Archives

Travel Ban: What’s Next?

On February 9 the Ninth Circuit refused to stay a district court’s temporary restraining order disallowing the President’s travel ban from going into effect. The executive order prevents people from seven predominately Muslim countries from entering the United States for 90 days.

 Washington and Minnesota sued President Trump claiming their public universities are harmed because students and faculty of the affected countries cannot travel for research, academic collaboration, or personal reasons. The residents of cities and counties and their families have been affected as well by this executive order.

 The government argued that the President has “unreviewable authority to suspend admissions of any class of aliens.” The Ninth Circuit disagreed stating: “There is no precedent to support this claimed unreviewablity, which runs contrary to the fundamental structure of our constitutional democracy.” 

 The Ninth Circuit agreed with the district court that the states are likely to succeed on the merits of their claim that the executive order violates the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees. More specifically, the executive order provides no notice and hearing before restricting a person’s right to travel and “contravenes the procedures provided by federal statute for refugees seeking asylum.” Continue reading

 

Pregnancy-Related Clinics May Be Required To Provide Notice About Family Planning

In an opinion published this morning in National Institute of Family and Life Advocates v. Harris (“NIFL“), the Ninth Circuit has held that California may require licensed pregnancy-related clinics to provide patients with notice about the existence of publicly-funded family-planning services without violating the First Amendment. California may also require unlicensed clinics to provide notice stating that they are not licensed.

This case may be of interest to IMLA members, particularly as the opinion notes that a city attorney may be a proper defendant in an action challenging a state-wide statute that gives a city attorney power to enforce the statute. Continue reading

 
 

San Francisco Cannot Sue Federal Agency For Gas Explosion Under APA

Today, the Ninth Circuit issued its Opinion in City & County of San Francisco v. US Department of Transportation, holding the City may not proceed against the Secretary of Transportation and the Pipeline and Hazardous Materials Safety Administration in its case arising from the 2010 San Bruno explosion that killed eight people and leveled an entire neighborhood.  The City sought mandamus relief alleging the agencies unlawfully withheld deciding whether California’s Public Utility Commission adequately enforced federal pipeline safety standards and arbitrarily and capriciously approved the PUC’s certification and funding.  This case could have broad implications for other public entities trying to force the federal government to enforce safety standards where there is no clear violation of a law or regulation, but merely “troubling allegations” about an agency’s approach to its oversight role.

 

 

 

En Banc Argument in Peruta Suggests Limitations on Concealed Carry May Survive

Another update on the concealed-weapons permit case, Peruta v. County of San Diego.  The Ninth Circuit held en banc rehearing this week.  Panel consisted of Chief Judge Thomas, and Judges Pregerson, Silverman, Graber, McKeown, Fletcher, Paez, Callahan, Bea, Smith, and Owens.  Chief Judge Thomas dissented from the original three-judge panel opinion, authoried by Judge O’Scannlain and joined by Judge Callahan. Continue reading

 

A Retirement Case You Should Not Ignore

The Employee Retirement Income Security Act (ERISA) regulates private employer retirement plans and does not apply to state and local government retirement plans. Tibble v. Edison International is an ERISA case. Before you dismiss it, note that it is an ERISA fiduciary duty case.

A lower court determining the precise nature of the fiduciary duty state and local governments owe employees under a state law similar to ERISA regulating public retirement plans may look to the Supreme Court’s opinion in this case. The Court held unanimously that employers have a continuing duty to monitor retirement investments and remove imprudent ones.   Continue reading

 
 

Ninth Circuit Agrees To En Banc Rehearing in Peruta

Quick update for those of you following the hotly contested Second Amendment case Peruta v. County of San Diego.  Yesterday, the Ninth Circuit agreed to an en banc rehearing.  The Court will take up the issue of whether San Diego County’s “good cause” permitting requirement, governing concealed weapons permits, impermissibly infringes on the Second Amendment right to bear arms.  The California Attorney General and other groups brought petitions for rehearing after unsuccessfully attempting to intervene in the case last year when the San Diego Sheriff opted not to seek rehearing of the original Opinion, authored by Judge O’Scannlain, and joined by Judge Callahan, with a dissent by Judge Thomas.

