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Supreme Court Accepts First Amendment Retaliatory Arrest Case

Posted in Case Notes Commentary Roundup on November 14, 2017 By Lann McIntyre

Lozman v. City of Riviera Beach is a double redux. The Supreme Court ruled on this case in 2013 on a maritime issue. The Court agreed to decide the issue this case presents in 2011, but ultimately failed to rule on it then.

What if a police officer arrests someone in retaliation for engaging in speech protected by the First Amendment but the officer also had probable cause to arrest that person for a different, legitimate reason? In Lozman v. City of Riviera Beach the Supreme Court will decide whether that person may sue the police officer for violating his or her First Amendment rights. Continue reading →

Supreme Court Tentatively Allows City Claims Against Banks for Discriminatory Lending to Proceed

Posted in Case Notes Commentary IMLA Briefs on May 11, 2017 By Lann McIntyre

The glass is more than half full after the Supreme Court’s ruling in Bank of America v. Miami , but not as full as local governments would like. The Supreme Court could have completely shut down local government lawsuits against banks for discriminatory lending practices—but it didn’t. The Supreme Court also could have made it easier for local governments to prove these cases—but it didn’t.

In Bank of America v. Miami , the Supreme Court held 5-3 that local governments have “standing” to bring Fair Housing Act (FHA) lawsuits against banks alleging discriminatory lending practices. But to win these claims local governments must show that their injuries were more than merely foreseeable. The State and Local Legal Center (SLLC) filed an amicus brief in this case on the side of the City of Miami. Continue reading →

Supreme Court to Decide How Far Asset Forfeitures May Go

Posted in Case Notes Commentary on June 16, 2015 By Lisa Soronen, Executive Director, SLLC

Sila Luis was indicted on charges related to $45 million in Medicare fraud. Unsurprisingly, 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. She wanted to use them to hire an attorney.

The question in Luis v. United States is whether not allowing a criminal defendant to use assets not traceable to a criminal offense to hire counsel of choice violates the Sixth Amendment’s right to counsel.

This case is relevant to state and local government for a few reasons. First, while the asset forfeiture in this case likely went to reimburse the federal government for the Medicaid fraud, generally, law enforcement involved receive asset forfeitures. Second, some state asset forfeiture laws, like the federal statute in this case, allow untainted assets to be substituted. Third, in some instances state and local governments, like the federal government in this case, are the victim of a fraud and seek to recoup as much of their losses as possible. Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on November 24, 2014 By Kira Klatchko

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

First Circuit

Watchtower Bible and Tract Soc. of New York v. Mun. of San Juan, No. 13-1605 (Nov. 20, 2014): The court upheld injunction against municipalities that had issued permits for gated communties in Puerto Rico that did not provide access to public streets for First-Amendment activities.

Third Circuit

Dougherty v. Sch. Dist. of Philadelphia, No. 13-3868 (Nov. 21, 2014): The court affirmed denial of motion for summary judgment on qualified immunity grounds in case presenting First-Amendment retaliation claim.

Sixth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on November 17, 2014 By Kira Klatchko

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

Fourth Circuit

West v. Murphy, No. 13-2014 (Nov. 14, 2014): The court affirmed that defendants were entitled to qualified immunity in 1983 action challenging strip searches of arrestees on Fourth-Amendment grounds.

Sixth Circuit

Williams v. City of Cleveland, No. 13-4162 (Nov. 10, 2014): The court ruled that plaintiff stated a plausible Fourth-Amendment claim when it alleges that jail required detainees to undress in presence of other detainees and sprayed their naked genitals with delousing solution.
Misewicz v. City of Memphis, No. 14-5053 (Nov. 14, 2014): The court affirmed grant of summary judgment for City in challenge under Fair Labor Standards Act regarding overtime pay.
S.L. v. Pierce Twp. Bd. of Trustees, No. 13-3892 (Nov. 17, 2014): The court affirmed summary judgment orders for defendants in case arising out of arrest of juvenile. Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on November 10, 2014 By Kira Klatchko

