not change the fact that the defendant’s had probable cause to investigate him and arrest him.
The issue in this case is whether the officers are entitled to qualified immunity based on their arrest of the Plaintiff, even if the Plaintiff did engage in protected First Amendment activity, where the arrest was supported by probable cause, relied on by legal advice, and for which they sought several warrants.
Filed October 28, 2021 (Ninth Circuit Petition for Rehearing)
Garcia v. City of Los Angeles PFREB
No. 20-55522
Pro Bono Author: Theane Evangelis
Status: The petition was denied.
Los Angeles passed an ordinance which limits the storage of personal property in public areas. The ordinance allows the City to remove and discard certain “Bulky Items” which are not designed to be used as shelters. “Bulky Item” is defined as an item which is too large to fit in a 60-gallon container but exempts tents, bicycles, walkers, crutches, and wheelchairs. The ordinance contains a severability provision which “declares that [the City Council] would have adopted this section, and each and every subsection, sentence, clause and phrase thereof, not declared invalid or unconstitutional, without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.” According to the dissent, the City has used this ordinance to dispose of everything form jacuzzis, tubs, and sofas, to boats and automobile parts that were stored on public property.
A group of homeless individuals who have had their personal property destroyed pursuant to the ordinance sued, arguing the ordinance violated the Fourth and Fourteenth Amendments. The Ninth Circuit concluded that Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012), which upheld a preliminary injunction that prohibited Los Angeles from summarily destroying homeless individuals’ publicly stored personal property (regardless of size) was “strikingly similar” and that the ordinance therefore violated the Fourth Amendment under Lavan.
The City argued that the destruction provision of the ordinance was severable from the removal provision. Although recognizing that California law (which applies to questions of severability) “normally calls for sustaining the valid part of the enactment” where there is the presence of a severability clause, the Ninth Circuit, over the dissent of Judge Bennett, nevertheless found the ordinance not severable and upheld the district court’s grant of a preliminary injunction prohibiting the enforcement of the ordinance.
The issue in this case is whether the destruction provision of LA’s ordinance is severable from the removal provision and if so, whether the removal of Bulky Items violates the Constitution.
Filed September 3, 2021 (First Circuit)
State of Rhode Island v. Shell Oil Products Company, LLC, et. al
No. 19-1818
Filed August 26, 2021 (Eighth Circuit)
Minnesota v. American Petroleum Institute
No. 21-1752
Pro Bono Author: Robert Peck
Several cities, counties, and states have sued major oil companies for damages related to climate change and resulting resiliency measures that the cities and counties have had to undertake. These cases involve federalism and preemption principles, and the decisions implicate a local governments ability to bring suit under state nuisance laws broadly. IMLA has previously filed amicus briefs in support of New York, Oakland, San Francisco, San Mateo County, Baltimore, Boulder, and the state of Rhode Island in the First, Second, Fourth, Ninth, and Tenth Circuits in these cases.
The only difference in these cases from the prior ones substantively is that they come after the Supreme Court issued its decision in the Baltimore case which allowed the companies to appeal a remand order on all grounds of removal, not just federal officer removal. In this case, when a remand order was issued, the companies appealed all grounds, but they appear to be relying heavily on a claim that state public nuisance laws are really a stand-in for federal common law. Thus, further implicating our federalism concerns.
A full description of the issues involved in these cases can be found in this document under the case heading BP P.L.C. v. Mayor and City Council of Baltimore.
Filed August 26, 2021 (Ninth Circuit Petition for Rehearing)
Valenzuela v. City of Anaheim
No. 20-55372
Pro Bono Author: Steven Renick
The underlying facts of this case are largely irrelevant for our purposes as we did not file a brief on qualified immunity. As relevant for our purposes, in July 2016, two officers ended up each applying a carotid hold to a suspect whom they sought to arrest. During the attempted arrest, he offered significant resistance, would not submit to arrest, and ran away from them at one point. After the second carotid hold, the suspect, Mr. Valenzuela, lost consciousness. The officers performed CPR and he was transported to a hospital, but he died 8 days later. It was disputed how long the holds were applied and whether they were in fact carotid holds (the plaintiffs claim they were improperly applied and amounted to choke holds).
The Anaheim police department had a policy allowing for the use of carotid holds in instances of non-deadly force (within certain parameters). The California Commission on Peace Officer Standards and Training offered mandatory training on the carotid hold for all California police officers at the time of the events in this case and they were trained on it as a non-lethal force restraint. After the facts of this case took place, the governor, in June 2020, ordered that law enforcement cease being trained on the use of the carotid hold.
Mr. Valenzuela’s estate filed suit against the officers for excessive force and wrongful death. They also sued the City based on an alleged unlawful policy and under a failure to train claim. The jury found that the officers had used excessive force against Mr. Valenzuela and found that the City was liable for having an unlawful policy, but not based on a failure to train claim. A second phase of the trial on damages followed and the jury returned a verdict awarding $3.6 million in damages for Mr. Valenzuela’s loss of life and $6 million for his pre-death pain and suffering. The jury also awarded $1.8 million each to his surviving estate members for wrongful death damages.
On a motion for judgment as a matter of law, the court concluded the officers were not entitled to qualified immunity. The court also concluded that the City was liable under Monell for an unconstitutional policy because it allowed the use of carotid holds in non-deadly force situations.
In terms of damages, the trial court rejected the city’s argument that loss of life damages are not cognizable under Section 1983 despite the fact that state law does not recognize loss of life damages in the state survival statute. The court concluded that foreclosing recovery for loss of life damages is inconsistent with the policies behind Section 1983 and incentivizes officers to kill rather than injure.
The Ninth Circuit upheld the district court’s decision. In supporting the City in its petition for rehearing en banc, IMLA focused exclusively on 1) Whether a local government’s policy allowing the use of carotid holds in non-deadly force situations is unconstitutional under Monell despite a state training policy that sanctions it; and; 2) Whether Section 1983 when applying a state survival statute allows for loss of life damages as a policy matter where the state law does not provide for loss of life damages.
Filed June 28, 2021 (Ninth Circuit)
City of Sacramento v. Mann
No. 2:17-cv-01201
Pro Bono Author: Lee Roistacher
Sacramento police officers shot and killed Joseph Mann. Mr. Mann’s father, as his next of kin and on behalf of his estate, brought suit against the City under Section 1983 and the City settled the case with Mr. Mann’s father. Several months after the settlement, three non-cohabitating siblings brought suit under Section 1983, claiming a right under the First Amendment based on their intimate relationship with the decedent. The siblings conceded a lack of Due Process protection for their relationships.
This case has a convoluted procedural history and two previous Ninth Circuit panels in this case have disagreed as to whether the First Amendment provides protection for non-cohabitating siblings. The district court sums up the conflicting decisions as follows:
The court’s discussion of whether plaintiffs have adequately stated a § 1983 claim for deprivation of their First Amendment rights is complicated by the fact that the Mann II and Mann III decisions appear to be plainly contradictory. While Mann II stated that the right of intimate association should be analyzed in the same manner regardless of whether it is characterized under the First or Fourteenth Amendments, and that Ward bars intimate association claims by adult, non-cohabitating siblings, Mann III stated that Ward did not create a cohabitation requirement, and addressed only Fourteenth Amendment association claims, implying that the contours of an intimate association claim may differ depending on which amendment the claim is brought under.
After these conflicting opinions and despite law of the case issues with the second panel ignoring the first panel’s decision (calling it dicta), the district court decided to follow Mann III because it was more recent and concluded that “at least in certain circumstances, the right of siblings to intimately associate falls within the First Amendment’s ambit” and that, at least for the purposes of a motion to dismiss, this was one such case.
The issue in this case for IMLA’s purposes is whether a claim for intimate association may be brought under the First Amendment.
Filed June 10, 2021 (Ninth Circuit)
LA Alliance for Human Rights v. City of Los Angeles, et. al.
No. 21-55395
Pro Bono Author: John Neiman & Caleb Wolanek
Holding: The Ninth Circuit vacated the district court’s preliminary injunction.
A group of business owners and residents of Los Angeles sued the City and County alleging, among other things, the City/County were liable for a state created danger, ADA violations, negligence, and violations of state nuisance laws for failing to adequately address the homelessness crisis.
The district court found in favor of the plaintiffs on several grounds, including those both pled and not pled in their Complaint and granted sweeping relief beyond that which was sought by the Plaintiffs. The court, basing its decision primarily on structural racism, concluded that the City and County violated the Fourteenth Amendment based on a “special relationship” under the state created danger theory; violated the Equal Protection Clause due to “severe inaction” and based on a disproportionate number of homeless individuals being black as a result of historic and structural racism (though this was not the focus of the Plaintiffs’ equal protection arguments); and a based on the Fourteenth Amendment’s protections for family integrity.
The district court judge then ordered relief beyond that sought by the Plaintiffs, including that the City to hold $1 billion in escrow to provide shelter to the homeless; provide housing for every homeless individual in Skid Row within 90 – 180 days; cease all sales and transfers of City/County properties pending a court-ordered report by the Controller on all land potentially available for homeless housing (but did not include “projects in process”); and to create a number of investigations, audits, and reports related to funds that had been utilized to address homelessness.
The issue in this case is whether the district court violated the separation of powers with its sweeping order.
Filed May 28, 2021 (Eighth Circuit)
Tyler v. Hennepin County
No. 20-3730
Pro Bono Author: John Baker & Katherine Swenson
Holding: The Eighth Circuit concluded that the plaintiff did not have a property interest under state law in the surplus equity of her condominium.
Under Minnesota law, property taxes become a lien against the property once they are assessed. Minn. Stat. § 272.31. If property taxes are not paid during the year in which they are due, they become delinquent the following year, at which point, a county may obtain a judgment against the property. Minn. Stat. § 279.03 subd. 1. As a matter of notice and procedure, each year, the county auditor creates a delinquent tax list, which identifies the properties on which taxes are owed, the taxpayer(s), and the amount of taxes/penalties owed. The delinquent tax list is published twice and mailed to all delinquent taxpayers. A lawsuit is commenced against delinquent taxpayers and if there is no answer, the court enters a judgment against the property.
Delinquent taxpayers have several avenues to avoid forfeiture. First, while title in the property vests in the state after judgment is entered, that title is subject to the right of redemption, which is a 3-year period during which the taxpayer may redeem the property for the amount of delinquent taxes, penalties, costs, and interest. Minn. Stat. §§ 281.01–281.02, 281.17. Second, a property owner seeking to avoid forfeiture who cannot afford to redeem the property, can make a “confession of judgment,” which then allows the property owner to consolidate the debt /tax delinquency and pay in installments over five to ten years. If a property owner fails to pursue either of these avenues, absolute title vests in the state and all outstanding taxes, penalties, interest, etc. are canceled. Even after absolute title vests, the state still provides additional procedures for the property owner to repurchase his/her property. Under Minnesota’s tax foreclosure scheme, former property owners have no way to claim any proceeds from the sale of the property in excess of the tax debt.
The Plaintiff in this case owned a condominium in Minneapolis and stopped paying taxes in 2010. At the time the County sought judgment under the aforementioned statutory scheme, the Plaintiff owed $15,000 in unpaid state property taxes, penalties, costs, and interest. The Plaintiff received the statutorily prescribed notice of foreclosure, failed to answer, and then never tried to redeem the property during the 3-year period. She also did not seek to repurchase the property. Thereafter, Hennepin County sold the property for $40,000, and kept the surplus and distributed it in a manner pursuant to state statute.
Tyler sued, claiming the City violated the Fifth Amendment’s Takings Clause and the Eighth Amendment’s Excessive Fines Clause by keeping the value of her property that exceed the tax debt that she owed. As to the Taking’s inquiry, the court identified the “critical question” as whether the surplus equity belonged to the Plaintiff or the County after the absolute title of the condo passed to the County. The district court concluded that nothing in either federal or state law gives a former owner of property that has been lawfully forfeited to the state any property rights. Absent any property rights, the court concludes there can be no viable takings claim.
The district court also rejected the excessive fines argument, noting that “neither the Supreme Court nor the Eighth Circuit has ever found a tax-related penalty or forfeiture to constitute an excessive fine.” Whether the forfeiture is a “fine” turns on the question of whether it is a form of punishment. The district court agreed with the County that the forfeiture at issue here was remedial as it related to helping the government recoup its costs associated with non-payment of property taxes and was therefore not a fine under the Eighth Amendment. The court rejected the argument that the forfeiture was punitive simply because the County received more than what was needed to make it whole.
The issues on appeal are whether the County violated the Fifth Amendment or the Eighth Amendment’s Excessive Fines Clause by keeping the surplus of a property sale after the property is sold pursuant to a tax-related forfeiture.
Filed May 28, 2021 (Supreme Court Petition Stage)
Cortesluna v. Rivas-Villegas
No. 20-1539
Pro Bono Author: Denise Rocawich & James Touchstone
A 911 dispatch received a call from a 12-year-old girl that her mother’s boyfriend was threatening her, her sister, and her mother with a chainsaw. The child reported they had locked themselves in a bedroom. She described the boyfriend and noted he was drinking. Officers were dispatched to the scene.
When the officers arrived, they saw Cortesluna through a window but did not see or hear a chainsaw. The officers formulated a plan, which included using less lethal force and went and knocked on the door to ask Cortesluna to come outside and speak with them. They announced themselves and when Cortesluna came to the door, he was holding a large metal object that appeared to be a crowbar. The officers ordered him to drop the weapon and come outside.
The plaintiff dropped the metal object, put his hands up and came outside. The officers ordered him to his knees at which point, the officers noticed a knife in his pocket. They ordered him not to put his hands down (toward the knife) but to put his hands up. Cortesluna lowered his head and hands (toward the knife) and one of the officers, Officer Leon, immediately shot him with two rounds from a bean bag shotgun. He then put his hands up and they ordered him to get down on the ground, and he complied. Officer Rivas-Villegas then put his knee on Cortesluna’s back for no more than 8 seconds (there is a video of the incident) in order to get him restrained in handcuffs. This is a common police tactic which is used to prevent officer injury where a suspect is known to be armed, as was the case here.
Cortesluna sued the officers, claiming excessive force for both the use of the bean bag shotgun and for the knee on his back for 8 seconds. The Ninth Circuit concluded that the officer who fired the beanbag gun did not violate the Fourth Amendment given the rapidly unfolding events and the threat to the officers when Cortesluna was reaching toward the knife in his pocket. As to officer Rivas-Villegas, however, the Ninth Circuit concluded that he violated the Fourth Amendment right to be free from excessive force “by leaning too hard” on Cortesluna’s back, allegedly causing injury because by the time he did so, the threat had passed. The Ninth Circuit also denied qualified immunity, concluding it was clearly established that “police may not kneel on a prone and nonresisting person’s back so hard as to cause injury.”
The dissenting judge chastised the majority for downplaying “the dangers officers face in making arrests” “from the comfort of [their] chambers,” noting that the “suggestion that Cortesluna suddenly no longer posed a risk at the moment the beanbag shots were fired … is factually unreasonable.”
The issues in the case are: (1) Whether the U.S. Court of Appeals for the 9th Circuit departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard in denying qualified immunity to Daniel Rivas-Villegas based upon the absence of a constitutional violation, by concluding that pushing a suspect down with a foot and briefly placing a knee against the back of a prone, armed suspect while handcuffing him, could constitute excessive force; and (2) whether the 9th Circuit departed from the Supreme Court’s decision in Kisela v. Hughes and numerous other cases by denying qualified immunity even though two judges concluded the use of force was reasonable, and notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting Rivas-Villegas.
Filed May 24, 2021 (Texas Appellate Court, Third District)
State of Texas v. City of Austin
No. 03-21-00144-CV
Pro Bono Author: LiJia Gong & Alan Bojorquez
This case involves the State of Texas’ legal challenge to the City of Austin’s ordinance requiring facial coverings due to the coronavirus. On March 2, 2021, Texas Governor Greg Abbott issued Executive Order GA-34, which declared that Texas had “reopened for business as usual” and removed almost all mandatory COVID-19 precautionary measures such as limitations on the occupancy rates of certain businesses, limits on the size of public gatherings, social distancing, and the wearing of masks. GA-34 also purports to prohibit the authority of local governments to issue any “conflicting orders” that would include restrictions or limitations that exceed the Governor’s orders, including local ordinances that require the wearing of masks. GA-34 specifically suspends certain sections of the Texas Disaster Act that would otherwise authorize local governments to issue emergency management orders during a declared public disaster.
Because the city continues to see ongoing threats of transmission, the introduction of new virus variants, a low percentage of vaccinations, and possible “super spreader public events” like spring break, the City sought to keep its mask mandate in place despite GA-34. The State of Texas sued the City. Austin argues that the Public Health Authority has the independent and express statutory authority provided to it from the Texas Legislature to take preventative measures in an effort to curb the transmission of infectious disease under the Local Public Health Reorganization Act, Tex. Health & Safety Code §121.024. The City contends that this authority is separate from and unrelated to the Governor’s emergency management authority and that the City’s mask ordinance is therefore not preempted by the Governor’s order.
The issue in this case is whether local governments in Texas have the authority through their public health authority delegated to them by the Texas Legislature to take steps to stop the spread of communicable disease or does the Governor’s Executive Order preempt local authority in this area?
Filed May 14, 2021 (Ninth Circuit)
R.J. Reynolds Tobacco Company, et. Al. v. County of Los Angeles
No. 20-55930
Pro Bono Author: Joelle Lester & Rachel Bloomekatz
Holding: The Tobacco Control Act does not preempt the County’s flavor ordinance.
A Los Angeles County Ordinance prohibits tobacco retailers from selling flavored tobacco products and tobacco products are defined to include both cigarettes and e-cigarettes. Los Angeles County Ordinance § 11.35.070(E); § 11.35.020(J); § 11.35.020(U)(1)-(2). A number of tobacco companies sued seeking an injunction, claiming the ordinance was preempted by federal law. Specifically, they argue that the Family Smoking Prevention and Tobacco Control Act (the FSPTCA), 21 U.S.C. §§ 387-387u, expressly preempts the Ordinance because it impermissibly ‘‘establishes a state requirement that is ‘different from’ and ‘in addition to’ federal requirements related to tobacco product standards.’’
The district court rejected the argument that the ordinance is preempted, agreeing with the Second Circuit (which upheld a similar ban by New York City) “that a ban on flavored tobacco products was not a tobacco product standard” under the FSPTCA. The court reasoned the ordinance addressed only “whether final tobacco products are ultimately characterized by – or marketed as having – a flavor and is not easily read to direct manufacturers as to which ingredients they may or may not include in their products” which if it was, would infringe on the FDA’s authority to determine what chemicals and processes can be used in making tobacco products. The court also rejected the implied preemption arguments, finding the ordinance is “neither a manufacturing standard nor does it regulate the ingredients of tobacco products” and it therefore was not an obstacle to the purpose of the FSPTCA. Finally, the court notes that the FSPTCA has a Preservation Clause which “expressly preserves localities’ traditional power to adopt any ‘measure relating to or prohibiting the sale’ of tobacco products.’’
The issue in the case is whether the FSPTCA preempts either expressly or impliedly, the County’s Ordinance banning the sale of flavored tobacco products.
Filed January __. 2021 (Missouri Supreme Court)
Gross v. Parsons
Pro Bono Author: Nathan M. Nickolaus
This case involves a Sunshine Law issue before the Missouri Supreme Court, which if not overturned, would result in significant reduction in the ability of local governments to recover costs for public records requests in the State. Mr. Gross submitted a request for public records to Missouri Governor Michael Parson’s office, under the State’s Sunshine Law, seeking “[a]ny and all records, communications, documents, emails, reports, and other material” sent from the Governor’s Office from twenty-seven named individuals or entities after January 9, 2017, which Gross asserted were individuals and entities associated with “dark money” contributions during the previous Governor Eric Greitens’ term.
The Office sent a letter to Gross stating that it found 13,659 documents that may be responsive to his request and provided an enclosed invoice estimating research and processing would take 90.46 hours at a $40/hour rate, which totaled to an estimated cost of $3,618.40 owed before it began preparing the information. Mr. Gross responded to the Office asking to waive its fees or explain why the Office was charging $40/hour instead of the clerical rate.