 

 

Outer Limits of the ADA’s Applicability?: Must Police Officers Accommodate Mentally Ill Arrestees?

Per the adoption of the Americans with Disabilities Act (ADA), accommodating persons with disabilities is the norm.  Twenty-five years after the Act’s passage, the Supreme Court will decide whether it applies to police officers arresting a mentally ill suspect one who is armed and violent.

In City & County of San Francisco v. Sheehan the Supreme Court will decide whether, pursuant to the Americans with Disabilities Act (ADA), police must accommodate a suspect’s mental illness when arresting him or her.  The State and Local Legal Center’s (SLLC) amicus brief argues no because no conclusive evidence indicates that accommodating mentally ill suspects reduces injuries or the use of force.  IMLA filed a separate amicus brief in this case making different arguments than those made in the SLLC’s brief.

When police officers entered Teresa Sheehan’s room in a group home for persons with mental illness she threatened to kill them with a knife she held, so they retreated.  When the officers reentered her room soon after leaving it, Sheehan stepped toward them with her knife raised and continued to hold it after the officers pepper sprayed and ultimately shot her.  Sheehan survived.

Title II of the ADA provides that individuals with a disability must be able to participate in the “services, programs, or activities of a public entity,” and that their disability must be reasonably accommodated.

Sheehan argues that Title II of the ADA applies to arrests and that the officers should have taken her mental illness into account when reentering her room.  Her proposed accommodations included:  respecting her comfort zone, engaging in non-threatening communications, and using the passage of time to defuse the situation.

The Ninth Circuit agreed with Sheehan that Title II of the ADA applies to arrests.  The ADA applies broadly to police “services, programs, or activities,” which the Ninth Circuit interpreted to mean “anything a public entity does,” including arresting people.  The court refused to dismiss Sheehan’s ADA claim against the city reasoning that whether her proposed accommodations are reasonable is a question of fact for a jury.

The Ninth Circuit also concluded that reentry into Sheehan’s room violated the Fourth Amendment because it was unreasonable.  Although Sheehan needed help, “the officers had no reason to believe that a delay in entering her room would cause her serious harm, especially when weighed against the high likelihood that a deadly confrontation would ensue if they forced a confrontation.”

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights.  Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

The Ninth Circuit refused to grant the officers qualified immunity related to their reentry:  “If there was no pressing need to rush in, and every reason to expect that doing so would result in Sheehan’s death or serious injury, then any reasonable officer would have known that this use of force was excessive.”  The Court will review the Ninth Circuit’s qualified immunity ruling.

The SLLC’s amicus brief argues that the ADA should not apply to arrests.  While few police departments have the resources to adopt specialized approaches to responding to incidents involving the mentally ill, no conclusive evidence indicates that these approaches reduce the rate or severity of injuries to mentally ill suspects.  No one-size fits-all approach makes sense because police officers encounter a wide range of suspects with mental illnesses.  And even psychiatrists—much less police officers who aren’t mental health professionals—cannot predict with any reasonable degree of certainty whether an armed suspect with a mental illness will harm himself or herself or others in an emergency.  Finally, because the officers in this case could not predict whether Sheehan would harm herself or others if they did not reenter her room, they are entitled to qualified immunity.

Orry Korb, Danny Chou, Greta Hanson, and Melissa Kiniyalocts, County of Santa Clara, California wrote the SLLC’s amicus brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, and the United States Conference of Mayors.

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Fourth Circuit

Fifth Circuit

Sixth Circuit

Eighth Circuit

Ninth Circuit

Tenth Circuit

(12/15/2014-12/19/2014)

Image courtesy of Flickr from Ken Lund (creative-commons license, no changes made).

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Catching up on recent published decisions involving local governments:court collumn

First Circuit

  • S. Kingstown Sch. Cmte v. Joanna S., No. 14-1177 (Dec. 9, 2014): The court ruled in Individuals with Disabilities in Education Act (“IDEA”) case that settlement agreement relieved school committee of obligation to perform or fund evaluations, and remanded to determine whether Joanna S. is entitled to attorney’s fees.

Second Circuit

Fourth Circuit

Fifth Circuit Continue reading

 

Does the ADA Apply to Arrests?