Here are the last two weeks’ published decisions involving local governments:

Second Circuit

Golodner v. Berliner, No. 12-1173 (Oct. 27, 2014): In 1983 action alleging that City and City officials retaliated against Golodner for exercising his First-Amendment rights, the court affirmed that defendants were not entitled to summary judgment on the basis of qualified immunity.
Berman v. City of New York, No. 13-598 (Oct. 29, 2014): The court certified two questions to the New York Court of Appeals in suit challenging City law that regulates debt-collection agencies.
Harris v. O’Hare, No. 12-4350 (Oct. 30, 2014): In suit claiming that officers violated the Fourth Amendment when they entered yard and shot and killed family dog, the court found that there was insufficient evidence of exigent circumstances to permit warrantless search.
Floyd v. City of New York, No. 13-3088 (Oct. 31, 2014): The court ruled that public-sector unions may not intervene into litigation concerning City’s “stop-and-frisk” policy where the parties to the ligitation have agreed to settlement.

Sixth Circuit Continue reading →

What’s Next for Same-Sex Marriage?

Posted in Commentary on October 9, 2014 By Lisa Soronen, Executive Director, SLLC

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. 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 →

The Supreme Court and Simple Math

Posted in IMLA Briefs on September 23, 2014 By Lisa Soronen, Executive Director, SLLC

Its simple math. Really. But will the Supreme Court do it? The Eleventh Circuit refused.

The question in Alabama Department of Revenue v. CSX Transportation is whether a state discriminates against rail carriers in violation of federal law even when rail carriers pay less in total state taxes than motor carriers? No, argues the State and Local Legal Center (SLLC) in an amicus brief. Forty-two states exempt motor carriers from sales tax on diesel fuel. This case is relevant to local government because a number of cities and counties in Alabama impose an additional sales tax on railroad diesel fuel.

Rail carriers (railroads) in Alabama pay a four percent sales tax on diesel fuel. Motor carriers (trucks) pay an excise tax of 19-cents per gallon and no sales tax. The Railroad Revitalization and Regulatory Reform Act (4-R) prohibits state and local governments from imposing taxes that discriminate against railroads. Since CSX filed its complaint, railroads paid less in sales tax than trucks paid in excise tax. But, the Eleventh Circuit refused to compare the total taxation of railroads and trucks to avoid the “Sisyphean burden of evaluating the fairness of the State’s overall tax structure.” Instead it concluded Alabama’s sales tax on railroads violates 4-R because Alabama’s competitors don’t pay it.

The SLLC brief argues that given state’s traditional power to tax the Court should interpret 4-R narrowly. The brief suggests the Court could take three approaches to rule in favor of Alabama. Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on September 23, 2014 By Kira Klatchko

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

Second Circuit

Chabad Lubavitch of Litchfield County, Inc. v. Litchfield Hist. Dist. Comm’n, No. 12-1057 (Sept. 19, 2014): The court ruled, in Religious Land Use and Instiutionalized Persons Act challege to historic district’s denial of application to modify property for religious use, that district court: (i) erred in finding that rabbi lacked standing; and (ii) applied the wrong standard to determine that the historic district was entitled to summary judgment under RLUIPA.

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

Posted in Monday Morning Review on September 16, 2014 By Kira Klatchko

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

Ninth Circuit

Butler v. Nat. Comm. Renaissance of Cal., No. 11-55806 (Sept. 12, 2014): The court affirmed that 1983 action challenging warrantless search of apartment was untimely.

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 →

Can You Hear Me Now? If Not, Read This

Posted in IMLA Briefs on August 28, 2014 By Lisa Soronen, Executive Director, SLLC

In T-Mobile South v. City of Roswell, the Supreme Court will decide whether a letter denying a cell tower construction application that doesn’t explain the reasons for the denial meets the Telecommunications Act of 1996 (TCA) “in writing” requirement. The State and Local Legal Center’s (SLLC) amicus brief, which IMLA joined, argues it does.