When it refused to waive the fee, Mr. Gross filed an eight-count petition in the Circuit Court of Cole County against Gov. Parson and Hallford, the custodian of records for the Governor’s Office, alleging that they violated the Sunshine Law.
The circuit court entered judgment dismissing the petition. The Western District Court of Appeals ruled in favor of Gross for five out of the ten issues presented in his appeal, including for our purposes, on the issue of cost.
The Sunshine law has two different sections regarding what fees a public governmental body is authorized to charge, § 610.026.1(1) and § 610.026.1(2). Section 1(1) provides in relevant part that a fee for copying should not exceed 10¢/page with an hourly rate for copying to not exceed the average hourly rate of pay for clerical staff, and for research time. Section 1(2) states electronic records and states that costs “shall include only the cost of copies, staff time, which shall not exceed the average hourly rate of pay for staff of the public governmental body required for making copies and programming, if necessary, and the cost of the disk, tape, or other medium used for the duplication.”
Traditionally sections 1(1) and (2) have been read in harmony. Entities subject to the production requirements were entitled to charge for research time regardless of the physical nature of the record. However, the Western District ruled that the two clauses should be read separately, resulting in allowing the research charge for physical records but not for electronically stored records The court reasoned that while specifically allowing the public governmental body to charge for “research time” under Section 1(1), and specifically limiting the charges for the staff time making the copies under Section 1(2) in the same legislation, it would be inconsistent to hold that attorney research time is assessable under Section 1(2). Thus, the court concluded that there was no authority in the language of the statute in Section 1(2), for a governmental body to assess research fees or attorney fees to a requester of records covered under Section 1(2). Furthermore, while the court found that the Governor’s General Counsel and his or her deputies are staff, it found that their research (in case there was work product or confidential information) was unnecessary to providing Gross possession of the records.
The issues in our brief before the Missouri Supreme Court would focus on the elimination of cost recovery for research and attorney fees based on the different manner in which records are stored.
Filed January 29, 2021 (Washington Supreme Court)
Seattle v. Long
No. 98824-2
Pro Bono Author: Matthew Segal
Holding: The Washington Supreme Court held that Seattle’s imposition of a $547.12 fine to recoup its actual costs associated with towing and impounding his illegally parked vehicle constituted an excessive fine in violation of the Eighth Amendment. The court concluded the fine was punitive because impounding the vehicle was intended to be a “penalty” under the statute. The court then concluded that the fine was excessive because Mr. Long lived in his vehicle and did not have an ability to pay the fine and courts should consider an individual’s ability to pay in determining whether a fine is excessive.
The Washington Supreme Court has granted review in this case, which involves a tow and impoundment of a vehicle being used as a residence by a homeless individual, Mr. Long. The police received a complaint that someone associated with Mr. Long’s pick-up truck threatened someone with a knife. No charges were filed related to this incident, however, the officers informed Mr. Long that his car was parked on City property and that it was illegal to park on City property for more than 72 hours. Parking enforcement put a sticker on the vehicle, providing notice that Mr. Long had 72 hours to move his vehicle. Parking enforcement then gave Mr. Long an extra 4 days to move his car as he had indicated he needed a part for it. When it still wasn’t moved, it was towed.
Mr. Long contested the impound. Mr. Long did not dispute his vehicle was illegally parked, but instead indicated that he was living in his vehicle and that he was indigent. As relevant to IMLA, on appeal from the magistrate judge’s decision, Mr. Long argued that the City violated the Fourteenth Amendment’s substantive due process clause by acting with deliberate indifference to his personal and physical safety when it impounded his truck as he did not have shelter once it was towed. He also argued the impoundment was a penalty and amounted to an excessive fine under the Eighth Amendment due to the fact that he was homeless / indigent. The appeals court concluded that the City did not violate Mr. Long’s substantive due process rights and that the fees were not excessive under the Eighth Amendment.
Filed January 12, 2021 (Missouri Supreme Court)
Gross v. Parsons
No. SC98619
Pro Bono Author: Nathan Nickolaus
This case involves a Sunshine Law issue before the Missouri Supreme Court, which if not overturned, would result in significant reduction in the ability of local governments to recover costs for public records requests in the State. Mr. Gross submitted a request for public records to Missouri Governor Michael Parson’s office, under the State’s Sunshine Law, seeking “[a]ny and all records, communications, documents, emails, reports, and other material” sent from the Governor’s Office from twenty-seven named individuals or entities after January 9, 2017, which Gross asserted were individuals and entities associated with “dark money” contributions during the previous Governor Eric Greitens’ term.
The Office sent a letter to Gross stating that it found 13,659 documents that may be responsive to his request and provided an enclosed invoice estimating research and processing would take 90.46 hours at a $40/hour rate, which totaled to an estimated cost of $3,618.40 owed before it began preparing the information. Mr. Gross responded to the Office asking to waive its fees or explain why the Office was charging $40/hour instead of the clerical rate.
When it refused to waive the fee, Mr. Gross filed an eight-count petition in the Circuit Court of Cole County against Gov. Parson and Hallford, the custodian of records for the Governor’s Office, alleging that they violated the Sunshine Law.
The circuit court entered judgment dismissing the petition. The Western District Court of Appeals ruled in favor of Gross for five out of the ten issues presented in his appeal, including for our purposes, on the issue of cost.
The Sunshine law has two different sections regarding what fees a public governmental body is authorized to charge, § 610.026.1(1) and § 610.026.1(2). Section 1(1) provides in relevant part that a fee for copying should not exceed 10¢/page with an hourly rate for copying to not exceed the average hourly rate of pay for clerical staff, and for research time. Section 1(2) states electronic records and states that costs “shall include only the cost of copies, staff time, which shall not exceed the average hourly rate of pay for staff of the public governmental body required for making copies and programming, if necessary, and the cost of the disk, tape, or other medium used for the duplication.”
Traditionally sections 1(1) and (2) have been read in harmony. Entities subject to the production requirements were entitled to charge for research time regardless of the physical nature of the record. However, the Western District ruled that the two clauses should be read separately, resulting in allowing the research charge for physical records but not for electronically stored records The court reasoned that while specifically allowing the public governmental body to charge for “research time” under Section 1(1), and specifically limiting the charges for the staff time making the copies under Section 1(2) in the same legislation, it would be inconsistent to hold that attorney research time is assessable under Section 1(2). Thus, the court concluded that there was no authority in the language of the statute in Section 1(2), for a governmental body to assess research fees or attorney fees to a requester of records covered under Section 1(2). Furthermore, while the court found that the Governor’s General Counsel and his or her deputies are staff, it found that their research (in case there was work product or confidential information) was unnecessary to providing Gross possession of the records.
The issues in our brief before the Missouri Supreme Court would focus on the elimination of cost recovery for research and attorney fees based on the different manner in which records are stored.
Filed November 13, 2020 (Southern District of Texas)
State of Texas v. United States
No. S.D. Tex. 1:18-cv-00068
Pro Bono Author: Mike Dundas
The State of Texas challenges legality of the DACA program itself. MALDEF and the State of New Jersey have separately intervened in this case because the United States would not defend DACA at the time. Texas had filed a motion for summary judgment months ago, but that proceeding was stayed pending the Supreme Court’s decision in Department of Homeland Security v. Regents of the University of California, which was a challenge to the DACA program but purely under the Administrative Procedure Act, not the actual legality of the program itself. Once the Supreme Court ruled in the Regents case (that the decision to rescind DACA was unlawful under the APA), this case began moving forward.
Based on our prior participation in this case at the Supreme Court and the fact that over fifty-five local governments were participating in the case, IMLA joined an amicus brief being filed by the City of Los Angeles.
Filed October 29, 2020 (Ninth Circuit Petition for Rehearing En Banc)
Grimm v. City of Portland
Pro Bono Author: Jonathan Eisenman
Status: The Ninth Circuit en banc court denied the petition for rehearing.
Grimm parked his car and paid for parking through the City’s mobile App. When his parking expired, he neither moved his car, nor paid for parking. Over the course of seven days, the City left six citations on his illegally parked car. On the seventh day, Portland left a red tow slip on Grimm’s windshield. Retriever Towing then towed the car “promptly” that same day (the record does not reflect exactly how much time elapsed from the placement of the red towing slip to when the car was towed). There is a dispute as to whether another tow warning notice was placed on the car a few days before it was towed (and that issue was therefore resolved in Grimm’s favor at this stage).
After Grimm realized his car was towed, he retrieved it and filed suit, alleging that the City violated the Fourteenth Amendment’s Due Process Clause by failing to provide adequate pre-tow notice. The district court ruled in favor of the City on summary judgment.
The Ninth Circuit reversed, concluding that due process requires individualized notice before a car may be towed. The court emphasized that “the uninterrupted use of one’s vehicle is a significant private interest” and towing vehicles is a practice that “disproportionally prejudices low-income populations…” The court concluded that the Supreme Court’s decision in Mullane v. Central Hanover Bank controls and for due process to be satisfied, the notice provided must be “reasonably calculated” to provide notice that the car would be towed. Grimm claims that the City should have known that the citations on his car were ineffective notice because they remained on his windshield and the City therefore, according to Grimm, should have taken additional steps to notify him of the tow. The Ninth Circuit remanded to the district court to determine the following:
(1) Is putting citations on a car that do not explicitly warn that the car will be towed reasonably calculated to give notice of a tow to the owner?; (2) Did the red tow slip placed on Grimm’s car shortly before the tow provide adequate notice?; and (3) Was Portland required under Jones to provide supplemental notice if it had reason to suspect that the notice provided by leaving citations and the tow slip on Grimm’s windshield was ineffective?
Filed October 14, 2020 (Ninth Circuit)
City of Anaheim v. Valenzuela
Pro Bono Author: Steven Renick
As relevant for our purposes, in July 2016, two officers ended up each applying a carotid hold to a suspect whom they sought to arrest. During the course of the attempted arrest, he offered significant resistance, would not submit to arrest, and ran away from them at one point. After the second carotid hold, the suspect, Mr. Valenzuela, lost consciousness. The officers performed CPR and he was transported to a hospital, but he died 8 days later. It was disputed how long the holds were applied and whether they were in fact carotid holds (the plaintiffs claim they were improperly applied and amounted to choke holds).
The Anaheim police department had a policy allowing for the use of carotid holds in instances of non-deadly force (within certain parameters). The California Commission on Peace Officer Standards and Training offered mandatory training on the carotid hold for all California police officers at the time of the events in this case and they were trained on it as a non-lethal force restraint. The governor, in June of this year, ordered that law enforcement cease being trained on the use of the carotid hold.
Mr. Valenzuela’s estate filed suit against the officers for excessive force and wrongful death. They also brought suit against the City based on an alleged unlawful policy and under a failure to train claim. The jury found that the officers had used excessive force against Mr. Valenzuela and found that the City was liable for having an unlawful policy, but not based on a failure to train claim. A second phase of the trial on damages followed and the jury returned a verdict awarding 3.6 million in damages for Mr. Valenzuela’s loss of life and $6 million for his pre-death pain and suffering. The jury also awarded 1.8 million each to his surviving estate members for wrongful death damages.
On a motion for judgment as a matter of law, the court concluded the officers were not entitled to qualified immunity and that is not an issue IMLA briefed. The court also concluded that the City was liable under Monell for an unconstitutional policy because it allowed the use of carotid holds in non-deadly force situations.
In terms of damages, the trial court also rejected the city’s argument that loss of life damages are not cognizable under Section 1983 despite the fact that state law does not recognize loss of life damages in the state survival statute. The court concluded that foreclosing recovery for loss of life damages is inconsistent with the policies behind Section 1983 and incentivizes officers to kill rather than injure.
The issues IMLA focused on in its amicus brief are:
- Whether a local government’s policy allowing the use of carotid holds in non-deadly force situations is unconstitutional as a matter of law despite a state training policy that sanctions it; and
- Whether Section 1983 when applying a state survival statute allows for loss of life damages as a policy matter where the state law does not provide for loss of life damages.
Filed September 16, 2020 (Fourth Circuit)
Bauer v. Elrich
No. 20-1707
Pro Bono Author: Danielle Goldstein
Montgomery County established the Emergency Assistance Relief Payment (EARP) program, which provides direct cash benefits to certain county residents. According to the program’s website, the County established the program because “the COVID-19 pandemic is causing an unprecedented financial hardship for many Montgomery County residents…” The EARP program provides cash benefits between $500 – $1,450 depending on the number of people in the household. Families and individuals in the County are eligible if: (1) they are residents and need financial assistance to pay for food and essentials, (2) they are not eligible for federal and state financial relief programs or unemployment benefits; (3) have income equal to or less than 50% of the federal poverty level.
Taxpayers in the County sued, alleging that the County is violating 8 USC § 1621 because they claim the program is intended to provide direct cash benefits to undocumented immigrants. Section 1621(a) provides that an undocumented immigrant is not eligible for any State or local public benefits except certain benefits outlined in subsection (b), such as health care services, non-cash assistance, and disaster relief. Subsection (d) provides that a State may affirmatively enact a law after August 22, 1996 to provide “an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a)…”
The County argued that Section 1621 does not authorize the taxpayers to bring a private right of action and that they therefore do not have standing to sue. The County also argued that the EARP program is authorized under subsection (d) because under home-rule provisions of the Maryland Constitution, Maryland has authorized the County to enact locally applicable laws that have the force of state law. Finally, the County argues that the law violates the Tenth Amendment in light of the Supreme Court’s decision in Murphy v. NCAA because it does not regulate individuals directly and instead purports to regulate States’ enactment and administration of their benefits programs.
The district court dismissed the complaint, concluding that Congress did not authorize private parties to enforce Sec. 1621. The court therefore found it unnecessary to rule on the other legal issues raised by the County, including whether Section 1621 violated the Tenth Amendment.
The issues before the Fourth Circuit are:
- Whether Section 1621 authorizes private parties to bring suit against a local government for an alleged violation of the statute;
- Whether Section 1621 violates the Tenth Amendment; and
- Whether the County’s ordinance authorizing the EARP program is an enactment under State law for the purposes of Section 1621 given the County’s home-rule authority.
Filed August 10, 2020 (Hawai’i Intermediate Court of Appeals)
Flores v. Ballard
No. CAAP-19-0000841
Pro Bono Author: Alan Cohen
Held: The temporary assignment of police officers from one county to another is authorized under Hawaii law.
This case arises out of protests by Native Hawaiian people residing in Hawaii County regarding the government’s agreement to allow the construction of a 30 foot telescope / observatory at the top of Mauna Kea, a mountain that is considered sacred by many Native Hawaiians. The protests spanned several weeks and Hawaii County sought assistance from law enforcement in neighboring Maui County and Honolulu County to help police the protests.
The Plaintiff in this case claims his First Amendment rights were infringed by police officers from other jurisdictions when they prevented him from accessing the road to the top of Mauna Kea. Plaintiff claims that the police officers from other jurisdictions had no authority to engage in police activities in Hawaii County and violated Hawaii Rev. Stat. § 52D-5 by doing so.
Hawaii Rev. Stat. § 52D-5, “Powers of chief of police outside own county,” states:
The chief of police of each county and any duly authorized subordinates shall have and may exercise all powers, privileges, and authority necessary to enforce the laws of the State, in a county other than the county in and for which the chief has been appointed, if:
(1) The exercise of such power, privilege, and authority is required in the pursuit of any investigation commenced within the county in and for which the chief has been appointed; and
(2) The concurrence of the chief of police of the county in which the power, privilege, and authority sought to be exercised is obtained.
The Plaintiff contends that because the investigation did not commence in Honolulu County or Maui County, those officers had no jurisdiction to police the protests in Hawaii County and he sued for declaratory and injunctive relief.
Defendants moved to dismiss the complaint, countering that allowing the Plaintiff to proceed is contrary to the plain language and purpose of the statute, which they argue provides no private right of action. They also argue that the mutual aid / intra-governmental assistance statute contemplates exactly the types of assistance provided in this case. Specifically, they argue Haw. Rev. Stat. §72-27 authorizes the “temporary assignment of Honolulu Police Department employees to the Hawaii County Police Department by agreement, which was implemented here.” That law provides in relevant part as follows:
With the approval of the respective employer, a governmental unit of this State may participate in any program of temporary inter- or intra-governmental assignments or exchanges of employees as a sending or receiving agency.
“Agency” means any local, national, or foreign governmental agency or private agency with government sponsored programs or projects.
(d) An agreement consistent with this section and policies of the employer shall be made between the sending and receiving agencies on matters relating to the assignment or exchange, including but not limited to supervision of duties, costs of salary and benefits, and travel and transportation expenses; provided that the agreement shall not diminish any rights or benefits to which an employee of a governmental unit of this State is entitled under this section.
The district court granted the defendants’ motion to dismiss the complaint, concluding that the purpose of Haw. Rev. Stat. s. 52D-5 is “to provide continuity to police investigations from one county jurisdiction to another and to also protect the local control and assure cooperation through the provision of notification to a county chief of police when investigations are to be pursued within this jurisdiction or another jurisdiction.” The court concluded that there was therefore no private right of action to pursue a violation and dismissed the complaint.
Although this is a state court case involving a Hawaii statute, IMLA believes these types of mutual aid agreements are extremely common and that allowing a private citizen to attack their validity here, would undermine their authority elsewhere. Moreover, these types of agreements are particularly helpful for smaller jurisdictions that simply do not have the funds to have extra police officers at the ready in case of large-scale protests or disasters.
Filed July 27, 2020 (Utah Supreme Court)
Salt Lake City Corp. v. Utah Inland Port Authority
No. 20200118-SC
Pro Bono Author: Richard Briffault
Utah passed the Utah Inland Port Authority Act, which established the Port Authority Board, an eleven-member board of directors with only two members representing the City in order to develop an inland port in Salt Lake City. Every representative of the City area voted against the bill. The City had concerns regarding the Act’s delegations of the City’s traditional authority over land use, infrastructure, tax revenue and municipal functions to the Board.
The Act reclassified the entire 16,157 acres of “authority jurisdictional land” as one project area, roughly 13,000 acres of which are within the City. Landowners collectively own 472 parcels of real property within the jurisdictional land. Under the Act, 100% of growth-related property tax differential associated with the development of inland port uses on the jurisdiction land is diverted to the Authority (rather than the City). The Act also authorized the Authority to immediately collect growth-related property tax throughout a collection period of 40 years. Moreover, the City is prohibited from banning inland port functions and required to maintain infrastructure to support inland port functions (the Act required reimbursement to the City for such developments). Lastly, the law delegates the authority of land-use-decision-making to the Authority with respect to projects on the jurisdictional land that constitute “inland port uses.”
The City brought suit, arguing that the Utah Constitution’s “Ripper Clause” prohibits the Utah State Legislature from seizing control from Salt Lake City in this manner. Utah’s Constitution includes a Ripper Clause, which provides: “The Legislature shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects . . . to levy taxes, . . . or to perform any municipal function.” Utah. Const. Art VI, § 28.
The court held that the Act did not violate the Ripper Clause or the other provisions of the Utah Constitution. The court found the diversion of tax differential to finance construction of inland port projects, the prohibition against the City’s interference with inland port uses, and the requirement that the City furnish infrastructure to support inland port uses with the right of reimbursement all fell outside the scope of the Ripper Clause—they are direct legislative mandates, rather than delegations of authority to the Authority or anyone else. The court reasoned that the Ripper Clause only prohibited delegations of municipal authority to special commissions not direct legislative mandates. The court found that only the City’s claims that the State’s delegation of authority regarding land use decisions could possibly fall within the prohibitions of the Ripper Clause. However, regarding the delegation of land use functions, the court found that even if the Authority is a “special commission” within the meaning of the Ripper Clause, the State has articulated sufficiently compelling state interests and those interests are “sufficiently infused with state interest that they do not violate the Ripper Clause.” The court reasoned that the “[l]egislature is not prohibited from rescinding police powers it has granted to municipalities in the defense of a strong state purpose…”
Filed July 21, 2020 (Superior Court, State of Georgia)
Kemp v. Bottoms
Pro Bono Author: Rusi Patel
Status: The governor withdrew his lawsuit against the City.