The Fourth Amendment applies to arrests, no question about it.  What about the Americans with Disabilities Act (ADA)?  Specifically, do individuals with mental illnesses have to be accommodated under the ADA when being arrested?  The Ninth Circuit said yes and the Supreme Court has agreed to review its decision in City & County of San Francisco v. Sheehan.Gavel

When police officers entered Teresa Sheehan’s room in a group home for persons with mental illness she threatened to kill them with a knife she held, so they retreated.  When the officers reentered her room soon after leaving it, Sheehan stepped toward them with her knife raised and continued to hold it after the officers pepper sprayed and ultimately shot her.

Title II of the ADA provides that individuals with a disability must be able to participate in the “services, programs, or activities of a public entity,” and that their disability must be reasonably accommodated.

Sheehan argued that Title II of the ADA applies to arrests and that the officers should have taken her mental illness into account when reentering her room.  Her proposed accommodations included:  respecting her comfort zone, engaging in non-threatening communications, and using the passage of time to defuse the situation

The Ninth Circuit agreed with Sheehan that Title II of the ADA applies to arrests. Continue reading

 

Must All Signs Be the Same?

The Supreme Court’s decision in Reed v. Town of Gilbert, Arizona could upset sign codes nationally.5554035521_f6b59ccafa_n  Most sign codes, like Gilbert’s, include different categories of temporary signs.  It makes sense, for example, to give people more time to remove thousands of election signs and less time to remove a few yard sale signs.  In this case the Court will decide whether local governments may regulate temporary directional signs differently than other temporary signs.  The Court could rule, practically speaking, that all temporary signs must have the same time, place, and manner requirements.  IMLA joined the State and Local Legal Center’s (SLLC) amicus brief asking the Court not to go that far.

Gilbert’s Sign Code includes temporary directional signs, political signs, and ideological signs.  After being notified that its temporary directional signs announcing the time and location of church services were displayed longer than allowed, the Good News church sued Gilbert.  The church claimed Gilbert’s Sign Code violates the First Amendment because temporary directional signs receive the less favorable treatment (in terms of size, location, duration, etc.) than political signs and ideological signs. Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Fourth Circuit

Sixth Circuit

 

Supreme Court Review of Same-Sex Marriage (Almost) Inevitable

Even though there was no disagreements among the federal circuit courts of appeals at the time, Court watchers were shocked with the Supreme Court denied certiorari in a series of cases striking down same-sex marriage bans.  All eyes then turned to the Ninth and Sixth Circuits who had pending cases.  The next day the Ninth Circuit struck down Nevada’s and Idaho’s ban.  On November 6 the Sixth Circuit became the first federal circuit court to uphold bans in four states (Michigan, Tennessee, Ohio, and Kentucky).14692401305_ea57b7b223

In 12 bullet points Lyle Denniston of SCOTUSblog summarizes the Sixth Circuit’s majority opinion.  Judge Sutton eloquently explains why he parted company with his colleagues who decided the other cases:  “When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers.  Better, in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

While the Supreme Court doesn’t resolve every circuit split immediately, given the significance of this issue it would be shocking if the Court didn’t resolve it shortly.  As Lyle Denniston describes on SCOTUSblog this does not necessarily mean that the Court will hear the Sixth Circuit’s case—the Ninth Circuit ruling could also be appealed or the Court could grant review in a case pending, not yet decided, from another circuit.

But the mostly likely outcome (now that we know none of the plaintiffs will ask all of the Sixth Circuit judges to rehear the case) is that the Court will accept the Sixth Circuit case for review.

So maybe the only question is will the Court hear the case this term or next? One petition has already been filed.  If all petitions and responses are ready for the Justices by their January 9 conference this case will be heard and decided by the end of June.

(Photo courtesy of Flickr by Stefan Ogrisek, creative-commons license, no changes made).

 

Hotels in the Hot Seat: Supreme Court Accepts Hotel Registry Case

Cities and states from California to Maine have confronted the problem of hotels that are crime magnets. hotel One solution that some evidence suggests effectively deters crime is ordinances or state laws that require hotels to keep detailed information about guests that are subject to police inspection.  These ordinances and laws generally do not require police to obtain a warrant.