T-Mobile applied to construct a 108-foot cell tower in an area zoned single-family residential. The City of Roswell’s ordinance only allowed “alternative tower structures” in such a zone 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 that would be about 25-feet taller than the pine trees surrounding it.

After a hearing, where city councilmembers stated various reasons for why they were going to vote against the application, Roswell sent T-Mobile a brief letter saying the application was denied and that T-Mobile could obtain hearing minutes from the city clerk. Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on August 11, 2014 By Kira Klatchko

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

Fourth Circuit

Cherry v. Mayor and City Council of Baltimore City, No. 13-1007 (Aug. 6, 2014): In case brought by active and retired Baltimore police officers and fire fighters who participate in City’s pension plan, reversing district court’s decision that the City had violated the Contract Clause and affirming that the City had not violated the Takings Clause by changing how it calcualtes pension benefits.

Fifth Circuit

Thompson v. Mercer, No. 13-10773 (Aug. 7, 2014): In 1983 action against officer who shot and killed individual who had stolen vehicle and led police on a two-hour, high-speed chase, affirming grant of qualified immunity to officer because use of deadly force was not a constitutional violation.
Sullo & Bobbitt v. Milner, No. 13-10869 (Aug. 6, 2014): In unpublished decision, affirming dismissal of case brought by attorneys claiming First-Amendment right to access misdemeanor court records within one day of their filing.

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on July 7, 2014 By Kira Klatchko

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

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 →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on June 23, 2014 By Kira Klatchko

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

First Circuit

Thayer v. City of Worcester, No. 13-2355 (June 19, 2014) (affirming denial of preliminary injunction against enforcement of city ordinances prohibiting coercive or risky behavior by panhandlers).

Second Circuit Continue reading →

Lane v. Franks: The Good, the Bad, the Ugly

Posted in Case Notes Commentary on June 20, 2014 By Lisa Soronen, Executive Director, SLLC

The Supreme Court held unanimously that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by a subpoena, outside the course of his or her ordinary responsibilities.

The good: The Court was clear that if employees admit to wrongdoing while testifying they can still be disciplined and that false or erroneous testimony or testimony that unnecessarily discloses sensitive, confidential, or privileged information may balance the Pickering scale in the employer’s favor.

The bad: The Court read “official job duties” narrowly to exclude speech about information merely learned at the job.

The ugly: The Court doesn’t decide the obvious next question: is an employee’s truthful sworn testimony, which is part of an employee’s ordinary responsibilities, protected by the First Amendment? Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on May 12, 2014 By Kira Klatchko

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

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

City of Pontiac Retired Employees Assoc. v. Schimmel, No. 12-2087 (May 5, 2014) (vacating order denying preliminary injunction and remanding on questions related to whether emergency manager could reduce and eliminate health-care benefits for retired City employees).

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on April 28, 2014 By Kira Klatchko

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

First Circuit

Green Mountain Realty Corp. v. Leonard, No. 13-2163 (Apr. 23, 2014) (finding that district court improperly granted summary judgment to Town on cell phone provider’s claim that Town “prohibited” it from providing service under 47 U.S.C. 332(c)(7) of the Communications Act).

Third Circuit

Hallsey v. Pheiffer, No. 13-1549 (Apr. 24, 2014) (reversing district court’s summary judgment for officers on fabrication, malicious prosecution, and coercion claims, in case arising out of suit brought by individual wrongly imprisoned for 22 years).

Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on March 24, 2014 By Kira Klatchko

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

Third Circuit

Delaware County v. Federal Housing Finance Agency, No. 13-2163 (Mar. 18, 2014) (finding that Freddie Mac and Fannie Mae are exempt from paying real estate transfer taxes). The decision is consistent with recent decisions from the Fourth, Seventh, and Eighth Circuits.

Seventh Circuit

Mulholland v. Marion County Election Bd., No. 13-3027 (Mar. 20, 2014) (finding that federal-court abstention is not appropriate in case challening local election restrictions).

Ninth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on February 10, 2014 By Kira Klatchko

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

Second Circuit

Rosu v. City of New York, No. 13-243 (Feb. 7, 2014) (finding that the procedures of the New York City Commission on Human Rights satisfy due process).