The Governor of Georgia “strongly encourages” individuals to wear face coverings, but his executive orders do not require individuals to wear face coverings. The Mayor of the City of Atlanta issued an order requiring individuals in the City to wear face coverings in indoor public spaces and when outside and social distancing is not feasible.
Georgia law also provides that the “political subdivisions of the state…are authorized and empowered to make, amend, and rescind such orders, rules, and regulations as may be necessary for emergency management purposes and to supplement the carrying out of Articles 1 through 3 of [Chapter 38 of the Georgia Code], but not inconsistent with any orders, rules, or regulations promulgated by the Governor.” O.C.G.A. §38-3-28(a). Despite this provision of Georgia law, each of the Governor’s executive orders related to the public health emergency contains a purported preemption clause for local government rules indicating:
[C]ounty and municipal governments are authorized and empowered to make, amend, and rescind such orders, rules, and regulations as may be necessary for emergency management purposes and to supplement the carrying out of this Order, but such orders, rules, and regulations shall not be inconsistent with this Order or any other orders, rules, and regulations promulgated by the Governor or by any state agency exercising a power derived from the Public Health State of Emergency declaration. For the purpose of this provision, orders, rules, and regulations that are promulgated by county and municipal governments that are more or less restrictive than the terms of this Order shall be considered inconsistent with this Order.
Executive Order 07.15.20.01, p.32. (emphasis added).
Additionally, in relation to masks and face coverings, the Governor’s 7/15/20 Executive Order strongly encourages residents and visitors of the State of Georgia “to wear face coverings as practicable while outside their homes or place of residence, except when eating, drinking, or exercising outdoors.” However, unlike preceding executive orders, it also adds a new, specific, purported preemption clause on the issue of wearing masks and face coverings as regulated by the state and by local governments, which states:
That pursuant to Code Section 38-3-28, other than orders issued pursuant to the authority of Code Section 38-3-60 et seq., any state, county, or municipal law, order, ordinance, rule, or regulation that requires persons to wear face coverings, masks, face shields, or any other Personal Protective Equipment while in places of public accommodation or on public property are suspended to the extent that they are more restrictive than this Executive Order.
Executive Order 07.15.20.01, p.32. (emphasis added)
After the Governor issued his executive order seeking to preempt Atlanta’s order requiring masks, he sued the Mayor of Atlanta to enjoin the City from requiring individuals in the City to wear masks pursuant to the Mayor’s order despite the fact that as of the time the lawsuit was filed, nearly 3,500 people from Georgia have died from COVID-19 and the spread of disease was increasing within the State. IMLA filed an amicus brief in support of the City of Atlanta in this case.
Filed July 7, 2020 (Supreme Judicial Court of Maine)
Portland Pipeline Corporation v. City of South Portland
No. FED-20-40
Pro Bono Author: Sarah Fox
Held:The Maine Supreme Judicial Court concluded state law did not preempt the City’s ordinance. The case is now pending again before the First Circuit (because the First Circuit had certified 3 questions of state law to Maine’s highest court).
Portland Pipeline Corporation (PPLC) operates a number of pipelines which pass underground between South Portland and Montreal, Canada where the oil refineries are. South Portland maintains Pier 2, where tanker vessels have historically docked to deliver oil. Pier 2 is in the City’s shipping zoning district (“S”) and is adjacent to public parks. PPLC has transported oil northbound to Montreal for decades by offloading oil from Pier 2, transporting it 2.5 miles to its “Main Tank Farm” and then loading it into its pipelines. The Main Tank Farm is zoned “C” for Commercial and is adjacent to residential neighborhoods, schools, etc.
PPLC sought to reverse the flow of oil in some of its pipelines, such that it would be bringing crude oil or “tar sands” oil from Montreal and then load it onto ships in the City’s harbor for shipment to both US and international destinations.
In 2012-2013, advocates began opposing the flow reversal project. An initial ordinance that would have banned the project failed in the city council, but the council agreed to a moratorium on development proposals involving the loading of oil sands / tar sands products onto tank vessels docking in the City to study the implications in terms of land use, environmental, health effects, and other regulatory implications of the development proposal.
Over the next six months, the City created a committee to study the impacts of the proposed development and invited PPLC to participate in the hearings held by the committee. The City concluded that higher concentrations of HAP emissions caused by the crude oil loading would cause increases in City residents’ risk of cancer and that these risks were particularly concerning due to the proximity of the PPLC facilities to schools, parks, and other areas most used by children and the elderly.
Ultimately, after extensive hearings and study, the city council voted to pass the Clear Skies Ordinance, which sought to protect citizens and visitors from harmful effects caused by air pollutants and conserve natural resources. The Ordinance prohibits the storing and handling of petroleum or petroleum products for the “bulk loading of crude oil onto any marine tank vessel” in commercial and shipping zoning districts. The Ordinance further prohibits the installation or construction of any structures with the potential to emit air pollutants for the purpose of loading of crude oil onto any marine tank vessel in the C and S zoning districts.
PPLC argues that if it cannot reverse the flow of its pipeline, the company will go out of business and the ordinance prohibits it from doing so. PPLC sued, arguing that the zoning ordinance is preempted by a number of federal and state laws, including the interstate pipeline safety act (PSA), the Port and Waterways Safety Act (PWSA), federal maritime law and that the ordinance violates the dormant commerce clause.
The district court found that the ordinance was not preempted by any federal or state law, did not violate the dormant commerce clause and was instead, a lawful exercise of a local government’s historical police powers. IMLA submitted an amicus brief to the First Circuit, which in turn certified certain state law questions to the Maine Supreme Judicial Court before issuing its ruling, consistent with the doctrine of constitutional avoidance. IMLA’s amicus brief addressed following questions, which the First Circuit certified to the Maine Supreme Judicial Court:
- Is the City of South Portland’s Clear Skies Ordinance preempted by Maine’s Coastal Conveyance Act?; and
- Is there any basis for finding that Main’s Coastal Conveyance Act impliedly preempts the City of South Portland’s Clear Sky Ordinance?
Filed July 6, 2020 (D.C. Circuit)
Union of Concerned Scientists, et. al v. National Highway Traffic Safety Administration
No. 19-1230
Pro Bono Author: Michael Burger
The National Highway Traffic Safety Administration (NHTSA) finalized the “proposed regulatory text implementing its statutory authority to set nationally applicable fuel economy standards that made explicit that those State programs would also be preempted under NHTSA’s authorities.” In other words, in the final rule NHTSA has preempted California’s and other states’ regulation of emissions from applicable vehicles.
24 States and 2 Cities have sued the Secretary of Transportation, making a number of administrative law and preemption related arguments. First, they argue that the Preemption Regulation exceeds NHTSA’s statutory authority and is therefore unlawful under the Administrative Procedure Act (APA). Second, the state and local government challengers argue the Preemption Regulation is ultra vires – it is beyond the agency’s scope of authority, because NHTSA “does not identify any statute or other authority that authorizes the regulation” and that it therefore violates the separation of powers and infringes on a historic state police power. Third, they offer numerous arguments for why the Preemption Regulation is arbitrary and capricious under the APA.
While the case involves the federal government preempting state law, we have seen the federal government encroaching on local authority in a number of areas and IMLA voted to participate in this case based on its belief that a strong Tenth Amendment helps preserve local autonomy in addition to State sovereignty. Further, the brief points out that the agency’s expansive interpretation of EPCA could be construed to argue that local programs to address transportation pollution are also preempted. The brief also discusses additional harms to local governments that results from climate change, including economic harms, property harm, increased harm to local governments’ citizens and explains that local governments therefore have a significant interest in controlling vehicle emissions in order to minimize air pollution and its negative health and economic effects.
Filed June 5, 2020 (Washington Supreme Court)
Garfield County Transportation Authority et al. v. State of Washington
No. 19-3358
Pro Bono Author: Erin Scharff
In the general election in November 2019, 53% of Washington voters state-wide approved Initiative No. 976 (I-976), concerning motor vehicle taxes and fees and limited the annual motor-vehicle-license fees to $30. The result was to reduce locally enacted annual license fees which ranged from $20-$100 per vehicle registration and in the aggregate bring in millions in revenue for local governments.
Many local governments filed suit, claiming that if I-976 is initiated, they will experience significant financial harm, including drastic reductions in funding for public transit. They also argue that the Washington Constitution reflects a profound respect for local home rule particularly as to local taxing and spending decisions. Specifically, Article XI, section 12 of the Washington constitution states:
The legislature shall have no power to impose taxes upon counties, cities, towns or other municipal corporations or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof, the power to assess and collect taxes for such purposes.
The local government plaintiffs argue that I-976 upends the system of home rule, inserting the State into local government decisions about how to tax and spend to address local concerns and that it will substantially decrease the amount of funding available for transportation projects statewide, including many projects that are critical from a public safety standpoint.
The district court rejected the local governments’ arguments that I-976 was unconstitutional, including their argument that the Constitution specifically prohibited the State legislature from directing local governments and its citizens how to tax and spend for local purposes.
The local governments raise a number of state constitutional issues, but IMLA’s brief focused on the following issues:
- Does I-976 violate article XI, section 12 by depriving municipal governments of vested local taxing authority for local purposes prior to expiration of the local tax?
- Does I-976 violate article I, section 19 by using a statewide vote to override existing local votes and diluting the voice of local voters on matters of local concern?
Filed April 27, 2020 (Seventh Circuit)
United States Conference of Mayors v. Barr
No. 19-3358
Pro Bono Author: David Saunders & Gabriel Gillett
This litigation concerns the U.S. Attorney General’s (AG) ability to attach immigration conditions to the Byrne Jag grant, a formula grant, that Congress charged his office with distributing to State and local governments. The City of Evanston and USCM filed suit, arguing that the imposition of the conditions violated the Administrative Procedure Act (APA) because they were beyond the AG’s statutory authority and that they violated the Spending Clause of the Constitution as well as the separation of powers.
Every court to review the question of whether the AG had the authority to impose the conditions on a formula grant has ruled that he did not. And like every other court before it, the district court in this case ruled that the AG violated the APA by imposing the conditions on the grants.
The court ordered that the AG was permanently enjoined from imposing the conditions on Evanston and on any USCM member. USCM is a non-profit and non-partisan membership association. Its members are cities, which are represented in USCM by their mayors.
The DOJ argued that USCM did not have associational standing to litigate this case on behalf of its members. The court rejected DOJ’s arguments, finding that USCM did have standing to seek relief on behalf of its members because: 1) at least one of its members would have standing to sue on its own behalf; 2) the interest USCM sought to protect was germane to the association’s purpose, namely coordinating cities’ interaction with the federal government and preventing overreach by the federal government; 3) the claim and the relief do not require participation of individual USCM members because the suit raises pure legal questions.
IMLA focused on whether an association has standing to bring suit on behalf of its members.
Filed January 24, 2020 (Fourth Circuit)
Reyazuddin v. Montgomery County
No.
Pro Bono Author: Daniel Peterson
Held: The Fourth Circuit held the employee was the prevailing party under the Rehabilitation Act for the purposes of recovering attorney’s fees because the jury found the County liable for discrimination even though she was not awarded any compensatory damages and had no enforceable judgment against the County.
The plaintiff is blind and was employed as a customer service representative for Montgomery County’s call center. The County moved to a new call center, which came with new software and that software was not accessible to the blind. The plaintiff was denied the opportunity to move to the new call center and she sued the County, claiming that the County failed to accommodate her disability when did not transfer her to the new call center.
The plaintiff brought suit under the ADA and the Rehabilitation Act. The district court granted summary judgment in favor of the County on all claims, but the Fourth Circuit reversed on the Rehabilitation Claim. That claim went to trial and the jury ultimately found the County had failed to accommodate the plaintiff but awarded $0 in damages (apparently her attorneys did not request nominal or economic damages). After the jury’s verdict, the County transferred the plaintiff to her desired position.
After the transfer, the district court denied the plaintiff’s motion for injunctive relief, concluding “she was no longer employed in inadequate alternative position…” and the court also denied declaratory relief, concluding that such relief would be superfluous of the jury’s verdict. The Fourth Circuit affirmed.
The plaintiff then filed a motion for attorney’s fees, claiming she was the “prevailing party” under the Rehabilitation Act. To be a “prevailing party” under the statute, the plaintiff must receive an enforceable judgment. The district court denied her motion, finding that the term “prevailing party” is a legal term of art, and she did not meet the requirements under the statute because she received no damages from the jury and there is a difference between nominal and no damages for the purpose of determining if someone is a prevailing party. That is because the jury’s award of no damages did not “materially alter the legal relationship between the parties…” The district court explained that a judicial announcement that the defendant has violated the law, without more, does not make the plaintiff a “prevailing party” under the statute. The court also rejected the plaintiff’s argument that she “prevailed” because she was transferred to her desired position. The court reasoned that such an argument is “simply advancing the catalyst theory, which posits that a plaintiff is a prevailing party if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct” and the Supreme Court has expressly held that the “catalyst theory” cannot form the basis for attorney’s fees.
The issue as framed by the appellant in this case is: Where, after a jury found that the County violated the Rehabilitation Act by failing to provide the Plaintiff with reasonable accommodations, and where, after the verdict, but before the district court entered judgment in her favor, the County accommodated the Plaintiff, did the district court err in finding that she was not the “prevailing party” under 29 U.S.C. § 794a?
Filed December 30, 2019 & January 6, 2020 (Tenth Circuit / First Circuit)
Board of County Commissions of Boulder County v. Suncor / Rhode Island v. Chevron
No.
Pro Bono Author: Robert Peck
Status: The Tenth and First Circuits remanded the Colorado localities climate suit to state court, which was a win for the local governments.
These cases involve federalism and preemption principles and the decisions will implicate a local governments ability to bring suit under state nuisance laws broadly.
Cities and counties across the United States have brought lawsuits against major oil and gas companies claiming they knew for decades their products caused climate change but denied or downplayed the threat while promoting their products. The complaints claim that the defendants engaged in an overt public relations campaign intended to cast doubt on climate science. These lawsuits have been brought under state common law (including public and private nuisance, trespass, negligence, etc.). The suits seek damages or compensation for current and future costs associated with climate change (such as health related deaths, flooding due to sea-level rise, etc.).
By way of background, in American Electric Power v. Connecticut (2011) the Supreme Court held a federal common law public nuisance lawsuit seeking an injunction against power companies to reduce greenhouse gas emissions (GHGs), brought by cities and states, was displaced by the Clean Air Act, which delegates authority to regulate GHGs to the U.S. Environmental Protection Agency (EPA). The oil companies in these cases argue that first, a federal common law public nuisance claim for climate change does exist and, second, that as a result of the existence of a federal nuisance claim cities and counties cannot bring state common law claims for damages for climate change. They then argue that any federal common law nuisance claim was displaced by the Clean Air Act under American Electric Power regardless of the actual theory of liability in these cases.
The issue in these case is whether cities and counties may bring state common law claims seeking damages or compensation for climate change impacts.
Filed December 11, 2019 (Sixth Circuit)
Metropolitan Government of Nashville & Davidson County v. Bennett
Pro Bono Author: Stephanie Gumm, Robert Hagemann, Joanna King, & Colin McGrath
Held: The Sixth Circuit concluded that Nashville did not violate the First Amendment when it fired a 9-11 dispatcher who used a racially offensive slur in the context of the 2016 election in a public Facebook post that identified her as an employee of the City.
The morning after the 2016 Presidential Election, Plaintiff posted an image of an electoral college map that revealed Donald Trump as the winner of the election. A Facebook user, identified as Mohamed Aboulmaouabhib, commented on Plaintiff’s post of the electoral college map, “Redneck states voter for Trump, niggaz and latinos states votre for hillary.” Plaintiff responded, “Thank god we have more America loving rednecks. Red spread all across America. Even Niggaz and latinos voted for Trump too!”
Plaintiff’s response prompted a co-worker, to comment, “Was the niggaz statement a joke? I don’t offense easily, I’m just really shocked to see that from you.” Plaintiff defended her comment and replied that her post was in response to Mr. Aboulmaouabhib’s “ignorant message” and she was “only racists against ignorance and rudeness.” Later, another co-worker commented, “I’m offended and this will be reported. As well as deleted.”
Several co-workers complained to their respective supervisors, their respective managers, the Emergency Communications Center (“ECC”) HR department or the Metro HR department about the content of Plaintiff’s Facebook post. A citizen also complained to the Mayor’s Office of Neighborhoods and indicated that based on the content of Plaintiff’s post, the complainant feared a person of color may not receive adequate assistance when calling 911. The Office of Neighborhoods informed the ECC Director.
When the ECC Director spoke with Plaintiff, Plaintiff indicated she did not feel the post was offensive and was merely mocking the person who posted before her. The Director ultimately terminated her employment after she showed no remorse or accountability. The Plaintiff appealed and an administrative law judge and the civil services commission both upheld the termination decision.
She then filed a federal lawsuit arguing her termination violated the First Amendment and the district court denied Nashville’s summary judgment motion, concluding that under Pickering, the factors weighed in the employee’s favor such that a jury should decide the issue. Specifically, the court found given “Plaintiff’s significant interest in speaking on a matter of core public concern —which did not relate to her job duties—and the relatively slim evidence of workplace disruption resulting therefrom, the Court concludes Defendant’s interest in workplace efficiency is less robust than Plaintiff’s interest in commenting on a presidential election.” The case went to a jury to answer special interrogatories on questions of fact. The district court judge then took those jury interrogatory answers to rule on the legal matters presented in the case such as whether the employee’s speech was protected by the First Amendment and to conduct the Pickering balancing test. The court ultimately ruled in favor of the plaintiff, concluding that Nashville violated her First Amendment rights by terminating her employment for the offensive Facebook post and then the jury found the City liable.
Nashville is appealing the decision to the Sixth Circuit and among the issues to be appealed is whether the plaintiff’s use of the n-word is constitutionally protected conduct in the public employment context. Nashville will also likely appeal the manner in which Pickering was applied in this case given that it gave less weight to workplace disharmony than it would have for police and fire departments.
Filed October 25, 2019 (Second Circuit)
City of Syracuse v. Grant
Pro Bono Author: Amanda Kellar & Erich Eiselt
Police were called to the Grant home on a domestic disturbance call. When they responded, they found the husband in an agitated state and asked him to go outside. They sought to detain him for safety purposes and a fight broke out between the husband, who is much larger, and one of the officers. The police officer struck him a number of times with his hand. A second officer came over during the struggle and hit the husband with a knee strike and head lock. They were then able to subdue him and got him medical attention for a broken nose and concussion.
The husband and wife both sued the police officers and the city, claiming that when the officers arrived the situation was entirely under control and that they told the officers they no longer needed their services, but the officers nevertheless entered their home without permission and proceeded to arrest the husband without probable cause given that the domestic situation was, according to the plaintiffs, entirely under control by the time they arrived. They claim the use of force was entirely unprovoked whereas the officers claim Mr. Grant initiated the physical altercation. The plaintiffs brought claims under Section 1983 for false imprisonment and excessive force as well as claims against the City under Monell.
On the Monell claim, the plaintiffs allege that the City’s deliberate indifference to civil complaints of police brutality has resulted in the customary use of excessive force by its police officers, and, as a proximate result of such policy, they suffered injuries. The plaintiffs introduced evidence at trial from a Citizen Review Board (CRB), which contained information about hundreds of complaints against officers over a multi-year period and the recommendations by the CRB as to discipline, as well as the police department’s actual action taken against each officer. The plaintiffs argued that the CRB report demonstrated a pattern of excessive force that went undisciplined which created a climate whereby officers felt empowered to act with impunity.
The district court denied summary judgment to the officers on the excessive force and false imprisonment charges, finding enough disputed facts to send the case to a jury. The district court also denied summary judgment on the Monell claim and refused a motion to bifurcate the Monell claim from the individual officers’ claims, even though the Monell claim relied on evidence from the CRB, which the City argued would prejudice the jury against the officers. A jury returned a verdict for the plaintiffs for nearly 2 million dollars not including attorney’s fees.