In Los Angeles v. Patel a Los Angeles ordinance requires hotel and motel operators to keep specific information about their guests and allows police to inspect the registries without warrants.  Motel operators claim this ordinance is facially invalid under the Fourth Amendment.

The first issue the Supreme Court will decide in this case is whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment. Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Sixth Circuit

  • Cass v. City of Dayton, No. 13-4409 (Oct. 16, 2014): In 1983 action alleging that officer used excessive force in violation of the Fourth Amendment, the court affirmed summary judgment for defendants because officer’s conduct was objectively reasonable and did not violate Fourth Amendment.

Seventh Circuit

Ninth Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

First Circuit

  • Showtime Entn’t v. Town of Mendon, No. 12-2121 (Oct. 8, 2014): The Town’s adult-business-entertainment bylaws unconstitutionally infringe on Showtime’s right to engage in a protected expressive activity; the regulations’ underinclusiveness indicates that Town does not have substantial interest in regulating adult businesses to curb secondary effects.

Seventh Circuit

Ninth Circuit Continue reading

 

What’s Next for Same-Sex Marriage?

For the six reasons Lyle Denniston describes on SCOTUSblog, the Supreme Court’s announcement on Monday that it would not hear any of the seven petitions striking down same-sex marriage bans was stunning.5554035521_f6b59ccafa_n  Even though there was no circuit split, conventional wisdom indicated the Court would decide the issue because of its importance and because both sides asked the Court for review.

Amy Howe also of SCOTUSblog and Scott Michelman writing on SCOTUSblog speculate as to the why the Court’s liberals and conservatives may have decided not to get involved in the issue now.  In short, the liberals had nothing to lose by waiting, and both side face uncertainty about Justice Kennedy’s position on the issue.

To understand where were are today with same-sex marriage a timetable is helpful.

  • On Sunday, 19 states recognized same-sex marriage.
  • On Monday, 11 more states were added from the Fourth (Virginia, West Virginia, North Carolina, and South Carolina) Seventh (Wisconsin and Indiana) and Tenth Circuits (Utah, Oklahoma, Colorado, Kansas, and Wyoming).
  • On Tuesday 5 more states were added when the Ninth Circuit (Idaho, Nevada, Alaska, Arizona, and Montana) struck down the Idaho and Nevada same-sex marriage bans.  (Implementation of this decision is still being worked out).

Technically, Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Second Circuit

  • Raspardo v. Carlone, No. 12-1686 (Oct. 6, 2014): In 1983 Title VII employment discrimination case brought by female police officers alleging hostile work environment and disparate treatment, the court affirmed denial of qualified immunity for one officer on hostile-work-environment claim, and reversed denial of qualified immunity for other officers.
  • Sunrise Detox V, LLC v. City of White Plains, No. 13-2911 (Oct. 2, 2014): In case in which  City denied request for facility to provide care for those recovering from alcohol and drug abuse because facility did not satisfy zoning requirements, the court affirmed district court’s determination that it lacked subject-matter jurisdiction over ADA suit. Suit was not ripe because applicant had not sought variance or appealed the zoning decision.
  • Grogan v. Blooming Grove Volunteer Ambulance Corps, No. 13-656 (Sept. 29, 2014): The court affirmed dismissal of 1983 action after it determined that private emergency medical care and general ambulance services contracted for by municipality do not constitute “state action.”

Seventh Circuit Continue reading

 

Ninth Circuit: City’s Pioneering Drug-Disposal Ordinance Does Not Violate Commerce Clause

If your medicine cabinet is filled with old prescriptions and other medications that you no longer want or can use, you might have asked: how and where should I get rid of these? Pills

Local governments are beginning to provide an answer. Old medications are not only misused, they also pose dangers for the environment. Flushing pills or putting them in the trash can contaminate drinking water and cause other environmental problems.

But disposal programs can be expensive. What’s a local government to do?

Alameda County, California, devised a solution. It passed a Safe Drug Disposal Ordinance that requires any prescription drug producer who sells, offers for sale, or distributes drugs in the County to participate in a program to collect and dispose of the County’s unwanted drugs.