Sixth Circuit

Reed v. Franklin County, No. 13-3119 (Feb. 6, 2014) (affirming summary judgment for County and county-jail officers in case alleging that officers used excessive force and violated privacy rights).

Seventh Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on December 29, 2013 By Kira Klatchko

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

Seventh Circuit

Swetlik v. Crawford, No. 12-2675 (Dec. 23, 2013) (affirming grant of summary judgment against police detective who sued City and officers alleging that they violated his First-Amendment rights by voting to file a termination charge against him).
DeKalb County v. Federal Housing Finance Authority, No. 1301558 (Dec. 23, 2013) (holding that Fannie Mae is exempt by statute from real-estate transfer taxes levied by state or local governments).

Ninth Circuit

Patel v. City of Los Angeles, No. 08-56567 (Dec. 24, 2013) (en banc) (finding that City requirement that hotel guest records be made available for police inspection is facially invalid under the Fourth Amendment).

Eleventh Circuit

Franklin v. Gay, No. 13-10129 (Dec. 23, 2013) (finding that officers accused of sexually assaulting detainee were entitled to qualified immunity because Franklin has failed to plead a constitutional violation).

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on December 23, 2013 By Kira Klatchko

Here are published decisions involving local governments from the federal appellate courts from December 16, 2013, through December 20, 2013:

Sixth Circuit

Hocker v. Pikeville City Police Dep’t, No. 13-5341 (Dec. 17, 2013) (affirming that no constitutional violation occurred in 42 U.S.C. 1983 action based on officers’ alleged use of excessive force).

Seventh Circuit

Fluker v. County of Kankakee, No. 13-2247 (Dec. 20, 2013) (affirming dismissal of suit against County and officers arising out of auto accident that occurred during transport of prisoner, under Prisoner Litigation Reform Act).

Eighth Circuit Continue reading →

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on October 8, 2013 By Kira Klatchko

Here’s how local governments fared in the federal courts of appeals during the past week.

First Circuit

National Association of Tobacco Outlets v. City of Providence, No. 13-1053 (Sept. 30, 2013) (finding that City’s tobacco-sales ordinance, designed to reduce youth tobacco use, does not violate First Amendment and is not preempted)

Fifth Circuit

Marceaux v. Lafayette City-Parish Consolidated Government, No. 13-30332 (Sept. 30, 2013) (finding that district court improperly granted protective order requiring officers suing police department to remove website)

Eleventh Circuit

Dawkins v. Fulton County Government, No. 12-11951 (Sept. 30, 2013) (declining to apply equitable estoppel to extend Family Medical Leave Act coverage for County employee who brought claim that did not qualify under FMLA).
T-Mobile South, LLC v. City of Roswell, No. 12-12250 (Oct. 1, 2013) (ruling that City satisfied “in writing” requirement under Communications Act by sending letter notifying cell-tower applicant that it had denied permit application and referencing minutes of hearing)

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on September 30, 2013 By Kira Klatchko

Here’s how local governments fared in the federal courts of appeals during the past week.

Fifth Circuit

United States v. City of New Orleans, No. 13-30161 (Sept. 27, 2013) (upholding denial of City’s motion to vacate consent decree regarding police practices).

Sixth Circuit

Bessie Jones v. City of Cincinnati, No. 11-4174 (Sept. 27, 2013) (reversing district court’s denial of qualified immunity to police officers regarding excessive-force and failure-to-provide-medical-care claims).

Tenth Circuit

Olson v. City of Golden, No. 11-1454 (Sept. 25, 2013) (dismissing as moot a challenge to City’s campaign-finance regulations after the City had amended the regulations, and affirming district court’s denial of other claims against the City).

Eleventh Circuit

Carter v. City of Melbourne, No. 12-15337 (Sept. 23, 2013) (finding City not liable for unlawful termination of former officer because decisions were not made by a “final policymaker” for the City, and rejecting other claims, including that officer was terminated for his First Amendment activities).