The city is appealing on a number of issues, but IMLA will focus on the district court’s failure to bifurcate the trial and the introduction of the CRB report.
Filed April 23, 2019 (Tenth Circuit)
Smart v. City of Wichita
No. 18-3242
Pro Bono Author: Christopher Balch
Held: The court held that the officers were entitled to qualified immunity for all of their actions with the exception of the last two bullets fired after the suspect was already on the ground.
Bars were closing in downtown Wichita around 1:45 am and around 200-300 people were socializing outside on the streets. Office Froese exited his vehicle and started to walk toward what looked like a fight so he could intervene when he heard a gunshot. He turned toward the shot and saw Smart, whom he believed was holding a gun, and then two more shots were fired. Officer Chaffee was positioned in a different part of the crowd and also heard gun shots. Chaffee also saw Smart, and also testified that Smart appeared to be holding a gun.
Immediately after the gun was fired, people in the crowd panicked and began running, most going South. Smart, however, started running north. The officers chased Smart and believed he was still holding a gun. As he closed in on him, Officer Froese fired on Smart (it is disputed as to whether he gave a warning). Officer Chaffee, coming from a different direction heard the shots, but didn’t know if Smart or an officer had fired them. Chaffee then fired on Smart and Smart fell to the ground at which point he was fired on 3 more times by Chaffee and was killed (it is similarly disputed as to whether Chaffee gave warnings before firing on Smart).
Whether Smart was holding a gun is a disputed fact, however, it is undisputed that the officers believed he was armed and had fired the shots into the crowd. A handgun was found 10 feet from Smart in the alley where he was shot and casings at the scene where shots were fired into the crowd were linked to the gun found near Smart.
Smart’s estate sued the officers under Section 1983, claiming a Fourth Amendment violation.
The district court concluded that there were enough factual disputes that for the purposes of summary judgment, the plaintiffs met their burden to show that the officers violated Smart’s Fourth Amendment rights. Specifically, the court concluded that for the purposes of summary judgment, it would assume Smart did not have a gun (though conceded this would be up for the jury to decide) and thus, he could not have been threatening the officers or bystanders. Further, the court concluded that a jury could deem even a mistaken perception by the officers that he had a gun to be unreasonable for the purposes of summary judgment. In other words, if Smart didn’t have a gun, a jury would need to decide whether their mistaken belief that he did have a gun was reasonable such that deadly force would be justified.
Nonetheless, the court went on to conclude that the officers were entitled to qualified immunity because the law was not sufficiently clear that their conduct was unconstitutional. The court explained that the plaintiffs failed to point to any precedent that would squarely govern the facts at issue in the case, or to show that the officers’ actions were plainly incompetent, or that they knowingly violated the law. Specifically, the court explained that nobody disputes that shots were fired into a crowd of hundreds of people, or that officers were confronted with a “chaotic situation and the need to quickly disarm the shooter to protect innocent bystanders.” The court concluded that it was not egregious for the officers to shoot Smart under the mistaken perception that he was the active shooter under these circumstances.
The issues on appeal are whether the officers violated the Fourth Amendment and if so, whether the law was clearly established such that they would not be entitled to qualified immunity.
Filed September 25, 2019 (Ohio Supreme Court)
City of Athens et. al. v. McClain
No.
Pro Bono Author: Erin Scharff
Held: (1) the General Assembly’s authority to limit the power of municipalities to tax allows it to broadly preempt municipal income taxes and to require that such taxes be imposed in strict accordance with the terms dictated by legislation passed by the General Assembly; and (2) The General Assembly’s appropriation of .5 percent of the municipal nettax proceeds is not a valid act of limitation.
The State of Ohio passed H.B. 49, which allows businesses to opt for the State to collect and administer municipal net profit taxes. Prior to the passage of H.B. 49, each municipality would control that collection and administration process. Under the new law, municipalities have 90 days to report to the state tax commissioner specific information about the taxpayer and if it fails to do so, the tax commissioner may penalize the municipality by withholding 50% of the net-profit-tax revenue due to the municipality. Further, the state retains .5% of all net profit taxes paid as a fee for the collection and administration of services. The law also authorizes the State to decide on taxpayer requests for refunds of municipal taxes and does not allow municipalities to participate in that process.
Ohio has a Constitutional Home Rule Provision, which provides: “[m]unicipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”
The trial and appellate courts in Ohio found that the challenged provisions of Ohio state law were constitutional under the Home Rule Amendment. Regarding the municipal power to tax, the appellate court concluded that Article XIII, Section 13 of the Ohio Constitution, which states that “laws may be passed to limit the power of municipalities to levy taxes * * * for local purposes,” allowed the State to enact the legislation. Specifically, in interpreting the term “levy,” the court concluded that the General Assembly was permitted to enact legislation limiting municipalities’ power to impose, collect, and administer taxes without violating the Home Rule Amendment.
The municipalities recognize that the Ohio Constitution requires balance with respect to municipal taxation power given the limiting provision. However, they argue that finding a balance necessarily requires a more nuanced examination of how that power is exercised. And in this case, the specific limiting power has been applied to displace municipalities’ general power of taxation provided by the Home Rule Amendment, which they argue is unconstitutional.
The issue before the Ohio Supreme Court is whether the Home Rule Amendment of the Ohio Constitution grants municipal corporations a general power of municipal taxation, and if so, where a State law engulfs municipal corporations’ general power of taxation, whether that State law is unconstitutional.
Filed September 4, 2019 (Fourth Circuit)
Mayor & City Council of Baltimore v. BP P.L.C.,
Pro Bono Author: Michael Burger
Held: The Fourth Circuit remanded the case to state court
Cities and counties across the United States have brought lawsuits against major oil and gas companies claiming they knew for decades their products caused climate change but denied or downplayed the threat while promoting their products. The complaints claim that the defendants engaged in an overt public relations campaign intended to cast doubt on climate science. These lawsuits have been brought under state common law (including public and private nuisance, trespass, negligence, etc.). The suits seek damages or compensation for current and future costs associated with climate change (such as health related deaths, flooding due to sea-level rise, etc.).
By way of background, in American Electric Power v. Connecticut (2011) the Supreme Court held a federal common law public nuisance lawsuit seeking an injunction against power companies to reduce greenhouse gas emissions (GHGs), brought by cities and states, was displaced by the Clean Air Act, which delegates authority to regulate GHGs to the U.S. Environmental Protection Agency (EPA). The oil companies in these cases argue that first, a federal common law public nuisance claim for climate change does exist and, second, that as a result of the existence of a federal nuisance claim cities and counties cannot bring state common law claims for damages for climate change. They then argue that any federal common law nuisance claim was displaced by the Clean Air Act under American Electric Power regardless of the actual theory of liability in these cases.
A federal district court granted the City of Baltimore’s motion to remand to Maryland state court the City of Baltimore’s case against fossil fuel companies for climate change-related damages. The district court held that the City’s public nuisance claim was not governed by federal common law, and that its claims did not necessarily raise substantial and disputed federal issues and were not completely preempted. The court also held that there was no federal enclave jurisdiction, no jurisdiction under the Outer Continental Shelf Lands Act, no federal officer removal jurisdiction, and no bankruptcy removal jurisdiction.
The issue in this case is whether cities and counties may bring state common law claims seeking damages or compensation for climate change impacts.
Filed August 6, 2019 (Court of Appeals of Texas)
Texas v. City of Double Horn
No. 03-19-00304
Pro Bono Author: Zindia Thomas
This case involves a challenge by the Texas Attorney General to a city’s incorporation. Voters in the county voted to incorporate the city in a special election and after the results were confirmed, a county judge entered the municipal incorporation. Since that time, the city has elected a mayor and alderman, and engaged in various governmental functions.
The State challenges the city’s incorporation claiming that it was invalid 1) because the city was not an unincorporated town or village and therefore could not incorporate; and 2) because the city’s incorporation includes property that is not to be used strictly for town purposes. The City argues that the municipality is already undertaking significant government functions. Further, under Texas law, the intention of present or immediate future use of all the included area for municipal purposes is not required. Thus, the fact that a portion of land in the city’s boundaries is vacant does not invalidate municipal incorporation. More importantly from IMLA’s perspective, the fact that the town had no commercially developed area prior to incorporation should not be enough to reverse the will of the people who voted to incorporate the town at the ballot box.
Filed June 13, 2019 (Seventh Circuit)
EFT Transit v. Indiana Alcohol & Tobacco Commission
No. 19-1292
Pro Bono Author: Douglas Church
Indiana maintains a three-tier distribution system for alcoholic beverages consisting of manufacturers, wholesalers, and retailers. Ind. Code §§ 7.1-3 et seq. (Prohibited Interest Statutes). Permits are both issued and required in order to participate in any of the three tiers. The wholesaler tier, which is at issue in this case, provides that a wholesaler cannot hold an interest in both a beer and liquor permit and vice versa.
EFT is a trucking company licensed by the Commission to transport beer, wine, and liquor. Monarch is a beer and wine wholesaler, for which EFT provides delivery services. EFT and Monarch share the same CEO, shareholders, board of directors and employees. In 2009, EFT reached a tentative agreement to warehouse and ship alcoholic beverages for Indiana Wholesale, a licensed liquor wholesaler. The Commission rejected the application, concluding that EFT and Monarch “operate as one entity” and if the agreement was allowed, Monarch would have an interest in Indiana Wholesale, which is prohibited under the three-tiered distribution system laws.
EFT sued, arguing that the Federal Aviation Administration Authorization Act (FAAAA) preempted the Indiana Prohibited Interest Statutes. The FAAAA preempts state laws “having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” See 49 U.S.C. § 14501(c)(1). EFT argues that enforcing the Prohibited Interest Statutes against it falls within the scope of FAAAA preemption by limiting EFT’s motor carrier services. The Commission, on the other hand, argues that Indiana’s Prohibited Interest Statutes are protected from preemption by virtue of the Twenty-first Amendment.
The district court held that the Prohibited Interest Statutes are central to the three-tier system in Indiana, and effect core Twenty-first Amendment interests, and the court reasoned that the FAAAA therefore did not preempt the statutes. Because the challenge to the law was based on preemption, not the Commerce Clause, the court noted that there is a strong presumption of validity for state regulations under the Twenty-first Amendment.
Filed May 15, 2019 (Seventh Circuit)
O’Brien v. Village of Lincolnshire & Illinois Municipal League
No. 19-1349
Pro Bono Author: Brian Connolly
The Village of Lincolnshire (the “Village’) is a member of the Illinois Municipal League (IML), which is a statutorily authorized nonprofit / nonpolitical association of Illinois cities, villages, and towns. The Village pays annual dues to IML as a part of its membership.
Plaintiffs are taxpayers who live in the Village as well as local unions who have at least one employee who live in the Village. They claim that IML has engaged in lobbying by suggesting Illinois units of government should support the Governor’s “Turnaround Agenda” by “adopting local ordinances that would legalize local ‘right-to-work’ zones.” The Village adopted a right-to-work zone.
The taxpayer plaintiffs object to the use of their taxes to pay for IML’s membership dues, which they claim due to IML’s political activity, runs “directly against their economic and political beliefs.” The plaintiffs analogize their arguments to Janus v. AFSCME (2018). In Janus, the Supreme Court held that “agency fees”, which required non-union members to pay their “fair share” of union dues violated nonmembers’ free speech rights under the compelled subsidy doctrine by compelling them to subsidize private speech with which they disagreed. Here, the plaintiffs argue that similarly, the Village is requiring them to subsidize the private speech of IML, with which they disagree.
The district court held that the Village and IML engage in government speech and therefore the compelled-subsidy doctrine does not apply, and the plaintiffs First Amendment claims fail as a matter of law. The court noted that the Supreme Court has held that a citizen has “no First Amendment right not to fund government speech.” The court rejected the plaintiffs’ argument that IML was a private entity engaging in private speech because the association’s speech was “effectively controlled by the government.” On this point, the court explained that IML is a “formal vehicle through which elected officials act together on behalf of their government entities” and its committees are “comprised exclusively of municipal members.”
The issue in this case is whether the taxpayers may claim that the Village’s membership dues in IML constitute a compelled subsidy or whether IML is engaged in government speech.
Filed May 13, 2019 (Sixth Circuit, Petition for Rehearing En Banc)
Taylor v. City of Saginaw
No. 17-2126
Pro Bono Author: Philip Hartman & Yazan Ashrawi
Status: The petition for rehearing was denied.
The City of Saginaw uses a common parking enforcement practice known as “chalking” to mark the tires of parked vehicles to track how long they have been parked and ultimately issue a civil citation if the vehicle is parked longer than the time allotted. Alison Taylor, who accumulated 15 parking tickets in a 3-year period, sued the City, claiming that the act of chalking her tires violated Fourth Amendment.
The City argued that the chalking was not a search within the Fourth Amendment or in the alternative, that if it was, it was reasonable under the community caretaking exception to the warrant requirement. The Sixth Circuit rejected the City’s arguments, first concluding that under Untied States v. Jones, the act of chalking the tires was a common-law trespass of a constitutionally protected area for the purpose of gathering information and was therefore a search under the Fourth Amendment. The Sixth Circuit then rejected the community-caretaking argument, concluding that the search does not relate to public safety and that “[b]ecause the purpose of chalking is to raise revenue, and not to mitigate public hazard, the City was not acting in its ‘role as [a] community caretak[r.]” In a footnote, the court also rejected the City’s arguments that chalking is so widespread and long-standing, that society may have granted it an implied license. Finally, the Sixth Circuit noted that the City had not pressed its argument that the search fell within the administrative search exception on appeal and the court therefore did not address this argument.
The issue in this case is whether chalking a parked car’s tires for the purpose of gathering information for parking enforcement violates the Fourth Amendment.
Filed January __, 2019 (Court of Appeals of the State of Washington)
Seattle v. Long
No. 78230-4-I
Pro Bono Author: Matthew Segal
This case involves a tow and impound of a vehicle being used as a residence by a homeless individual, Mr. Long. The police received a complaint that someone associated with Stephen Long’s pick-up truck threatened someone with a knife. No charges were filed related to this incident, however, the officers informed Mr. Long that his car was parked on City property and that it was illegal to park on City property for more than 72 hours. Parking enforcement put a sticker on the vehicle, providing notice that Mr. Long had 72 hours to move his vehicle. Parking enforcement actually gave Mr. Long an extra 4 days to move his car as he had indicated he needed a part for it. When it still wasn’t moved, it was towed.
Mr. Long contested the impound. At the contested hearing, Mr. Long did not dispute his vehicle was illegally parked, but instead indicated that he was living in his vehicle and that he was indigent. Rather than require Mr. Long to pay the full amount of costs associated with an impound like everyone else normally does, the magistrate judge: (1) waived the parking ticket; (2) reduced the actual costs of impound; and, (3) provided Long the opportunity to agree to a Payment Plan, whereby he would pay back the City $50 a month, for twelve months without interest. If Mr. Long failed to make payments under the Payment Plan, his vehicle would not be subject to forfeiture, attachment or execution, but instead, he would be potentially subject to administrative penalties and collection efforts.
On appeal from the magistrate judge’s decision, Mr. Long argued that the City violated the Fourteenth Amendment’s substantive due process clause by acting with deliberate indifference to his personal and physical safety when it impounded his truck as he did not have shelter once it was towed. He also argued the impoundment was a penalty and amounted to an excessive fine under the Eighth Amendment due to the fact that he was homeless / indigent. Finally, he argued that under the State’s Homestead Act, the impoundment was unlawful.
The Homestead Act of the Washington Constitution states that “[t]he legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families.” The Act was amended to include personal property noting that some citizens reside on their boats or in their cars.
On appeal, the Superior Court reversed, in part, concluding that: (1) Long’s substantive due process “defense” was groundless; (2) requiring Long to pay any amount associated with impound violated the Eighth Amendment’s prohibition against excessive fines; and, (3) that the Payment Plan violated the Homestead Act.
The issues on appeal are: (1) whether requiring Long to pay the actual costs associated with his impound violate the Eighth Amendment; and (2) whether the payment plan violated the Homestead Act.
Filed November 15, 2018 (Second Circuit / Ninth Circuit)
City of New York v. BP et al. / City of Oakland & San Francisco v. BP et al. / County of San Mateo et. al v. Chevron et al.
No.
Pro Bono Author: Michael Burger
CLICK HERE to view the Amicus Brief.
Cities and counties across the United States have brought lawsuits against major oil and gas companies claiming they knew for decades their products caused climate change but denied or downplayed the threat while promoting their products. The complaints claim that the defendants engaged in an overt public relations campaign intended to cast doubt on climate science. These lawsuits have been brought under state common law (including public and private nuisance, trespass, negligence, etc.). The suits seek damages or compensation for current and future costs associated with climate change (such as health related deaths, flooding due to sea-level rise, etc.).
Presently, three batches of cases are on appeal to the U.S. Courts of Appeal – two to the 9th Circuit (Oakland / San Francisco and San Mateo), and one to the 2nd Circuit (NYC).
Two of the three lower courts (NYC, Oakland / San Francisco) to hear these cases have ruled that cities and counties may not bring state common law claims, and dismissed the lawsuits. One court (San Mateo) has ruled cities and counties may bring state common law claims and ordered the cases before it remanded to state court.
By way of background, in American Electric Power v. Connecticut (2011) the Supreme Court held a federal common law public nuisance lawsuit seeking an injunction against power companies to reduce greenhouse gas emissions (GHGs), brought by cities and states, was displaced by the Clean Air Act, which delegates authority to regulate GHGs to the U.S. Environmental Protection Agency (EPA). In Native Village of Kivalina v. Exxon Mobile (2012), the Ninth Circuit held that a federal common law public nuisance lawsuit seeking damages for climate change brought by a Native village in Alaska was also displaced by the Clean Air Act. (Displacement of federal common law by a federal statute is, in essence, the same as preemption of state common law by a federal statute.)
The courts deciding the New York City and Oakland / San Francisco cases relied on the above two cases to conclude that, first, a federal common law public nuisance claim for climate change does exist and, second, that as a result of the existence of a federal nuisance claim cities and counties cannot bring state common law claims for damages for climate change. The courts concluded that any federal common law nuisance claim was displaced by the Clean Air Act under American Electric Power regardless of the actual theory of liability in these cases.
In contrast, the court in San Mateo concluded that the existence of a federal common law claim does not eliminate the state common law claim, and that the Clean Air Act’s delegation of regulatory authority to EPA does not preempt state law claims. “To the contrary, the Clean Air Act and the Clean Water Act both contain savings clauses that preserve state causes of action and suggest that Congress did not intend the federal causes of action under those statutes “to be exclusive.”
The issue in these cases is whether cities and counties may bring state common law claims seeking damages or compensation for climate change impacts.
Filed November 15, 2018 (Seventh Circuit)
Filed January 2, 2018 (Seventh Circuit)
Filed August 31, 2017 (N.D.Ill)
City of Chicago v. Sessions
No. 1:17-cv-5720
Pro Bono Author: Laura Tice & Katherine O’Brien & Luke Edwards
Held: The Seventh Circuit upheld the preliminary injunction against the Department of Justice’s imposition of the unlawful grant conditions.
The Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) provides financial support for local government law enforcement agencies around the country. Through a press release, the Department of Justice announced that it would be imposing new conditions on Byrne JAG grantees, including requiring grantees to: (1) certify compliance with 8 U.S.C. §1373; (2) allow federal officials the access to local government facilities to interrogate arrestees (“access” condition); and (3) provide at least 48 hours’ notice to federal officials prior to an arrestee’s release if immigration authorities have issued a detainer request for that individual (“notice” condition).
Chicago brought suit seeking a preliminary injunction against the Attorney General from imposing new conditions to the Byrne JAG. Chicago alleges that the conditions are inconsistent with the limitations imposed by the Constitution’s Spending Clause, the Fourth Amendment and basic separation of powers principles. The district court issued a preliminary injunction against the DOJ from enforcing the “notice” and “access” conditions, but denied Chicago’s request for an injunction on the 1373 compliance certification.