Manufacturers and distributors objected, however. They claimed that requiring them to pay for the program violates the dormant Commerce Clause because it discriminates against or directly regulates interstate commerce. Are they right?

On Tuesday, the Ninth Circuit said that the program does not violate the Commerce Clause.

The court ruled that Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Second Circuit

Sixth Circuit

  • United Pet Supply, Inc. v. City of Chattanooga, No. 13-5181 (Sept. 18, 2014): The court found that: (i) private animal-welfare employee that contracted with City may not assert qualified immunity; (ii) officers may not assert qualified-immunity defense to “official capacity” suits; (iii) seizure of animals without prior hearing did not violate procedural due process; (iv) revocation of permit without hearing did violate due process; (v) that warrantless animal seizure did not violate Fourth Amendment because of exigent circumstances; and (vi) seizure of records without warrant violated clearly established Fourth-Amendment right and therefore officer was not entitled to qualified immunity.
  • Finn v. Warren County, No. 13-6629 (Sept. 16, 2014): In action alleging inadequte medical care in violation of the Eighth Amendment and state law claims including negligence after Finn died in his cell, the court reversed grant of summary judgment for officer, remanded for trial on negligence claim, and otherwise affirmed judgment below.

Seventh Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Ninth Circuit

Eleventh Circuit

  • West v. Davis, No. 13-14805 (Sept. 8, 2014): The court found that district court improperly granted summary judgment for security guard in case in which West challenged the actions of a security guard at courthouse security checkpoint; district court should have applied standard for “seizures” under the Fourth Amendment.

D.C. Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Sixth Circuit

Eighth Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

First Circuit

  • Town of Johnston v. Fed. Housing Finance Agency, No. 13-2034 (Aug. 27, 2014): The court affirmed the dismissal of the municipalities’ claim that Fannie Mae and Freddie Mac failed to pay taxes on property transfers; the court found that statutory exemptions from taxation applied. As the court put it: “Six other circuits have recently considered this attempt to shoe-horn a transfer tax into a real property tax, and they have unanimously rejected the argument.”

Second Circuit

Third Circuit Continue reading

 

IMLA Files Brief in Wyatt v. Gonzalez

On Friday, IMLA filed its brief in Wyatt v. Gonzalez,judicial bench a petition stage Supreme Court case, which involves a question of whether immaterial discrepancies in a police officer’s recollection of a stressful event amounted to a “genuine issue for trial” where the plaintiff offered no contradictory evidence.  In this case, the police officer was trapped inside a vehicle controlled by someone who had already committed several dangerous felonies.  The officer shot and killed the driver of the van, after he resisted verbal commands and non-lethal force.  The plaintiffs did not dispute that the driver of the van “stomped” on the accelerator with the officer trapped inside.  Nonetheless, the Ninth Circuit ruled that summary judgment on the plaintiffs’ Fourth Amendment claim was inappropriate because the parties disputed how fast the van was traveling at the time the officer employed deadly force.

IMLA’s brief argues that the Ninth Circuit’s focus on the speed of the van is misguided, as that particular fact is not material for the purposes of the summary judgment analysis.  Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Apologies that this edition is delayed. I was tied up with a significant filing for the past week. The courts were busy too. Here are the last two weeks’ published decisions involving local governments:court collumn

First Circuit

  • Penn v. Escorsio, No. 13-2309 (Aug. 22, 2014): The court affirmed the district court’s denial of qualified immunity at the summary judgment stage to corrections officers alleged to be deliberately indifferent to risk that detainee could commit suicide.  The court found that the issues presented on appeal were purely factual, and the court had no jurisdiction to decide them on interlocutory appeal.

Second Circuit Continue reading

 

IMLA Files Amicus Brief in Schultz v. Wescom

On Monday, IMLA filed its brief in Schultz v. Wescom, a petition stage Supreme Court case, which 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 NinthCircuitthe completion of discovery.  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 does not amount to a denial of qualified immunity. 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.

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, particularly costly discovery, and the Ninth and Seventh Circuits’ approach effectively denies police officers in those jurisdictions the benefits of qualified immunity and goes against Supreme Court precedent.  To read IMLA’s amicus brief in this case click here.