The Seventh Circuit affirmed the district court’s decision and the panel affirmed the nationwide aspect of the injunction. Thereafter, the en banc court stayed the applicability of the nationwide injunction (but kept it in place for Chicago) so that it could hear en banc, the issue of the applicability of nationwide injunctions. However, in the meantime, the district court issued a permanent injunction as to the notice and access conditions and also ruled that intervening Supreme Court authority had rendered 8 U.S.C. 1373 unconstitutional. Because the Seventh Circuit was hearing the issue of the scope of the nationwide injunction on the appeal of the preliminary injunction, not the permanent injunction, it dismissed the appeal as moot. The DOJ then repealed the district court’s permanent injunction to the Seventh Circuit.
Filed November 19, 2018 (First Circuit)
Gray v. Thomas A. Cummings, Town of Athol
No. 18-1303
Pro Bono Author: Amanda Kellar (IMLA)
CLICK HERE to view the Amicus Brief.
In 2013, Gray—who suffered from bipolar disorder and manic depression—suffered a manic episode and called the Athol Police Department. The department sent three officers to respond and Gray was brought to Athol Memorial Hospital (hospital). Later that morning, the hospital called the police department seeking the return of Gray who had left the hospital. The hospital informed the police that Gray was a “Section 12 patient,” meaning she was civilly committed for either being a danger to herself or others. Officer Cummings was dispatched to look for Gray.
Officer Cummings located Gray, radioed dispatch, and proceeded to pull over and step out of the cruiser. Gray began yelling obscenities at Cummings, and Cummings told Gray she must return to the hospital. When Gray refused, Cummings called for backup then followed Gray for twenty seconds while Gray shouted obscenities at him. Gray stopped roughly five feet away from Officer Cummings, with her fists, teeth, and body clenched. Gray shouted at Cummings and began walking toward him. As Gray approached, Cummings grabbed her shirt and took Gray to the ground, and Gray tucked her arms under her chest. Cummings ordered Gray to stop resisting and to place her hands behind her back, otherwise she would be tased. Gray refused and replied with obscenities, to which Cummings pulled out his Taser, placed it in stun mode, and tased her for about four to six seconds. Cummings then holstered his Taser and secured Gray in handcuffs. Gray was then taken back to the Hospital in an ambulance.
Gray filed suit alleging excessive use of force and failure to train under 42 U.S.C. § 1983, violation of the Americans with Disabilities Act (ADA), and various state law claims. The district court concluded that Officer Cummings did not violate Gray’s Fourth Amendment rights under Graham. The court found that even if the Fourth Amendment had been violated, the officer was entitled to qualified immunity as the law was not clearly established that a single application of a taser constituted excessive force against a person who has assaulted a police officer and actively resisted lawful arrest.
Regarding the ADA claim, the court noted that the First Circuit has not ruled on whether an officer may be liable under the ADA for failing to accommodate a person with disabilities in the process of an arrest or in the officer’s use of force, but that nevertheless, even if such a claim could be brought, the plaintiff could not succeed on this theory of liability.
The issues in this case are:
1. Whether an officer is entitled to qualified immunity after tasing a physically subdued individual with a mental disability who continues to resist the officer’s directives?
2. Whether law enforcement is required to provide reasonable accommodations under the Americans with Disabilities Act (ADA) in detaining an individual with a mental illness when effectuating an arrest?
Filed November 8, 2018 (Second Circuit)
Deferio v. Syracuse
No. 18-514
Pro Bono Author: Shannon O’Connor
Plaintiff, James Deferio, is a Christian evangelist who regularly attempts to share his religious beliefs in public during large events. Since 2004, he has attended the annual Central New York Pride Parade (CNY), a free public, family-friendly event held in Syracuse where he routinely proselytizes from the public sidewalk. CNY receives a permit every year to host this event. While the parade route varies, it generally culminates in a post-parade festival held inside a publicly-owned park, Inner Harbor Park.
Prior to the 2014 event, CNY applied for and received a “Parade/Public Assembly Permit” in which it specified that it would not have speakers located on the sidewalks. Sergeant Locastro, assigned to supervise the police officers working at the event, reviewed the permit prior to the event and when the parade concluded, was called to the entrance of the park where Deferio was standing with an amplification device and a sign calling for “homosexuals” to “repent.” Understanding the sidewalk on the north side of Kilpatrick to be reserved for CNY according to the city-issued permit, Locastro advised plaintiff that he was in violation of the permit the parade had requested and told him to move to the south side of the street. In his deposition Locastro cited both plaintiff’s violation of the permit as well as the fact that several event attendees were “actively trying to get at him” as a part of his decision-making process when directing the plaintiff to stand on the other side of the street. When asked what distinguished the plaintiff, Locastro added that the plaintiff was the only individual holding an anti-gay sign and upsetting people. Under threat of arrest, the plaintiff moved to the other side of the street and was not arrested.
In 2014, the City granted the permit but didn’t allow for the sound system or speakers because they didn’t ask for one.
In 2015 CNY again applied for a permit, adding that it wanted exclusive use of sound amplification along the parade route, including on Kirkpatrick Street. It specified that the location of assembly included 40 feet to either side of the park’s driveway entrance on the north side of Kirkpatrick (where plaintiff was located the previous year until he was asked to move). This year, plaintiff returned to his spot next to the park entrance where he held the following sign: “Thousands of ex-homosexuals have experienced the life-changing love of Jesus Christ.” In addition to the sign, he also engaged Pride attendees.
In 2015 they granted CNY’s permit which granted exclusive control to entry way and to 40-foot buffer zone and exclusive use of sound amplification / devices on festival grounds.
Captain Sweeny was assigned to supervise the police officers at the event this year and at the conclusion of the parade, arrived at the park driveway where plaintiff was located with his sign and amplification device. Sweeney advised that the Plaintiff could be arrested if he stayed at his current location because CNY had exclusive use of the street and plaintiff did not have a permit for his megaphone.
Plaintiff offered to stop using his megaphone, but Sweeny continued to advise him to cross the street, explaining that Syracuse had granted CNY a 40-foot buffer zone around the park entrance. Plaintiff moved to and remained on the other side of the street for two more hours after their exchange and was not arrested.
Plaintiff commenced this action under Section 1983 against the City and two officers, Capt. Sweeny, and Sgt. Locastro, alleging violations of his rights under the First and Fourteenth Amendments. As to the city, the plaintiff argued that it was liable under Monell based on the final policymaker’s decision to issue the permits in 2014 and 2015 in a way that plaintiff claims gave CNY Pride “proprietary control of public sidewalks.”
The court granted Deferio a preliminary injunction enjoining the city from restricting his access to “the entrance of the Pride festival based on a buffer zone.” The district court issued a memorandum-decision and awarded nominal damages to the plaintiff against Capt. Sweeny and Sgt. Locastro in their individual capacities only as to Deferio’s First Amendment claim, but denied that Capt. Sweeny and Sgt. Locastro violated plaintiff’s due process rights. The court rejected the plaintiff’s request for permanent injunctive relief and ruled in favor of the City on the plaintiff’s Monell claim. The plaintiff appealed from every part of the decision that was adverse to him, however, the City elected not to appeal the portions of the decision adverse to it. It is the city’s position that the individual police officers did not violate plaintiff’s due process right, the dismissal of any Monell causes of action was appropriate, and that the denial of injunctive and declaratory relief was appropriate.
The issue is whether dismissal of the plaintiff’s Monell claim was proper.
In another IMLA victory, the Second Circuit sided with the City of Syracuse that the plaintiff failed to establish a Monell claim against the City based on permits that it issued for a gay pride festival. In the case, Deferio v. City of Syracuse, the plaintiff, a sidewalk preacher, claimed the City could be liable under Monell because, according to the plaintiff, the City had given “proprietary control” to a private entity over public sidewalk. The court rejected this argument, explaining that to the extent that the training bulletin on City permits may allow some permits to cover sidewalks, “that alone does not establish an unconstitutional policy because a municipality is not per se barred from restricting protected speech on sidewalks or other public fora.” The court went on to explain that the permit did not give the festival “proprietary control” over public sidewalks, instead it allowed for the exclusive use of sound amplification in certain areas for the festival and that did not violate the plaintiff’s First Amendment rights. To read the decision, click here. Congratulations to the City of Syracuse on the victory and thank you to our excellent amicus brief author Shannon O’Connor at Goldberg Segalla.
Filed October 10, 2018 (Third Circuit)
Filed October 19, 2017 (E.d.Pa)
City of Philadelphia v. Sessions
No. 2:17-cv-03894
Pro Bono Author E.d.Pa: Laura Trice / Katherine O’Brien
Pro Bono Author Third Circuit: Justin Houppert
Philadelphia brought suit against the Attorney General based on the immigration conditions imposed by the Department of Justice in the Byrne JAG formula grant, arguing the conditions are ultra vires, unlawful under the Administrative Procedure Act, and violate the Separation of Powers and the Tenth Amendment. Philadelphia also sought a determination that it complies with §1373. The federal district court ruled in favor of the City, finding that it complies with §1373. The Department of Justice appealed to the Third Circuit.
Filed September 17, 2018 (Tenth Circuit)
Aptive Environmental v. Town of Castle Rock
No. 18-1166
Pro Bono Author: Susan Trevarthen & Laura Wendell
The town of Castle Rock adopted an ordinance imposing a 7:00 pm curfew on commercial solicitation in response to anecdotal concerns among residents about door-to-door solicitation and its effects on privacy and safety. The ordinance did not impact canvassers. Castle Rock is a suburban community of around 58,000 residents predominated by single-family residential neighborhoods and their council concluded that door-to-door solicitation infringed upon residents’ privacy, especially families who might be sitting down to eat dinner, putting children to bed, or relaxing after a long day.
Chapter 5.04 (the Code) specifically prohibited uninvited door-to-door solicitation between 7:00 pm and 9:00 am, but otherwise allowed solicitors to engage in sales on the properties of residents who have not requested to be placed on the town’s “no knock” list or placed a “no solicitors” sign on their property. Violations were punishable by a $1,000 fine but subject to an affirmative defense if the resident or occupant expressly invited the registered solicitor to enter their property.
Aptive Environmental, LLC (Aptive) is a pest control service whose primary means of generating sales is by through door-to-door solicitation. Aptive challenged the constitutionality of the 7:00 pm curfew as a violation of commercial speech because it limited contact with residents during peak sales hours, which generally occur after 7:00 pm when residents are home from work.
The district court enjoined the entire curfew provision, finding there to be no legitimate government interest materially advanced by the curfew under the second prong of the Central Hudson three-prong commercial speech test. 447 U.S. 557 (1980). In the court’s view, since the ordinance only impacted commercial solicitors and did not affect canvassers, establishing a curfew was an ineffective means of achieving the town’s goal of promoting privacy and public safety. The court also expressed some doubt as to whether there was even an issue with privacy and public safety to begin with, given the town’s lack of wide-based studies, analytical data, and empirical evidence of police complaints and crime reduction. The court viewed the town’s lack of empirical evidence and heavy reliance on anecdotal evidence as an indication that the town was not justified in enacting the ordinance. Further, the court also noted that the ordinance’s effect of providing comfort and peace of mind to residents, as articulated by the testimony of the town’s police chief, was not enough to demonstrate that it was effective against “real harm” in order to outweigh Aptive’s commercial speech interests.
Filed August 30, 2018 (Ninth Circuit)
Building Industry Association v. City of Oakland
No. 18-15368
Pro Bono Author: Margaret Sohagi & Phillip Seymour
In June 2017, the City enacted a public art ordinance (Ordinance), which requires certain multifamily residential and commercial development projects to devote 0.5 to 1.0% of project building costs to either install publicly accessible art onsite or in a nearby right-of-way, or make an in-lieu payment to the City’s public-art fund. The Ordinance allows some developers to apply for a waiver or reduction under certain circumstances. In addition, the Ordinance contains an appeal procedure.
BIA filed suit, asserting a facial challenge to the validity of the Ordinance on two grounds. First, BIA alleged that the Ordinance is an unlawful exaction that violates the Takings Clause of the Fifth Amendment under the “exactions doctrine” articulated in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Dolan v. City of Tigard, 512 U.S. 374 (1994), and Koontz v. St. John’s River Water Management District, 570 U.S. 595 (2013). Second, CBIA alleged the ordinance compels speech in violation of the First Amendment.
The City filed a motion to dismiss, which the district court granted. In dismissing BIA’s takings claim, the court declined to apply the Nollan/Dolan/Koontz exactions doctrine, explaining that the doctrine does not apply in a facial challenge to a generally applicable ordinance; rather, the doctrine applies only to discretionary decisions regarding individual properties. The court explained that generally applicable ordinances such as the Ordinance at issue are assessed under the regulatory takings framework set forth in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978), and held that the Ordinance does not cause a large enough loss of property value on its face to constitute a taking under Penn Central. In dismissing BIA’s First Amendment claim, the court applied rational basis review (finding the Ordinance does not require specific speech or significantly deter speech, and contains an in-lieu fee alternative) and held that the City satisfied its burden of establishing that the Ordinance is reasonably related to a legitimate governmental purpose. BIA appealed.
Filed August 28, 2018 (Ninth Circuit)
Nehad v. Zimmerman
No. 18-55035
Pro Bono Author: Lee Roistacher
Just after midnight, a store clerk called 911 to report that a man had threatened him with a knife. A police officer arrived on the scene by himself and turned his vehicle into an alley. In the alley, he saw a man who matched the description of the suspect walking toward his vehicle. He appeared to have a knife in his hand and when the officer exited his vehicle he ordered the suspect to “Drop it” and to “Stop.” The suspect continued to walk toward the officer with what appeared to be a knife in his hand. After he refused to adhere to the officer’s commands and continued advancing on the officer, the officer shot him when he was about 17 feet away. No knife was found, but the suspect was instead holding a pen in his hand. The entire incident unfolded in thirty-three seconds.
Three witnesses at the scene gave testimony including that they heard the officer’s commands and one witness testified that he saw the suspect “fiddling with something in his midsection” and while he wasn’t sure what it was (he thought it was a gun) he indicated it was “shiny and silver.” A video also captured the entire incident. The officer testified that he believed the suspect was holding a knife and that he felt his life was in danger.
On a motion for summary judgment, the district court concluded that the officer did not violate the Fourth Amendment and that in the alternative, he would have been entitled to qualified immunity as the law was not clearly established at the time of the shooting that his actions would have been unlawful. In terms of the Fourth Amendment violation, the district court focused on the Graham factors weighing in the officer’s favor. Specifically, that a report of a serious crime had been made, the officer felt his life was in danger, and that the events unfolded incredibly rapidly all weighed in favor of the finding that the officer’s actions were objectively reasonable under the Fourth Amendment. The court specifically rejected the plaintiff’s argument that the officer’s belief that his life was in danger was not reasonable because it turned out to be a pen in his hand, not a knife.
The district court dismissed the Monell claim based on the finding that there was no constitutional violation.
The issues in the case are whether the officer’s conduct violated the Fourth Amendment and if so, whether he was nonetheless entitled to qualified immunity.
Filed August 27, 2018 (D.C. Circuit)
Mozilla Corp. v. Federal Communications Commission (FCC)
No. 18-1051(L)
Pro Bono Author: Elina Drunker
In 2014, the FCC promulgated the Open Internet Order creating net neutrality rules including the bright line and transparency rules against discriminatory practices by Internet Service Providers (ISPs), and a general conduct standard for ISPs to abide by. The Open Internet Order was upheld on appeal to the D.C. Circuit in U.S. Telecom Ass’n v. FCC and is pending appeal to the U.S. Supreme Court.
In May 2017, shortly after the D.C. Circuit upheld the 2014 Open Internet Order, the FCC released a notice of proposed rulemaking (NPRM) to repeal the Open Internet Order and create a new set of net neutrality rules. These changes were enacted after the notice and comment period in an Order entitled Restoring Internet Freedom. The Restoring Internet Freedom Order removed the bright line, transparency, and general conduct requirement rules enacted in 2014 and reclassified Internet services from a Title II Telecommunication subject to common carrier treatment to a Title I information service. The switch to Title I eliminates the ability to use utility regulation for Internet services, and only allows for a “light-touch” approach to regulation.
After the promulgation of the Restoring Internet Freedom Order, fifteen suits were filed against the FCC, challenging the repeal of the old net neutrality rules. These cases were consolidated in the Court of Appeals for the D.C. Circuit. Petitioners include state and local governments, non-profit organizations, and businesses. Petitioners assert claims under the U.S. Constitution, the Administrative Procedures Act (APA) and the Communications Act of 1934 as amended. Specifically, petitioners argue that the Restoring Internet Freedom Order is arbitrary and capricious because the FCC disregarded the risk that providers would engage in abusive practices, failed to consider public safety, failed to consider reliance interests, and failed to consider the effect on Universal Service and pole attachments. Petitioners also argue that the FCC’s preemption of other regulation is invalid because they lack statutory authority, and conflict preemption is premature and erroneous because it must be raised on a case-by-case basis and there is no valid basis for it.
Filed August 20, 2018 (Supreme Court of Ohio)
Cleveland v. Ohio
No. 2018-0097
Pro Bono Author: Joseph Scott
In 2003, the City of Cleveland enacted an employment law, which provides that when Cleveland enters construction contracts of at least $100,000, the contracts provide that City residents perform at least twenty percent of total in-state construction worker hours. In addition, contractors and their subcontractors entering into contracts with Cleveland must “use significant effort to ensure that no less than four percent” of such resident worker hours are performed by low-income persons.
In 2016, the Ohio General Assembly sought to preempt the City’s ordinance, enacting a provision: “to prohibit a public authority from requiring a contractor to employ a certain percentage of individuals from the geographic area of the public authority for construction or professional design of a public improvement.”
The issue in this case is whether the State’s attempt at preempting Cleveland’s ordinance is a proper exercise of authority under of the Ohio Constitution.
Filed July 26, 2018 (Ninth Circuit)
Ryan v. Fabela
No. 18-15232
Pro Bono Author: Alison Turner
Joseph Ryan worked as Senior Assistant Counsel for SCVTA under the supervision of General Counsel, Robert Fabela. Ryan provided legal services to SCVTA’s Administrative Services Department (Department), including Labor Relations Manager David Terrazas. Ryan did not get along with Terrazas and other members of the Department. The relationship problems were well documented over several years, and Fabela’s performance evaluations of Ryan in 2013 and 2014 identified the problem.
In June 2014, Terrazas was running for reelection to the Santa Cruz City Council. Sometime that month, Ryan created a Facebook page (Page) titled “Anyone but Terrazas for city council.” The Page was only up for around a day before Ryan deleted it. During the Page’s existence, Ryan posted on it four times, making statements critical of Terrazas.
In February 2015, Fabela learned of the website when SCVTA received a letter from an attorney hired by Terrazas claiming Terrazas had been retaliated against for opposing improper behavior at SCVTA. Thereafter, Fabela began discussing termination of Ryan’s employment with his assistant general counsel. On June 5, 2014, Fabela signed a settlement agreement on SCVTA’s behalf under which Terrazas received approximately $25,000. The same day, Fabela informed Ryan that his employment would be terminated.
Ryan filed suit against SCVTA and Fabela, asserting various claims that were all later dismissed except for one: Ryan’s claim against Fabela in his individual capacity for First Amendment retaliation in violation of 42 U.S.C. § 1983. Fabela filed a motion for summary judgment, arguing that Ryan’s First Amendment rights were not violated and, even if they were, Fabela is entitled to qualified immunity because Ryan’s rights were not clearly established such that it was unreasonable for Fabela to believe that it was lawful to terminate him. The district court denied the motion, holding that (1) a genuine dispute of material fact exists as to whether Ryan’s First Amendment rights were violated, and (2) Ryan’s rights were clearly established. The court reasoned that, reading the facts in the light most favorable to Ryan, a jury could find: (1) that Ryan’s posts on the Page constituted a matter of public concern, (2) that Ryan was acting in his capacity as a private citizen when he made the posts, and (3) that the posts were a substantial or motivating factor in his termination. The court further concluded that Ryan’s right to comment on a public election in his capacity as a private citizen was clearly established.
The issue is whether the law was clearly established that firing an attorney who created a Facebook page criticizing his own client after years of a contentious relationship with that client violated the First Amendment.
Filed July 5, 2018 (Ninth Circuit petition for rehearing)
Chamber of Commerce v. Seattle
No. 17-35640
Pro Bono Author: Christine Van Aken & Rachel Horn
In December 2015, the Seattle City Council enacted into law Ordinance 124968, an Ordinance Relating to Taxicab, Transportation Network Company, and For-Hire Vehicle Drivers (Ordinance). The Ordinance was the first municipal ordinance of its kind in the United States, and authorizes a collective-bargaining process between “driver coordinators”—like Uber / Lyft—and independent contractors who work as for-hire drivers. The Ordinance permits independent-contractor drivers, represented by an entity denominated an “exclusive driver representative,” and driver coordinators to agree on the “nature and amount of payments to be made by, or withheld from, the driver coordinator to or by the drivers.” Seattle, Wash., Municipal Code § 6.310.735(H)(1). The Ordinance provides that the parties will negotiate in good faith regarding vehicle equipment standards; safe driving practices; the manner in which the driver coordinator will conduct criminal background checks of all prospective drivers; the nature and amount of payments to be made by, or withheld from, the driver coordinator to or by the drivers; minimum hours of work, conditions of work, and applicable rules. Id. § 6.310.735(H)(1). The City ultimately reviews the agreements and determines if they are in compliance with the Ordinance.
The Chamber of Commerce brought suit, challenging the Ordinance under the Sherman Act and NLRA. The district court dismissed the case, holding that the state-action immunity doctrine exempts the Ordinance from preemption by the Sherman Act, and that the NLRA does not preempt the Ordinance. The Ninth Circuit reversed the district court’s dismissal of the Chamber’s federal antitrust claims, but affirmed the district court’s dismissal of the Chamber’s NLRA preemption claims.
The Ninth Circuit noted that the City acknowledged on appeal that collective negotiations like these would constitute per se antitrust violations absent Parker immunity. The City argued that its actions were expressly authorized under Washington Law and that Parker immunity applied. The Ninth Circuit ruled that the Ordinance failed “the first prong of Midcal because the State of Washington had not ‘clearly articulated and affirmatively expressed’ a state policy authorizing private parties to price-fix the fees for-hire drivers pay to companies like Uber or Lyft in exchange for ride-referral services.”
The Ninth Circuit came to this conclusion by taking an extremely narrow reading of the “clear articulation” requirement given the fact that Washington enacted a statute with the intended purpose to “permit political subdivisions of the state to regulate for hire transportation services without liability under federal antitrust laws.” Wash. Rev. Code § 46.72.001. The Ninth Circuit reasoned that “[t]he plain language of the statute centers on the provision of ‘privately operated for hire transportation services,’ Wash. Rev. Code § 46.72.001, not the contractual payment arrangements between for-hire drivers and driver coordinators for use of the latter’s smartphone apps or ridereferral services.”
The Ninth Circuit also concluded that the Ordinance does not meet the active-supervision requirement for Parker immunity. The court reasoned that to meet the requirement, the supervision must come from the State itself, not from the municipality and here, the State plays no role in supervising or enforcing the City’s Ordinance.
The issue in this case is whether Parker immunity applies to Seattle’s Ordinance so as to prevent a Sherman Act violation?
Filed July 3, 2018 (Ninth Circuit)
Rodriguez v. City of San Jose
No. 17-17144
Pro Bono Author: Peter Pierce
In 2013, Edward Rodriguez suffered a mental episode at his home. His wife, Plaintiff Lori Rodriguez, called the police, and the San Jose Police responded. An officer detained Edward under California Welfare and Institutions Code (“W&I”) §5150, which provides that when probable cause exists that someone is a danger to him/herself or others as a result of a mental disorder, a police officer may take that person into custody for 72 hours for treatment / evaluation.
California W&I § 8102 provides: “Whenever a person, who has been detained or apprehended for examination of his or her mental condition or who is a person described in Section 8100 or 8103, is found to own, have in his or her possession or under his or her control, any firearm whatsoever, or any other deadly weapon, the firearm or other deadly weapon shall be confiscated by any law enforcement agency or peace officer, who shall retain custody of the firearm or other deadly weapon.” (emphasis added).
A San Jose police officer told Lori that he was required to confiscate guns in the house. He asked Lori to provide the combination to the gun safe in the house, and she complied. The officer confiscated eleven guns registered to Edward and one gun registered to Lori. Edward was admitted for a 72-hour hold and as a result is prohibited from owning or possessing firearms under Cal. W&I Code section 8103 for 5 years. Lori requested a return of the firearms to her so that she could store them in the home she shares with Edward.
The City petitioned the state court for a hearing under W&I Code §8102 to determine whether the guns should be returned to Edward. While that case was pending, Lori transmuted the guns into her separate property and registered them in her name. Lori then intervened in the City’s suit regarding the return of the guns and the parties agreed she had standing. Even though it was Lori petitioning the court for the return of the guns, the state court decided that the guns could not be returned because doing so would likely result in endangering Edward or others as Lori and Edward were married and lived together. (Edward had a history of domestic violence, mental illness, weighed 400 lbs. and had exhibited violent tendencies in front of the police and paramedics). The state court also rejected her Second Amendment claims, noting nothing in its order precludes her from keeping firearms in her home for protection (she just wasn’t entitled to these particular guns).
Thereafter, Lori filed suit in federal district court, claiming violations of the Second, Fourth, Fifth, and Fourteenth Amendments, and California Penal Code §33800 et seq. On the parties cross-motions for summary judgment, district court granted the City Defendants’ motion and denied Plaintiffs’ motion.
The issues before the Ninth Circuit are:
1. Whether the Second Amendment protects Lori Rodriguez’s right to possess specific firearms.
2. Whether the City Defendants’ confiscation of guns and decision not to return them to Lori is an unreasonable seizure under the Fourth Amendment.
3. Whether the City Defendants’ confiscation and retention of the guns is a taking of property without just compensation under the Fifth Amendment.
4. Whether the City Defendants violated Lori’s Fourteenth Amendment right to procedural due process by refusing to return the guns after the decision of the California Sixth District Court of Appeal, where the court of appeal stated that “the procedure provided by section 33850 et seq. for return of firearms in the possession of law enforcement remains available to Lori.” (Rodriguez, 2015 WL 1541988 at *8)
Filed June 28, 2018 (Ninth Circuit)
La Park La Brea LLC v. Airbnb
No. 18-55113
Pro Bono Author: Christi Hogin
Aimco owns and operates apartment buildings in Los Angeles County. Every Aimco tenant’s lease includes an anti-subleasing clause, which provides that the tenant shall not sublet the apartment for any length of time, including renting out the apartment using a short-term rental service such as Airbnb.com. Aimco alleges that Airbnb has brokered hundreds of subleases at Aimco’s properties, causing significant problems for full-time residents (and therefore for Aimco), including noise and safety concerns.
Airbnb claims that it is merely an “online platform” that “does not own, operate, manage or control accommodations,” and that it therefore would not take down the ads placed by Aimco’s tenants. Aimco filed suit alleging various tort causes of action, including intentional interference with the leases between Aimco and its tenants.
Airbnb filed a motion to dismiss, asserting immunity under section 230 of the Communications Decency Act (CDA), 47 U.S.C. § 230. The CDA precludes liability that treats a website as the publisher or speaker of information users provide on the website.” As the district court in explained, “[t]his grant of immunity applies only if the interactive computer service provider is not also an ‘information content provider,’ which is defined as someone who is ‘responsible, in whole or in part, for the creation or development of’ the offending content.”
Aimco argued that the immunity did not apply because (1) Airbnb is an “information content provider” that falls outside of the CDA’s grant of immunity; and (2) Aimco’s allegations were based on Airbnb’s own misconduct in contracting with and processing payments for Aimco’s tenants, not on Airbnb’s publication of listings by Airbnb hosts.
The district court disagreed with Aimco and granted the motion to dismiss, finding the CDA precluded liability for Airbnb. The district court distinguished Airbnb v. City and County of San Francisco (2016) 217 F.Supp.3d 1066, which held, in part, that the CDA did not preempt the City and County of San Francisco’s ordinance criminalizing the collection of fees for providing booking services for unregistered short-term rentals, because the ordinance did not regulate publication, but rather Airbnb’s collection of a fee for booking services. Aimco appealed.
The issue in this case is the breadth of immunity under the CDA and whether it should be afforded to information content providers like Airbnb.
Filed June 20, 2018 (Tenth Circuit)
Lech v. Jackson
No. 18-1051
Pro Bono Author: Diane Criswell
In this case, police were dispatched to a local Walmart to assist with a shoplifting investigation. What one would assume would be a benign situation, turned out to be extremely dangerous. While the officer was escorting the suspect to the store’s loss prevention office, the suspect fled the scene in a vehicle at a high speed. The officers found the vehicle abandoned, and a witness informed the officer that she saw the suspect with a semi-automatic pistol.
While the officers were pursuing the suspect a burglar alarm went off at the plaintiffs’ residence. All occupants of the home were able to flee unharmed (including a 9 year old boy) and officers positioned their vehicles in the driveway to block an attempt by the suspect to drive out of the garage. As one officer was getting out of his car, a bullet was fired from inside the garage and struck the police car’s hood. This was considered a “high-risk, barricade suspect situation,” given that there was an armed suspect who was refusing to surrender.
Officers tried numerous tactics to communicate with the suspect and to get him to leave the house. They spoke to him on his cell phone and via loud speaker, they had his family speak to him, they shut off the power and water, they tried shooting in gas munitions to get him to leave, they tried to send a robot into the house, but the suspect would not surrender. Many hours later, a tactical team was sent in to apprehend the suspect. When they attempted to reach the second floor of the house, the suspect fired at them several times and they were ordered to leave the home.
After another 7 hours of being unsuccessful in communicating with the suspect and getting him to leave the home, the commanding officer authorized the use of a BearCat to open holes in the back of the home. The purpose of this was to allow the officers to see into the home and locate the suspect, to make the suspect feel more exposed, and to create gun ports for snipers to shoot into the home if needed. After the holes were created, the commanding officer sent another tactical team into to apprehend the suspect and this time they were successful, and nobody was injured.
Because of the standoff, the plaintiffs’ home was rendered uninhabitable. The plaintiffs brought suit under Section 1983, claiming the police officers violated the Fifth Amendment by Taking their property without just compensation. The district court found in favor of the officers, concluding that courts have historically distinguished between eminent domain and police power and in this case, the police were clearly exercising their police power pursuant to an emergency situation for the protection of the public health, safety, and welfare.
The issue before the Tenth Circuit is: Whether the U.S. District Court properly granted summary judgment in favor of the Defendants on the grounds that because the Defendants destroyed the Plaintiffs’ property pursuant to their police powers, no just compensation is due under the Takings Clauses of the U.S. Constitution and Colorado Constitution.
Filed May 21, 2018 (Ninth Circuit)
Home Away v. Santa Monica
No. 18-55367
Pro Bono Author: Christi Hogin
For a long time, the City of Santa Monica prohibited short-term rentals in residential neighborhoods, both to preserve residential units for long-term residents, and to protect the character and aesthetics of those neighborhoods. In 2015, the City eased the prohibition, and allowed residents and property owners to rent portions of residential units so long as at least one permanent resident remained onsite throughout the stay, and the hosts complied with reasonable rules and regulations including licensing and payment of transient occupancy taxes. The Ordinance also placed restrictions on internet booking platforms, such as Home Away / Airbnb, prohibiting them from completing booking transactions for unlicensed short-term rentals within the City.
Airbnb and Home Away sought a preliminary injunction seeking to enjoin the City from enforcing the ordinance. The rental platforms argued that the ordinance violated the California Coastal Act, the Communications Decency Act, and the First Amendment. The district court denied their motion, finding that Plaintiffs had not established a likelihood of success on the merits of any claim. On the federal statutory and First Amendment claims, the district court followed the decision in Airbnb, Inc. v. City & County of San Francisco, 217 F.Supp.3d 1066 (N.D. Cal. 2016), which is identical to this case with respect to all federal claims. The Court further affirmed that the City’s constitutional authority to regulate local land use is not preempted by the Coastal Act.
On appeal, the companies argue the following: (1) the ordinance is preempted by the Communications Decency Act’s broad immunity to online marketplaces for third party listings; (2) the ordinance violates the First Amendment as it is a content-based regulation of commercial speech and strict scrutiny should apply; and (3) the California Coastal Act preempts the ordinance because the City did not seek the California Coastal Commission’s approval to enact its ordinance.
The issues in this case are: 1) Does the ordinance violate the First Amendment; and (2) is the ordinance preempted by either federal or state law?
Filed May 7, 2018 (Eleventh Circuit)
Bank of America v. Miami
No.
Pro Bono Author: Justin Steil
The City of Miami brought a claim under the Fair Housing Act (FHA) against Bank of America, alleging that it engaged in a decade-long pattern of discriminatory lending in the residential housing market that caused the City economic harm. The City claims that the bank targeted black and Latino customers in Miami for predatory loans that carried more risk, steeper fees, and higher costs than those offered to identically situated white customers, and created internal incentive structures that encouraged employees to provide these types of loans.
The City alleged that by steering minorities toward these predatory loans, Bank of America caused minority-owned properties throughout Miami to fall into unnecessary or premature foreclosure, depriving the City of tax revenue as property values decreased and also simultaneously forcing the City to spend more on municipal services such as police, firefighters, trash and debris removal, etc., to combat the resulting blight.
The City used statistical analyses in its complaint to allege that the Bank’s conduct violated the Fair Housing Act in two ways. First, the City alleged that the Bank intentionally discriminated against minority borrowers by targeting them for loans with burdensome terms. Second, the City claimed that the Bank’s conduct had a disparate impact on minority borrowers, resulting in a disproportionate number of foreclosures on minority-owned properties, and a disproportionate number of exploitative loans in minority neighborhoods.
The Supreme Court heard this case and confirmed that the City of Miami’s alleged injuries “fall within the zone of interests that the [Fair Housing Act] protects.” However, the Court rejected “foreseeability” alone as a sufficient standard for establishing proximate cause under the FHA. The Court remanded to the Eleventh Circuit to “define, in the first instance, the contours of proximate cause under the FHA,” noting that proximate cause requires “some direct relation between the injury asserted and the injurious conduct alleged.”
The issue in this case is how to define causation under the FHA under these circumstances.
Filed May __, 2018 (California Supreme Court)
Quigley v. Garden Valley Fire Protection District
No.
Pro Bono Author: Daniel P Barer
This case concerns whether statutory immunity must be alleged as an affirmative defense and is a procedural question of first impression at the California Supreme Court.
In this case, a Forest Service firefighter was severely injured when a water truck ran over her as she slept at a base camp during a wildfire fighting assignment. She sued the Garden Valley Fire Protection District, Chester Fire Protection District, and two of their employees for damages, claiming she was injured because of their negligence, a dangerous condition of public property, and defendants’ failure to warn.
Following the plaintiff’s opening argument at trial, the district moved for nonsuit, asserting immunity under the California Claims Act Section 850.4 and the common law firefighter’s rule. Plaintiff’s counsel objected, claiming that immunity under 850.4 was waived because it had not been asserted during pleadings.
The trial court ultimately granted the district’s motion, holding that statutory immunity had not been waived. The appellate court also agreed that immunity under Section 850.4 is jurisdictional and may be raised at any time.
The question before the California Supreme Court is whether, as the Court of Appeal held, the governmental immunity set forth in Government Code section 850.4 may be raised for the first time at trial.
Filed ____, 2018 (Florida Supreme Court, Petition for Review)
City of Miami Beach v. Florida Retail Federation, Inc.
No.
Pro Bono Author:
In 2003, the Florida legislature enacted section 218.077 of the Florida Statutes, which established that the federal minimum wage was the minimum wage for the state of Florida. Subsection (2) of the statute preempted local government ordinances that sought to raise the minimum wage above the federal minimum wage. One year later, Florida voters passed, via a citizen initiative, an amendment to the Florida Constitution, Article X, Section 24, which established a higher statewide minimum wage than the federal minimum wage. The Amendment contained the following language: “This Amendment provides for payment of a minimum wage and shall not be construed to preempt or otherwise limit the authority of the state legislature or any other public body to adopt or enforce any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits, or that extends such protections to employers or employees not covered by this amendment.” (emphasis added)
Thereafter, the City of Miami Beach enacted an ordinance providing for a higher minimum wage than the one set forth in Article X, Section 24. A number of retail associations sued the City, claiming the ordinance was preempted by the Florida legislature. The City argued that the 2004 constitutional amendment nullified the preemption provision in the 2003 statute.
The appellate court rejected that argument, holding that section 218.077(2) of the Florida Statutes preempts political subdivisions in the state from establishing a minimum wage and that Article X, Section 24 of the Florida Constitution did not invalidate the preemption provision. The court reasoned that the amendment’s text contained no express limitation to the preemption provision.
The issue on appeal is whether the Florida statute preempting local governments from adopting higher minimum wage laws was invalidated by the later Florida Constitution Amendment?
IMLA has submitted a notice of intent to file an amicus brief and will file a brief if the Florida Supreme Court accepts review.
Filed April 14, 2018 (Pennsylvania Supreme Court)
Filed March 10, 2017 (Commonwealth Court of Pennsylvania)
Williams v. City of Philadelphia
No. 2077 and 2078
Pro Bono Authors: William Leonard & Rigel Farr
Philadelphia seeks to implement its PBT, which was passed in June 2016. The PBT would impose a 1.5 cent tax per fluid ounce by distributors to dealers on the transfer of sugar sweetened beverages (SSBs). PBT states that the tax is imposed only when the “supply, acquisition, delivery or transport is for the purpose of the dealer’s holding out for retail sale within the City the [SSB]. . ..” Generally, distributors are responsible for the payment of the tax to the City; however, if the distributor does not pay, the dealer is responsible for the payment. Consumers are not responsible for the tax (though distributors like Coca Cola may decide to increase prices as a result of the tax). The PBT’s definition of SSB specifically excludes things like baby formula, medical food, milk, and products which contain more than 50% fruit and/or vegetables as well as products that a purchaser can add sugar to at the point of sale.
Plaintiffs, who are retailers and beverage and food associations filed suit, seeking injunctive and declaratory relief to invalidate the law, claiming that it is preempted by state and federal law.
In Pennsylvania, the Sterling Act empowers the City of Philadelphia to levy and assess certain taxes for general revenue purposes under certain restrictions. The district court held that while the purpose of the Sterling Act is to prohibit double-taxation, Philadelphia’s PBT was not preempted by the law simply because a business is taxed on certain aspects of its operations by the Commonwealth’s Sales and Use Tax. Instead, the court noted, the Sterling Act only prohibits a local government from imposing a tax on the same aspects of a business that is also being taxed by the Commonwealth. The district court reasoned that the respective taxes apply to “two different transactions, have two different measures and are paid by different taxpayers,” even though the Sales and Use tax also applies to soft drinks. Notably, the PBT only applies when SSBs are distributed to the dealer, regardless of whether the dealer sells the product to the consumer, whereas the Sales and Use tax is imposed at the retail level and paid by the consumer.
The district court similarly held that the law was not preempted by SNAP (the Supplemental Nutrition Assistance Program) because again, it does not impose a tax on the consumer, but rather on the distributor.
The issue on appeal was whether the City’s law is preempted by the Commonwealth’s Sales and Use tax and/or federal law (SNAP). The Commonwealth Court held in favor of the City, concluding that the PBT was not preempted by state or federal law.
Filed March 30, 2018 (Ninth Circuit)
Agua Caliente Indian Tribe v. Riverside County
No. 17-56003
Pro Bono Author: Jennifer Henning
The Agua Caliente Band of Cahuilla (the Tribe) is a federally recognized tribe located in Riverside County, California. The tribe and its individual members occupy many parcels of land spread out across the county and within Palm Springs’ city limits. Tribal members within the county have leased allotted tribal land for commercial and residential uses. As an example, such leasehold interests account for about half of downtown Palm Springs. Because the tribe’s land is thoroughly integrated into the local community in a phenomenon known as “checkerboarding,” the county provides services for all community members and properties—regardless of a property’s tribal affiliation or land trust status.