Image courtesy of Flickr by Ken Lund (creative-commons license, no changes made).

 

IMLA Files Amicus Brief in City of Newport Beach v. Pacific Shores Properties, LLC

On Monday, IMLA filed its brief in City of Newport Beach v. Pacific Shores Properties, LLC, a petition stage Supreme Court case, which involves questions of discrimination under the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). Specifically, the issue before the Supreme Court is whether a disparate-treatment claim under the FHA and/or the8122523_ab151ea98b_z 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.

In this case, 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, Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:

SCT stairs[Update: I added the Ninth Circuit’s Daubert decision. (7/31)]
Second Circuit

Carter v. Inc. Vill. of Ocean Beach, No. 13-815 (July 21, 2014): Affirming award of attorney’s fees to County defendants in case brought by former police officers alleging wrongful termination and defamation.

Cox v. Onondaga Sheriff’s Dept., No. 12-1526 (July 23, 2014): Affirming dismissal of complaint alleging Title VII retaliation for racial-harassment claims.

Reyes v. New York City Dept. of Ed., No. 13-158 (July 25, 2014): Finding that under IDEA, proposed IEP and school placement failed to provide student with free appropriate public education.

Fourth Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:judicial bench

First Circuit

Merit Construction Alliance v. City of Quincy, No. 13-2189 (July 16, 2014): The court concluded that the district court: (1) properly determined that ERISA preempts a City ordinance mandating a specific apprentice-training program; and (2) erred by awarding attorney’s fees under ERISA’s fee-shifting statute.

Third Circuit

Batchelor v. Rose Tree Media Sch. Dist., No. 13-2192 (July 17, 2014): The court found that retaliation claims related to enforcement under the Indviduals with Disabilities in Education Act must be exhausted before a court may assert subject-matter jurisdiction. Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments, a couple days late this week:Alexandria-court

Second Circuit

E.M. v. New York City Dept. of Ed., No. 11-1427 (July 11, 2014) (in IDEA case, concluding that district court improperly concluded that IEP was adequate by relying on retrospective evidence extrinsic to the IEP).

Fourth Circuit

Lefemine v. Wideman, No. 13-1629 (July 11, 2014) (reversing determination that successful plaintiff in 1983 First-Amendment case was not entitled to attorney’s fees). Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:law books

Sixth Circuit

Hescott v. City of Saginaw, No. 13-2103 (July 2, 2014) (ruling that district court erred denying attorney’s fees to Hescotts in their successful 1983 action claiming that the City had unconstitutionally seized their personal effects by demolishing their property).

Seventh Circuit

Scherr v. City of Chicago, No. 13-1992 (July 2, 2014) (affirming that 1983 suit against officer based on alleged Fourth-Amendment violation was properly dismissed). Continue reading

 

Ninth Circuit: Ordinance Criminalizing Living in Car Is Unconstitutionally Vague

If you eat, talk on the phone, and escape the rain in your car, are you using the car “as living quarters either overnight, day-by-day, or otherwise?”Homelesscar

What if you load up the car with personal belongings for a camping trip? Or drive an RV to go on vacation?

In the Ninth Circuit’s view, a City of Los Angeles code provision designed to outlaw sleeping in a vehicle on City streets and parking lots may or may not criminalize all these activities and could lead to other selective enforcement—particularly against the homeless and poor. The court therefore ruled that the provision is unconstitutionally vague. The decision is Desertrain v. City of Los Angeles, No. 11-56957 (June 19, 2014).

Los Angeles Municipal Code Section 85.02 outlaws Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:NinthCircuit

First Circuit

Fifth Circuit

Continue reading

 

Tuesday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:Alexandria-court

First Circuit

  • Gericke v. Begin, No. 12-2326 (May 23, 2014) (affirming denial of qualified immunity for police officers on First-Amendment retaliatory prosecution claim where plaintiff was arrested after she attempted to film a traffic stop).

Eighth Circuit

  • Walton v. Dawson, No. 12-4000 (May 20, 2014) (affirming in part and reversing in part denial of qualified immunity in failure-to-train claims against officers arising out of jail-cell attack that occurred after officers did not lock cell doors).

Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:Gavel

Second Circuit

Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:Alexandria-court

First Circuit

  • Jones v. City of Boston, No. 12-2280 (May 7, 2014) (in suit challenging police department’s drug-testing program as causing disparate impact based on race, reversing denial of summary judgment for plaintiffs on whether they had proved a prima facie case of disparate impact under Title VII).

Sixth Circuit

Continue reading

 

A Case to Watch: City of San Jose v. Office of Commissioner

If you spend your time following baseball, local governments, and appellate litigation (as I do),Baseball the Ninth Circuit case of City of San Jose v. Office of the Commissioner of Baseball, No. 14-15139, is one to watch.

The issues are simple: the City of San Jose would like the Oakland A’s to relocate there, but MLB has refused to permit it.

Why?

According to the City, another team, the San Francisco Giants, “owns” the exclusive rights to San Jose. The City explained that MLB teams have an “exclusive territorial rights agreement,”one that the City claims “constitutes a blatant market allocation scheme that is illegal under the American antitrust laws in all other professional sports.”

The district court found that Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:5653819568_1e37db21d0_z

First Circuit

Second Circuit

Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT stairs

Second Circuit

Fourth Circuit

 

Newport Beach To Seek Supreme Court Review in Group-Home Case

We have tracked the Ninth Circuit case of Pacific Shore Properties, LLC v. City of Newport Beach, No. 11-55460 — see previous posts here and here. Supreme CourtThe City has now announced that it will ask the U.S. Supreme Court to review the case:

“In our opinion, the panel came up with a new theory of liability under the anti-discrimination laws that has never been recognized before, Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:FedPrac

First Circuit

Fifth Circuit

 

Ninth Circuit: Local Governments May Regulate Handgun Storage and Hollow-Point Bullets

The Second Amendment confers an individual right to keep and bear arms.Handgun

We know that now—after decades of uncertainty—because the Supreme Court said so in District of Columbia v. Heller, 554 U.S. 570 (2008).

But how far does the Second Amendment extend? Does it prevent a City from regulating the storage of handguns in homes or the sale of ammunition that expands upon impact, referrred to as hollow-point bullets?

In a case decided this week, Jackson v. City and County of San Francisco, No. 12-17803 (Mar. 25, 2014), the Ninth Circuit ruled that those bringing a Second-Amendment challenge to the City and County of San Francisco’s handgun and ammunition regulations were not likely to succeed on the merits.

What exactly was at issue and how did the court reach its conclusions? Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:No-Loitering

Third Circuit

Seventh Circuit

Ninth Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:Alexandria-court

First Circuit

Second Circuit

 

Ninth Circuit Denies En Banc Review in Newport Beach Case

The Ninth Circuit has denied the sua sponte call for en banc review in Pacific Shore Properties, LLC v. City of Newport Beach, No. 11-55460, a case that we have written about previously hereNinthCircuitJudge O’Scannlain, joined by Judges Tallman, Callahan, Bea, and Ikuta, filed a dissental, that is, a dissent from the denial of en banc review. It appears to be telegraphing that the Supreme Court should consider the case:

The panel’s opinion in these consolidated cases invents an entirely unprecedented theory of actionable government discrimination: sinister intent in the enactment of facially neutral legislation can generate civil liability without evidence of discriminatory effect. Such unwarranted expansion Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:Justice

Sixth Circuit

  • Rorrer v. City of Stow, No. 13-3272 (Feb. 26, 2014) (reversing grant of summary judgment to City and against plaintiff, a terminated firefighter with a non-work-related injury, on ADA claim; affirming grant of summary judgment for City on First Amendment and ADA retaliation claims).

Seventh Circuit

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:NinthCircuit

Third Circuit

  • M.R. v. Ridley School District, No. 12-4137 (Feb. 20, 2014) (finding under Individuals with Disabilities in Education Act that for “stay put” period: (1) school district must reimburse parents for private-school costs even if parents do not file a claim for payment until after a court has ruled for the school; and (2) the parents’ right to interim funding extends through the time of judicial appeal.).

Fourth Circuit

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:

Seventh Circuit

Ninth Circuit

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT pillars

Second Circuit

Sixth Circuit

Seventh Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Happy New Year to all of our readers.

Last week was a slow one for the courts. The only significant action for local governments came from the Ninth Circuit:

 

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are published decisions involving local governments from the federal appellate courts from December 23, 2013, through December 27, 2013:

Seventh Circuit

Ninth Circuit

Eleventh Circuit

 

Ninth Circuit: City Requirement That Cell-Tower Company Obtain Voter Approval Upheld

When T-Mobile sought to place a cell tower in a park owned by the City of Huntington Beach, California, the City granted the company all the regulatory approvals it required. But the City also informed T-Mobile that before it would finally lease the company the rights to the City property that it needed, the company must first obtain approval from City voters, under an amendment to the City charter known as Measure C.CellTower

T-Mobile refused. It claimed that Section 332(c)(7) of the Communications Act, 47 U.S.C. § 332(c)(7),  preempts this City requirement.

Is T-Mobile correct?

Not according to the Ninth Circuit, which decided Omnipoint Communications, Inc. v. City of Huntington Beach, No. 10-56877 (9th Cir. Dec. 11, 2013) last week. The court ruled that because Section 332(c)(7) “applies only to local zoning and land use decisions and does not address a municipality’s property rights as a landowner,” it does not preempt this local requirement, which concerns only how the City may lease its property.

Enacted in 1990, Measure C states: Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are published decisions involving local governments from the federal appellate courts from December 9, 2013, through December 13, 2013:

Sixth Circuit

Seventh Circuit

Ninth Circuit

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are published decisions involving local governments from the federal appellate courts from November 25, 2013 through December 6, 2013:

Second Circuit

Fourth Circuit

Seventh Circuit

Ninth Circuit

 

 

Ninth Circuit: Officer Removed After Raising Safety Issues Does Not Have First Amendment Claim.

If a public employee reports departmental-safety concerns to his supervisor, and the employee is removed from duty for raising those concerns, does the employee have a viable First Amendment retaliation claim?Policecar

In Hagen v. City of Eugene, No. 12-35492 (Dec. 3, 2013), the Ninth Circuit ruled that a public employee did not have a viable First Amendment claim under the particular circumstances there. The court ruled that, viewing all the evidence in the light most favorable to the employee, he was speaking as a public employee, not a private citizen.

The case involved a City police officer, Brian Hagen, who noticed that members of his SWAT team were often firing their weapons accidentally and negigently. Hagen tried to make his concerns about the team “as public as possible” by sending e-mails and raising the issue  in meetings. Eventually, Hagen was removed from the K-9 team.

Hagen claimed that the City and senior officers had retaliated against him for exercising his First Amendment rights. Continue reading

 
 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are published decisions involving local governments from the federal appellate courts from October 28, 2013 through November 1, 2013:

6th Circuit

7th Circuit

9th Circuit

 

Ninth Circuit: City Not Entitled to Summary Judgment on Housing Discrimination Claims

GavelThe Ninth Circuit issued its decision Friday in Pacific Shores Properties, LLC v. City of Newport Beach, No. 11-55460. In the case, plaintiffs alleged that a City ordinance violated the Fair Housing Act, the Americans with Disabilities Act, the California Fair Employment and Housing Act, and the Equal Protection Clause because the ordinance had the practical effect of prohibiting new group homes for recovering alcoholics and drug users from opening in most residential districts. Although the district court had granted summary judgment for the City, the Ninth Circuit today reversed that decision. It concluded that the plaintiffs had created a triable issue of fact as to whether the City enacted the ordinance to discriminate against them, and whether its enactment and enforcement harmed them.

I wrote an amicus brief on behalf of the League of California Cities, which urged the court to find that evidence of arguably discriminatory intent or motive in adopting a city ordinance was not, standing alone, enough to invalidate a facially neutral ordinance. But, the court found the district court should have taken into account circumstantial evidence of discriminatory motivation—as expressed by individual council members participating in the decision—when reviewing what was otherwise a facially neutral ordinance restricting group homes. It also found, among other things, that the plaintiffs were not required to identify similarly situated individuals who were treated better than those subjected to the ordinance.

Image courtesy of Flickr by Brian Turner (creative-commons license, no changes made).