To fund its services, Riverside collects a 1% possessory interest tax (PIT), which includes private possessory interests on tribal land. It distributes a large portion of this revenue to other tax entities within the county including parts of the Tribe’s reservation. Local education-entities receive the largest percentage of the revenue.
California’s tax code provides that private leaseholds on reservation land are subject to the tax and the underlying Indian interests in the land are tax-exempt. Under Section 465 of the Indian Reorganization Act (IRA), lands acquired pursuant to the IRA that are held in trust for Indian tribes by the United States are entirely exempt from state and local taxation.
The Tribe filed in Federal District Court to prevent the County from applying its PIT to leasehold interests, contending that the IRA preempts California’s tax law.
The district court ruled in favor of the County on MSJ. Because most of the tribal land in the county was acquired through several earlier executive orders rather than the IRA, Section 465 was deemed inapplicable. The Court also rejected the Tribe’s argument that Section 465 should be liberally construed in favor of tribal sovereignty. Further, in applying the Bracker balancing test, which weighs the value of federal preemption against state, local and/or tribal interests at issue, the court determined that the state’s interest in the large number of public services it provided on and around the land in question outweighed any competing tribal or federal interests. See 448 U.S. 136 (1980).
The issues in this case are:
(1) Whether federal law preempts California law authorizing taxes to be applied to possessory (leasehold) interests on land held in trust for Indian tribes
(2) Whether Riverside County’s application of its ad valorem tax to private possessory interests on reservation land constitutes an unlawful infringement on the Tribe’s sovereignty
In a great win for Riverside County, the Ninth Circuit upheld the County’s right to assess and collect a possessory interest tax from non-Indian lessees of Indian trust lands. This case, Agua Caliente Band of Cahuilla Indians v. Riverside County, was important to IMLA due to our interest in preventing unwarranted preemption of local laws as well as our concern that the loss of tax revenue for the Riverside County and potentially other local governments in the Ninth Circuit would be extremely disruptive. Local governments in California are restricted in their ability to raise revenue. Thus, without a way to raise enough revenues through other sources, counties would be expected to provide services to their residents such as public safety, emergency response, water delivery, parks and recreation while facing an economic deficit. Thank you to Jennifer Henning with the California State Association of Counties for her excellent work on the amicus brief on behalf of IMLA and CSAC in this case. To view the decision, click here.
Filed February 16, 2017 (Georgia Intermediate Court of Appeal)
Stanford v. City of Albany
No.
Pro Bono Author: Rusi Patel
Deceased, LeSheldon Kernard Stanford, was severely beaten by multiple private individuals, after which he was shot and killed in February 2010 outside a private business, Brick City. Brick City essentially functioned as a nightclub with documented code violations and a reputation for hosting numerous fights, shootings, assaults, illegal sale and distribution of drugs and alcohol and other unlawful activities. Since January 2008, the police had arrested individuals on five occasions and had recovered numerous illegal drugs and weapons from the facility. In July of 2008, Albany’s code enforcement department recommended Brick City’s occupancy license be revoked based on criminal activity known to code and law enforcement. Soon thereafter, however, the Dougherty County District Attorney’s office requested that the City stop the proposed closure proceeding in order to allow a covert criminal investigation to be conducted.
On the night of the shooting, Stanford attended the venue with several family members. Through the course of the evening, several fights broke out at Brick City, resulting in crowds being disbursed outside the venue. While outside the venue, Stanford was beaten and then shot and killed by private individuals while unarmed. At the time of the shooting, the owners and operators of Brick City, Mr. and Mrs. Loving, did not have a valid licensing authorizing the sale and distribution of alcohol. The venue’s occupant tax certificate was ultimately revoked at an emergency board meeting two days after Stanford’s death.
Stanford’s parents have sought to hold the City of Albany accountable for the actions of the private individuals that caused Stanford’s death by bringing a nuisance claim against the city, citing the city’s refusal to close down the business as a main contributor towards their son’s death. Under Georgia law, municipal corporations can be liable for creating or maintaining “nuisances,” which is broadly defined by statute as a reoccurring condition that causes special damage, hurt, or inconvenience.
At trial, the jury awarded Stanford’s parents $15.2 million. The City of Albany is being held 70% liable for failing to abate the nuisance caused by Brick City.
The issue on appeal is whether the City’s inaction with regard to revoking a business’s occupancy tax certificate amounts to the maintenance of a nuisance.
Filed February 12, 2018 (Ninth Circuit)
No. 17-17478 and 17-17480
Filed June 28, 2017 & March 23, 2017 (California District Court)
No. 3:17-cv-00485
San Francisco v. Trump
Pro Bono Author: Brett Schuman, Neel Chatterjee, & Brian Burgess
Status: The district court judge entered a nationwide injunction on April 25, 2017 and denied the federal government’s motions to dismiss and for reconsideration on July 20, 2017. In November, the district court entered a permanent injunction.
On January 25, 2017, President Trump signed Executive Order 13768: Enhancing Public Safety in the Interior of the United States (the “EO”). The EO provides in pertinent part:
Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373. (a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.
Notably, Sanctuary Jurisdictions are not defined in the EO. 8 U.S.C. 1373 provides that local governments may not prohibit or restrict any government entity or official from “sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status . . . of any individual.”
San Francisco laws limit when city employees and agencies may assist with the enforcement of federal immigration laws. These laws generally prohibit city employees from using city funds or resources to assist in the enforcement of federal immigration law, unless required by federal or state law. They specifically prohibit local law enforcement officers from cooperating with Immigration and Customs Enforcement (“ICE”) detainer requests, which are voluntary, and limit when local law enforcement officers may give ICE advance notice of a person’s release from local jail. (By way of background, ICE detainer requests generally require jurisdictions to hold an individual for up to forty-eight hours excluding weekends and holidays). See 8 C.F.R. § 287.7(d).
San Francisco filed suit seeking declaratory and injunctive relief that the EO and Section 1373 violate the Tenth Amendment and that the federal government should be enjoined from enforcing the unconstitutional aspects of the EO as applied to sanctuary cities.
IMLA submitted an amicus brief focusing on: (1) issues relating to local government autonomy / sovereignty; and (2) the fact that the EO potentially requires local governments to violate the Fourth Amendment by requiring them to hold those suspected of illegal immigration pursuant to ICE detainers for up to forty-eight hours even if they lack probable cause to do so.
The federal district granted San Francisco’s motion for a preliminary injunction, concluding that the Executive Order was likely unconstitutional on a number of grounds. The court noted that: “[t]he Executive Order uses coercive means in an attempt to force states and local jurisdictions to honor civil detainer requests, which are voluntary ‘requests’ precisely because the federal government cannot command states to comply with them under the Tenth Amendment.”
After the Attorney General issued a memorandum interpreting the Executive Order, the federal government filed a motion to dismiss and a motion for reconsideration of the judge’s order and IMLA again filed an amicus brief again supporting the City and the judge denied the federal government’s motion for reconsideration / motion to dismiss. The judge then entered a permanent injunction, which has been appealed to the Ninth Circuit.
Filed January 29, 2018 (Ninth Circuit)
Americare Medservices, Inc. v. City of Anaheim, et. al
No. 17-55565
Pro Bono Author: Adam Hofmann
Plaintiff, Americare Medservices, sued twelve cities in Orange County, California after each city rejected plaintiff’s request to be placed on the city’s emergency ambulance service rotation. Plaintiff alleged that each city abused its police and regulatory powers under the Sherman Antitrust Act (Sherman Act) (15 U.S.C. § 1-7) in designating a single provider of emergency ambulance services in its geographical area.
The cities asserted immunity to the Sherman Act claims under Parker v. Brown, 317 U.S. 341 (1943) (Parker immunity / state action immunity). Parker immunity exempts anticompetitive conduct “engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulations or monopoly public service.”
The district court agreed that Parker immunity applied and found that the Emergency Medical Services System and the Prehospital Emergency Medical Care Personnel Act (EMS Act) (Cal. Health & Safety Code § 1797 et seq.) expressly declare the State’s intent to extend state action immunity under federal antitrust laws to “local governmental agencies” carrying out their prescribed functions under the EMS Act. (Cal. Health & Safety Code § 1797.6(b).) The district court further noted that the EMS Act permits eligible cities to continue administering prehospital emergency medical services indefinitely. (Cal. Health & Safety Code § 1797.201.)
The district court rejected plaintiff’s argument that it should recognize a market participant exception to Parker immunity which would apply where a state acts “not in a regulatory capacity but as a commercial participant.” The district court concluded that even if such an exception existed, the exception would not apply where the state is performing its traditional government functions, which include the operation of emergency ambulance services.
The issues on appeal are: (1) Should local governments be afforded Parker immunity for designating a single provider of ambulance services; and (2) Should the court recognize a market participant exception to Parker immunity?
Filed January 17, 2018 (Tennessee Supreme Court)
Jetmore v. Metropolitan Government of Nashville & Davidson County
No. M2016-01792
Pro Bono Author: Shauna Billingsley
Due to the extremely high volume of requests from commercial requestors / data miners for copies of accident reports, Nashville’s police department (“Metro”) implemented a policy of handling large-volume copy requests during off-peak hours, so that records staff could handle small requests right away (3 copies) with the remaining copies being made later, during off-peak hours. These high-volume copy requests are particularly time consuming because Metro is required to redact out protected information (driver’s license numbers, juvenile information, social security numbers, etc.). This information must be manually redacted and takes 3-5 minutes per report.
Metro implemented this policy under Tenn. Code Ann. § 10-7-506(a), which provides that local governments have the right to make and enforce their own rules regarding the making of copies (which is different than inspections, which are handled under 10-7-503(a)(2)(B), which requires that these records must be “promptly” made available). Metro ensures that its accident reports are available for public viewing within one week after it has been approved (though in practice the time period is often much shorter), which is consistent with the inspection provision of the Act.
The Plaintiff in this case operates a business where he routinely makes large-volume requests for copies of traffic accident reports. (Plaintiff uses the contact information he gathers from the reports (names, addresses, and telephone numbers) to solicit business. On January 13, 2016, when Plaintiff began making copy requests, he asked for eighty (80) separate accident reports at once. Accordingly, pursuant to the policy, three of the reports were redacted and printed for Plaintiff on that day, with the other reports to be redacted and printed later during off peak-hours.
Plaintiff sued, claiming that Metro’s policy of making copies during off-peak hours violated the Public Records Act. The Tennessee Court of Appeals ruled that copies and inspections are to be treated exactly the same under the Tennessee Public Records Act and ruled that Metro’s policy constitutes a violation of the that Act (and also awarded attorneys’ fees, in the amount of about $120,000).
The issue in the petition for review by the Tennessee Supreme is: “Should this Court grant certiorari to hear a split-division issue involving whether local governments may manage large-volume, commercial requests for copies of accident reports during off-peak hours, so that individuals who request their own accident reports may be served during regular business hours?”
Filed January 2, 2018 (Seventh Circuit)
Filed August 31, 2017 (N.D.Ill)
City of Chicago v. Sessions
No. 1:17-cv-5720
Pro Bono Author: Laura Tice & Katherine O’Brien
Held: The Seventh Circuit upheld the preliminary injunction against the Department of Justice’s imposition of the unlawful grant conditions.
The Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) provides financial support for local government law enforcement agencies around the country. Through a press release, the Department of Justice announced that it would be imposing new conditions on Byrne JAG grantees, including requiring grantees to: (1) certify compliance with 8 U.S.C. §1373; (2) allow federal officials the access to local government facilities to interrogate arrestees (“access” condition); and (3) provide at least 48 hours’ notice to federal officials prior to an arrestee’s release if immigration authorities have issued a detainer request for that individual (“notice” condition).
Chicago brought suit seeking a preliminary injunction against the Attorney General from imposing new conditions to the Byrne JAG. Chicago alleges that the conditions are inconsistent with the limitations imposed by the Constitution’s Spending Clause, the Fourth Amendment and basic separation of powers principles. The district court issued a preliminary injunction against the DOJ from enforcing the “notice” and “access” conditions, but denied Chicago’s request for an injunction on the 1373 compliance certification. The case is pending appeal to the Seventh Circuit.
Filed December 29, 2017 (California Supreme Court)
Boling v. Public Employment Relations Board
No. S242034
Pro Bono Author: Arthur Hartinger
This case pits two California laws against each other and puts the local government in the middle, with the potential for liability on either side, depending on how the California Supreme Court will rule. Specifically, a local government’s obligation to put a properly verified citizen’s initiative on a ballot versus a local government’s obligation to meet-and-confer with a Union.
Interest groups developed a Comprehensive Pension Reform Initiative (CPRI) to replace the City of San Diego’s defined benefit plan with a 401(k)-style defined contribution plan for new employees. Jerry Sanders, the then-Mayor of San Diego, was a supporter of the initiative and proposed developing such a 401(k)-style plan through a citizen’s ballot initiative rather than going through the City Council. A City Councilmember also announced that he was putting forth a pension reform plan. The final initiative proposal put forth by interest groups melded the two proposals.
These private interest groups then circulated a petition to have the CPRI placed on the ballot and received the requisite signatures to do so. After the County verified the petition, the City Council placed it on the ballot as Proposition B, without change, as required by California law. City employee unions then demanded to meet-and-confer over Prop B pursuant to California’s collective bargaining law – the Meyers-Milias-Brown Act (MMBA). By way of background, under California Supreme Court precedent, Seal Beach, 36 Cal.3d 591 (1984), before a governing body may place a charter amendment on the ballot, it must first comply with the meet-and-confer obligations under the MMBA. Believing it had no obligation to meet-and-confer over a citizens’ initiative, the City refused the unions’ demands.
After Prop B passed with 67% of the vote, the Unions filed unfair practice charges with California’s Public Employment Relations Board (PERB), alleging, among other things, that the citizens’ initiative was used by the Mayor as a sham device to bypass the City’s obligation to meet-and-confer. PERB agreed and issued a decision holding that the City violated the MMBA by refusing to meet-and-confer and further determined that, because City violated this purported obligation, PERB could order “make whole” remedies that de facto compelled City to disregard the CPRI.
The City appealed, and the Court of Appeal reversed. PERB argued that its decision should be afforded deference given its specialized knowledge and expertise, however the Court of Appeal rejected that argument given that PERB’s ruling rested on agency principles, of which it has no specialized knowledge, and it therefore undertook de novo review.
On the merits, the Court of Appeal concluded the meet-and-confer requirements of the MMBA do not apply to citizen initiatives (only those initiated by the City). The court rejected PERB’s determination that the participation by a few government officials and employees in drafting and campaigning for a citizen initiative somehow converted it into a governing-body-sponsored ballot proposal via agency principles. The court reasoned that although the Mayor and a few other elected and non-elected city employees supported the CPRI, it was never approved by the governing body (i.e., the City Council) and was therefore not a government-body-sponsored charter amendment.
The issues before the California Supreme Court are: (1) When a final decision of the PERB under the MMBA is challenged in the Court of Appeal, what standard of review applies to the PERB’s interpretation of the applicable statutes and its findings of fact? (2) Is a public agency’s duty to “meet and confer” under the MMBA limited to situations in which the agency’s governing body proposes to take formal action affecting employee wages, hours, or other terms and conditions of employment?
Filed December 7, 2017 (Fourth Circuit)
Davison v. Rose
No. 17-1988
Pro Bono Author: Rodney Smolla
The issue in this case is whether a public official’s personal Facebook page should be treated, for First Amendment purposes, as a public forum. Two federal district courts in Virginia reached opposite conclusions within a few days of each other and both cases are being appealed to the Fourth Circuit. IMLA submitted amicus briefs in both cases arguing that a public official’s personal social media page should not be considered a public forum.
Filed November 22, 2017 (Ninth Circuit)
Silva Jr., v. City & County of Honolulu et. al.
No.
Pro Bono Authors: Adam Rosenberg & Dan Lloyd
Around 8 pm police responded to a call about an individual dressed all in black walking down the middle of a busy 6 lane roadway. When they ordered him to move to the sidewalk, he ran away, but continued to remain in the middle of the street, which still had a good amount of traffic on it (though exactly how busy it was is disputed, though likely not material). After trying unsuccessfully to catch him, the officers warned they would use pepper spray. When he did not comply, they utilized pepper spray, which had no effect on him and he continued to run away while remaining in the middle of the busy street. They then warned him they would tase him. One officer tried to tase him, but the individual did not fall to the ground at first. After the third time that the officer deployed his Taser, the suspect fell to the ground.
Eventually the officers subdued him, got his hands behind his back and cuffed him though he continued to resist the entire time. They brought him to the side walk where he lost consciousness. They immediately provided medical care and called paramedics. He was brought to a hospital, but died 12 hours later.
The parties dispute whether the Taser made contact with the deceased. The officers claim that the Taser / barbs never actually made contact with him and that he tripped (which is why he ended up on the ground). The medical examiner also testified that none of the barbs actually made contact with him. The suspect’s estate disputes that fact as does their expert.
The medical examiner indicated that the interaction with the police was a “minimal” cause of death, whereas the illegal drugs (methamphetamine) was a moderate to marked (most severe) cause of death and an enlarged heart was slight to moderate cause of death.
The deceased’s estate brought a Section 1983 claim against the officers for excessive force, claiming that the multiple uses of the pepper spray and the Taser were unreasonable as a matter of law and that they should not be entitled to qualified immunity.
The district court found that disputed material facts about whether the Taser shocked the deceased (and therefore the amount of force used/nature of the intrusion) precluded the officer’s motion for summary judgment and for qualified immunity. The court similarly found that because whether the law is clearly established for the purposes of qualified immunity is a fact specific inquiry, it could not grant the officers qualified immunity with regard to either their use of the pepper spray or Taser when there were disputed facts.
While the exact issue on appeal has not been formulated, the City will likely argue that even assuming the evidence in light most favorable to Plaintiff (that he was Tased and fell to the ground), the Officers acted reasonably. Further, given the fact that decedent was standing in the middle of a busy roadway and evading arrest, the Officers are entitled to qualified immunity because the law was not clearly established at the time of the incident as the other Taser cases are significantly different from the facts in this case.
Filed November 13, 2017 (Ninth Circuit Petition for Rehearing En Banc)
Estate of Lopez v. Gelhaus & County of Sonoma
No.
Pro Bono Author: David Nefouse
Sonoma County Sheriff’s Deputies Gelhaus and Schemmel were patrolling an area of the county known for gang activity in the afternoon. Gelhaus noticed an individual walking on the sidewalk about 100 feet away from them in the opposite direction carrying what he believed to be an AK-47 with the muzzle pointed toward the ground. From that distance, they could not tell his age though they believed he was an older teen. Schemmel drove toward Andy and flipped on his emergency lights and “chirped” the siren and parked about 40 feet from the teen. Gelahus got out and drew his pistol and positioned himself in the V of his open door and knelt on the ground for cover. He yelled loudly at the teen, who had continued walking and was now about 60 feet away, “Drop the gun!” The parties do not dispute that the teen did not drop the gun, and instead started to rotate his body toward the officers while continuing to hold the gun.
Though the parties dispute exactly what happened next, both officers indicated that the weapon was starting to come up as the teen turned toward the officers. Gelahus fired a number of shots and killed the teen. The plaintiffs’ expert disputes that the gun was starting to come up. The total amount of time elapsed from the police car’s “chirp” until the shots were fired was twenty seconds.
The district court denied qualified immunity, concluding that a jury could have found Gelhaus acted unreasonably when viewing the evidence in the light most favorable to the teen. Specifically, the district court concluded that the riffle barrel was beginning to rise, but that at the time Gelhaus shot the teen, the riffle barrel was not at a level that compelled the conclusion that the officers were threatened with imminent harm.
Noting that it grants summary judgment “sparingly” in excessive force cases, particularly where the “only witness other than the officers was killed during the encounter,” the Ninth Circuit upheld the denial of qualified immunity. In so holding, the Ninth Circuit relied on a number of immaterial facts in coming to the conclusion that the teen was not an immediate threat to the officers’ safety and therefore under the Graham factors, qualified immunity was inappropriate. These factual disputes included: 1) whether the teen looked over his shoulder when the officers “chirped” the police siren; 2) how many times Gelhaus shouted to drop the gun (the court accepted there was at least 1 shout); 3) which hand the teen was holding the gun in; and 4) the movement of the teen’s gun. On this last point, the Ninth Circuit noted that it must accept the facts the district court assumed in denying summary judgment, and here the district court made an express factual finding that “the rifle barrel was beginning to rise; and given that it started in a position where it was pointed down at the ground, it could have been raised to a slightly-higher level without posing any threat to the officers.”
The dissent sums up the problem with the majority’s opinion: “The majority opinion exhaustively recounts the facts of the case, but for me, they are largely irrelevant. One critical fact—the upward motion of the fake gun—resolves the qualified immunity issue in Deputy Gelhaus’s favor. …I agree with the majority, therefore, that the precise angle at which Andy pointed the gun is a disputed fact, but as I explain below, that is not material to the qualified immunity analysis.”
The dissent goes on to explain that the majority incorrectly characterized the situation as the teen merely standing on the sidewalk holding a gun that was pointed down on the ground, which is qualitatively different than what the undisputed facts actually showed – i.e., the gun was rising. Finally, the dissent criticizes the majority for creating a “novel rule—that we must accept as true all facts not conclusively disproved by evidence in the record even if those facts have no evidentiary support of their own—”and notes that such a rule “is plainly wrong.”
The issues in this case are: 1) whether the officers violated the deceased’s Fourth Amendment rights by employing deadly force under the circumstances where the teen was turning toward them holding what they reasonably believed was an assault rifle as the gun barrel was starting to rise; and 2) Even if they did, whether the law was clearly established at the time of the events.
Filed November 7, 2017 (Fourth Circuit)
Davison v. Loudoun County Board of Supervisors, et al.
No. 17-2002
Pro Bono Author: Rodney Smolla
The issues in this case are: (1) When is a social media account maintained by a public official considered “governmental” in nature, subjecting it to constitutional constraints?; and (2) Was the law clearly established at the time the Defendant banned the Plaintiff from her Facebook account such that she was not entitled to qualified immunity?
The Defendant, Phyllis Randall is the Chair of Loudoun County Board of Supervisors. In December 2015, the day before she was sworn into office, she created the “Chair Phyllis J. Randall” Facebook page. Her purpose in creating the Facebook page was to address County residents and generally uses it to share information of interest with the County. The “about” section of the Facebook page indicates that she is a “government official” and uses her county contact information. She used the page to request constituents to contact her and also solicited participation in initiatives she was running in her governmental capacity and posted about events that she participated in as a county official.
However, she created the page outside the County’s official channels and when she leaves office, the page will not revert to County control and she uses her personal devices to post on the Facebook page during her own time. She also posts items of a personal nature, such as personal congratulatory notes, posts about a shopping trip, etc.
In addition to the Chair Phyllis Randall Facebook page, Randall also maintains a personal Facebook page, which she discusses family matters, and a “Friends of Phyllis Randall” page, which she generally uses to discuss politics.
At a public meeting in February 2016, Plaintiff attended a panel discussion and anonymously submitted a question concerning ethics pledges for public servants. Randall volunteered to answer the question.
At some point that evening, the Defendant posted about the panel discussion on her “Chair Phyllis J. Randall” Facebook page. Plaintiff then commented on her post. Plaintiff doesn’t recall the content of his comment. Randall recalls that it included an allegation of corruption on the part of Loudoun County’s School Board involving conflicts of interest and their family members. (The Plaintiff was embroiled in a dispute with the local school board and other officials, including the principal of his children’s school, and filed a number of lawsuits against them and had threatened them to the point that he had been barred from the school and there were separate lawsuits related to those proceedings not at issue in this case). Randall concluded that she did not want to leave his allegations on her Facebook page and therefore chose to delete the entire post, including his comment. She then banned the Plaintiff from the Chair Phyllis Randall Facebook page, but the following morning (no more than 12 hours later) she reconsidered her decision to ban him and “unbanned” him.
The Plaintiff brought suit against Randall under § 1983, alleging that she violated the First Amendment when she banned him from her Facebook page for a period of 12 hours. He also brought suit under § 1983 against the County, claiming it had a custom, policy, or practice that brought about the constitutional violation.
The district court dismissed all counts against the County and against Chair Randall in her official capacity. The district court concluded, however, that under the totality of the circumstances, Randall was acting “under the color of state law” in maintaining the Facebook page “Chair Phyllis J. Randall” and banning the Plaintiff from that page violated the First Amendment in her individual capacity. Regarding the First Amendment claim, the court concluded that Randall had created a public forum with her Facebook page. The court did not determine what type of forum (traditional, limited, etc.) because it found that she had engaged in viewpoint discrimination by banning the Plaintiff from her page.
Notably, the court did not mention, let alone consider, whether the law was clearly established and therefore, whether Randall was entitled to qualified immunity. (Though this issue was argued by Randall).
Filed October 23, 2017 (Fifth Circuit)
City of El Cenizo, Texas, et. al v. State of Texas
No. 17-50762
Pro Bono Author: Laura Trice / Katherine O’Brien
The State of Texas passed a law that imposes a number of immigration enforcement related restrictions on local governments in Texas, including a requirement to honor federal immigration detainers. Local governments and their officials are also prohibited under the law from adopting, enforcing, or endorsing a policy under which the entity prohibits or materially limits the enforcement of immigration laws. Local officials who violate the law are subject to fines and removal from office.
A number of jurisdictions in Texas filed suit arguing, among other things, that the law violated the First Amendment to the extent that it prohibited a local government official from voicing opinions related to immigration enforcement. The local governments also argued that the law’s requirement that they honor federal civil immigration detainer requests, regardless of whether they are supported by probable cause and issued pursuant to a warrant, violates the Fourth Amendment.
The Fifth Circuit largely upheld the Texas law. Specifically, it upheld the requirement to honor ICE Detainer requests and cooperate with immigration officials. However, it held that the portion of the law that prohibited local officials from endorsing a law or policy which materially limits the enforcement of immigration law violated the First Amendment.
Filed October 19, 2017 (E.d.Pa)
City of Philadelphia v. Sessions
No. 2:17-cv-03894
Pro Bono Author: Laura Trice / Katherine O’Brien
Philadelphia also brought suit against the Attorney General based on the same Byrne JAG conditions and made similar arguments as the City of Chicago. Philadelphia also sought a determination that it complies with §1373. The federal district court ruled in favor of the City, finding that it complies with §1373. The Department of Justice appealed to the Third Circuit.
Filed October 6, 2017 (Missouri Appellate Court)
Sophian Plaza Association, et. al. v. City of Kansas City
No.
Pro Bono Author: Allen Garner
This case involves the question of whether the city can contract away its police powers indefinitely, binding all future legislative decisions regarding the city’s trash removal.
In 1971, the city enacted an ordinance that provided for the collection of solid waste from all residences except those with 7 or more dwelling units (i.e., apartment buildings and trailer parks). Two groups of apartment building owners sued the city at the time, claiming that ordinance was unconstitutional. During the pendency of the proceedings, the parties settled their lawsuit and filed with the court a stipulation and agreement stating that the city would treat all its residents equally by agreeing to either provide trash collection services to everyone or to provide a cash equivalent to owners of the apartment buildings / trailer parks (the “trash rebate program”). The court incorporated the terms of the stipulation and agreement into its judgment and made the provisions mandatory. The city opted to pay the rebate to these owners and did so for decades, regardless of whether the owners were a part of the original lawsuit.
Beginning in the 1990s and continuing into the early and mid-2000s, the city began studying and analyzing the financial impact of the trash rebate program to the apartment dwelling owners in the system. In 2010, the city opted to terminate the trash rebate program, via an ordinance it adopted, as a means to address the city’s financial circumstances, thereby saving the city approximately 1.4 million dollars per year.
Condo associations brought a class action alleging civil contempt against the city based on its repeal of the trash rebate program.
The district court found that the city knowingly, intentionally, and deliberately chose not to comply with the 1977 court order when it eliminated the trash rebate program. The court further found the stipulation and agreement was a valid and enforceable contract and that the city was in breach of the contract and contempt of court. The court entered a judgment against the city for over $10,000,000 plus over $4,000,000 in attorney’s fees and costs, and 9% interest.
The issues on appeal that IMLA’s brief focused on are: (1) Whether the city can contract away its police powers such as trash collection; and (2) Whether the court order impermissibly bound future legislative decisions.
Filed October 3, 2017 (Eleventh Circuit)
Kondrat’yev v. City of Pensacola
No. 3:16-cv-00195
Pro Bono Author: Michael Buschbacher
In the early 1940’s a cross was erected in a city park. As time passed, the cross remained and amphitheater was constructed around it and some churches began using the area for Easter Sunrise services. The city maintains the cross/property at about $233 per year. The city issued permits for church’s use and one of the Plaintiffs in this case also received a permit for one Easter Sunrise service to host a satanic ritual requiring the long-time church user of the property to move. Four individuals brought suit against the city, claiming the cross offended them and violates the Establishment Clause. The district court found that under the Lemon test, the city had violated the Establishment Clause.
One of the significant issues in the case involves the following issue of standing: do the plaintiffs who were formerly residents, but who are no longer residents have standing? The case also raises the standing question of the “offended observer” in the Establishment Clause context. Another issue raised by the lower court’s decision is the historical underpinnings of the Establishment Clause and whether it was intended to circumscribe state or local governments or instead, to act as a limitation on the federal government to prevent it from creating a governmentally backed religion.
Filed September __, 2017 (Florida District Court of Appeal)
Airbnb v. Miami
No. 15-1485
Pro Bono Author: Frances De La Guardia
Miami’s current zoning ordinance was adopted in October 2009 and has been interpreted to prohibit vacation rentals. Miami’s Planning and Zoning Director has testified that, under the City’s interpretation of the statute, uses must be set forth clearly in the ordinance to be permitted; therefore, because the zoning ordinance does not define terms associated with short-term rentals (i.e. “vacation rental,” “short term rental,” and “dwelling unit”), the ordinance has been interpreted by the City to prohibit them.
Florida has since passed a statute preempting local governments from enacting laws, ordinances, or regulations prohibiting or otherwise regulating vacation rentals (Section 509.032(7)(b) Fla. Stat.). However, the law made an exception for any local laws that were adopted prior to June 1, 2011. Additionally, in 2014, the Florida Attorney General issued an opinion stating that a prior zoning restriction without an explicit ban on vacation rentals could not subsequently be interpreted to restrict vacation rentals.
Airbnb sued the City challenging enforcement of its code relative to short term rentals. Miami argues that its ordinance is grandfathered, since it was enacted in 2009 and properly regulates short-term rentals. The trial court disagreed, coming to the opposite conclusion. Relying on the Florida AG opinion’s emphasis on specific language, the court ignored Miami’s interpretation and held that the ordinance did not regulate short-term rentals since the terms were not included or defined in the 2009 ordinance. The trial court enjoined the City from enforcing its Code provisions. The court also concluded that a zoning ordinance that does not include a reference to a specific use does not regulate that use and it is permitted.
The main issue in this case is whether Miami’s regulation (Miami 21), which relates to inns, bed and breakfasts, and hotels, is preempted from applying to vacation rentals by state law.
Filed August 30, 2017 (Nevada Supreme Court)
Glover v. Cargile & City of North Las Vegas
No. 70-988
Pro Bono Author: Robert Freeman
In this case, a North Las Vegas police officer was responding to an emergency involving an active shooting. On his way to the scene, he made the decision to go through a red light. The intersection had a hill that made it difficult to see all traffic coming through it. It is a disputed fact as to whether the officer had his lights and sirens on. It is undisputed that it was department policy for him to have his lights and sirens on in this situation. He was involved in a crash with someone going through that intersection and that person was injured. It is a disputed fact as to who struck who in the intersection.
NRS 41.032 immunizes municipal agencies and their employees against actions: “[b]ased on the exercise or performance or the failure to exercise or perform discretionary function or duty on the part of the State or any of its agencies or political subdivisions or of any officer, employee or immune contractor of any of these, whether or not the discretion involved is abused.” The Nevada Supreme court has interpreted the statute consistent with federal law, and that court applies discretionary immunity where: (1) the allegedly negligent acts involve elements of judgment or choice; and (2) the judgment or choice made involves social, economic, or political policy considerations.
The injured party sued and the lower court initially denied the City’s motion for summary judgment, but then after a motion for reconsideration, granted the City’s motion. In its decision granting summary judgment, the court concluded that because the officer’s actions involved his individual discretion, and were related to, and in furtherance of, public policy, the officer and the City were entitled to discretionary immunity pursuant to NRS 41.032. Specifically, the court concluded that the officer’s actions were undertaken while responding to an emergency and therefore in furtherance of public policies such as protecting the public / apprehending criminals. Because his actions did not constitute an intentional tort or bad faith, he was afforded discretionary immunity.
The appellant / injured party argues that disputed material facts precluded the entry of summary judgment, including whether the officer had his sirens / lights on and who struck who in the intersection. The appellant also argues that because the officer chose to enter the intersection unsafely (without lights/sirens and knowing it was a blind intersection), he was endangering the public and that the law doesn’t say that the officer gets immunity unless you show bad faith.
The City argued that while the officer’s discretion is not “unfettered,” his conduct as alleged only amounts to negligence or “abuse of discretion” and would still be subject to discretionary immunity even if everything they allege is true. Here, it was undisputed that he was utilizing discretion in driving his vehicle to an emergency in furtherance of public policy.
The issues on appeal are: (1) Did the District Court err when it granted summary judgment in favor of Defendants based on discretionary immunity under NRS 41.032(2) when according to the appellant, the police officer violated his own safety rules and policies in causing a crash?; and (2) Did the District Court err when it concluded that discretionary immunity bars all claims against a police officer so long as they did not commit intentional torts or acted in “bad faith”?
Filed August 21, 2017 (Montana Supreme Court)
Basset v. City of Billings
No. OP 17-0322
Pro Bono Author: Todd Hammer
Officer Lamantia was dispatched to a loud party just after midnight. Upon arrival, he observed a young male subject running into a nearby driveway and hopping a retaining wall into a neighboring yard. Lamantia exited his car, yelled for the subject to stop and identified himself as a police officer. When the youth did not stop, Lamantia pursued the individual on foot. In his pursuit, he jumped over the retaining wall, losing his flashlight in the process.
Unbeknownst to Officer Lamantia, Plaintiff Robert Bassett was taking his dog out and was standing in his yard, having just encountered one of the fleeing partygoers cutting across his property. Hoping to dissuade other late night revelers from trying to cut across his property, Bassett moved towards the retaining wall where he had seen a fleeing partygoer. Instead, Bassett encountered Lamantia crouched down, searching for his flashlight in the dark.
Officer Lamantia apparently mistook Bassett for the individual he had been pursuing and tackled Basset to the ground. As soon as he realized Bassett wasn’t a threat, Lamantia released him. As a result of the encounter, Basset suffered a torn rotator cuff and sued Lamantia and the City of Billings under Section 1983. Bassett also alleged a state law claim of negligence against Lamantia. The City has argued that they are shielded under the public duty doctrine.
The case was removed to federal court and summary judgment was granted in favor of the City on both claims. As to the separate negligence claim, the district court also found the public duty doctrine shielded Officer Lamantia from liability. Bassett appealed to the Ninth Circuit. Because this is an issue of first impression in Montana, the Ninth Circuit then submitted the issue via certified question to the Montana Supreme Court.
The issue before the Montana Supreme Court is whether the public duty doctrine applies when the alleged injury arises solely from a law enforcement officer’s individual actions.
Filed June 15, 2017 (Court of Appeals, Ohio)
City of Cleveland v. State of Ohio
No. 16-868008
Pro Bono Author: Joseph Scott
As a part of an initiative to address poverty and income inequality, Cleveland enacted an ordinance requiring residents to perform at least 20% of construction worker hours in every city construction contract of at least $100,000. The ordinance also required contractors and subcontractors to use “significant effort” to ensure that at least 4% of those residents be low-income. The law was never challenged by the contracting community and has since been viewed favorably by city residents.
Thirteen years later in 2016, the Ohio General Assembly sought to preempt Cleveland’s ordinance, characterizing it, among other things, as an impermissible residency requirement. The Ohio law prohibits public authorities from requiring contractors to employ a certain percentage of individuals from the geographic area of the public authority for construction.
Cleveland filed suit, asserting that the preemptive legislation was a violation of Home Rule and arguing that it attempted to take a purely local issue and assert a state interest. The City was successful in the lower court and Ohio has appealed.
This case addresses the issue of home rule and preemption. Specifically, it concerns the question of home rule in Ohio and whether the City of Cleveland is permitted to set its own hiring requirements for its construction contracts.
Filed May 11, 2017 (California Supreme Court)
T-Mobile v. City of San Francisco
No. S238001
Pro Bono Author: Jeffrey Melching
In 2011, San Francisco adopted a personal wireless service facilities ordinance that required service providers to obtain a permit to place their facilities in the right-of-way. The ordinance included several requirements, but the element relevant to this appeal is a provision conditioning a permit for larger equipment on an aesthetic review. T-Mobile and other personal wireless providers challenged that requirement, relying on a state statute, Public Utilities Code Section 7901, which gives telecom providers the ability to place their equipment in the public right-of-way so long as the equipment does not “incommode the public use of the road.” Plaintiffs argue that since aesthetic considerations are not relevant to whether their equipment obstructs travel, the local ordinance is preempted.
The California Court of Appeal held that the state statute did not preempt the local ordinance. The court reasoned the term “incommode” is broad enough to include aesthetic concerns as the term means “to unreasonably subject the public use to inconvenience or discomfort; to unreasonably annoy, molest, embarrass, inconvenience; to unreasonably hinder, impede, or obstruct the public use.”
The issue is whether state law, which grants a statewide franchise to wireless carriers and allows them to install wireless boxes in the public right of way, but prohibits wireless carriers from “incommoding” the public use of the public right-of-way, preempts San Francisco’s ability to consider aesthetics when deciding whether to issue a permit to a telecommunications company for its wireless service facilities on poles in the public right-of-way.
T-Mobile v. San Francisco presented a great victory for San Francisco and local governments in California, where the California Supreme Court concluded that San Francisco’s ordinance requiring wireless telecommunications companies to abide by the City’s established aesthetic guidelines when obtaining permits to install and maintain their lines and equipment in public rights-of-way was not preempted by state law. The court concluded that it was well within the local government’s police powers to enact the ordinance and that the ordinance was therefore not preempted by state law. IMLA would like to thank our amicus author, Jeffrey Melching, for his excellent work on our behalf. To review the decision, click here.
Filed February 16, 2017 (Texas Supreme Court)
Pidgeon v. Mayor Turner & City of Houston
No. 14-56421 / 14-56514
Pro Bono Author: Heidi Bloch
The City of Houston offered benefits to same-sex spouses of City employees legally married in other jurisdictions prior to the Supreme Court’s decision in Obergefell v. Hodges (which held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state).
Private citizens brought suit as taxpayers against the City, seeking to prevent it from doing so. A Texas district court entered an injunction against the City and ordered the City to discontinue the benefits. The City appealed, which stayed the order. While it was on appeal, the Supreme Court decided Obergefell. The City then argued the case was moot in light of the Supreme Court’s decision and the appellate court agreed, reversing the district court’s original decision and remanding it for proceedings consistent with Obergefell.
The case went up to the Texas Supreme Court and the City argued a number of procedural infirmities. Ultimately the Texas Supreme Court denied the petition for review, on jurisdictional grounds. The Texas Supreme Court’s denial for review would have sent the case back to the trial court and ultimately would have resulted in its dismissal. However, the appellants filed a petition for rehearing and a number of amici came in supporting them, including a number of state legislators. The amici argue that Obergefell only held that same-sex couples have a constitutional right to marry, and that it did not invalidate laws that provide more benefits to heterosexual couples. They also argue that Obergefell should not apply retroactively.
The Texas Supreme Court there