Supreme Court holds seizure constitutional despite officers’ mistake of law

Supreme Court decisions are often hard to read. Not its opinion in Heien v. North Carolina. Instead of reading what I have to say, just read Justice Roberts’ thirteen page majority opinion. Any questions you have are answered in Justice Kagan’s three page concurrence. Bottom line, a reasonable mistake of law does not make a search or seizure unconstitutional so long as the mistake is not about the contours of the Fourth Amendment itself.

Note to civil practitioners: Don’t skip this opinion simply because it is a criminal case. It also discusses qualified immunity.


Past threats support adverse employment action even without evidence of future dangerousness

When employers learn of threatening conduct by employees they often schedule a fitness for duty exam to determine if that employee presents an ongoing threat. May an employer still discipline for that past threatening conduct if the examiner concludes the employee is not a threat? The Ninth Circuit answered that question yes in yesterday’s opinion in Curley V. City of North Las Vegas.

In December 2008, Curley filed a charge of discrimination with the EEOC, alleging that the City had failed to accommodate his hearing impairment and that it was retaliating against him for having filed a prior charge of retaliation and race and age discrimination. The next month he requested a new accommodation for his hearing loss, which the City also rejected. Instead the City recommended that he use dual hearing protection. Shortly after this Curley responded inappropriately to a coworker’s request that Curly remove his hearing protection so they could talk about a work related task. The City placed Curly on leave and started an investigation into his behavior, which included a fitness for duty exam. While the examiner concluded that Curly was fit for duty and not a danger, the investigation found that Curley had repeatedly threatened coworkers, supervisors, and their families. This included threats of violence.

After a hearing, the City discharged Curley for his past threatening behavior as well as other workplace misconduct uncovered in the investigation. His subsequent claim for ADA discrimination and retaliation was dismissed by the District Court on summary judgment. In upholding the District Court, the Ninth Circuit only addressed the employer’s nondiscriminatory reasons for termination, assuming for that purpose that Curley could establish a prima facie case of retaliation and discrimination. To support its termination decision, the City cited Curley’s past threatening behavior as well as the other misconduct uncovered by the investigation. Curley argued that the  fitness for duty findings sufficiently contradicted  the stated reasons for his termination that a jury trial was required to determine the true motivation for the employers action. The court rejected that argument. According to the court:

“The City’s notice of termination specifically relied on Curley’s history of intimidating coworkers. Nothing in the fit-for-duty evaluation addressed that history. Thus, even if the City had Curley evaluated to determine whether he posed a danger to other employees, the City represented that it fired him for past threats, not for the potential of future violence. Curley presented no evidence that the City’s reliance on past threats was actually pretext for discrimination.”

Employment litigators are advised to read footnote 3 to the opinion. In it Judge Friedland details when a plaintiff’s successful attack on one of an employers proffered nondiscriminatory reasons for an adverse employment action is sufficient to undermine all the employers reasons. In this case the court concluded that even if plaintiff’s attack on the past threat reason were successful, that argument did not undermine the remaining reasons offered by the employer, providing a second reason to affirm the District Courts ruling.

Supreme Court Preview – October 2014 Term

In less than two weeks the U.S. Supreme Court will again start holding oral arguments. One of the first cases up is a search and seizure case!

Below are cases accepted for review which may be of interest to government litigators and their clients. Each case is linked with its docket on the Scotus Blog, where you can access the briefs. If available, a link to the Legal Information Institute’s argument preview has also been provided.

Heien v. North Carolina – Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.
Argument: October 6, 2014

Holt v. Hobbs – Does a prison policy that restricts beards on inmates violate the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).
Argument: October 7, 2014

Dart Cherokee Basin Operating Company, LLC v. Owens – Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal.
Argument: October 7, 2014

T-Mobile South, LLC v. City of Roswell, GA – Must a decision denying a request to place, construct, or modify a cell tower state the reasons for the denial, for a state or local government to satisfy the Communications Act’s “in writing” requirement.
Argument: November 10, 2014

Young v. United Parcel Service – Whether, and in what circumstances does the Pregnancy Discrimination Act require an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
Argument: December 3, 2014

Reed v. Town of Gilbert, Arizona – whether a municipal sign ordinance, which differentiates between certain types of temporary noncommercial signs, is consistent with the First Amendment.
Argument: Not Yet Scheduled

Mach Mining v. Equal Employment Opportunity Commission – Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.
Argument: Not Yet Scheduled

Will that employment release land you in more trouble, the EEOC strikes out!

A few months back I posted on this subject after the EEOC sued CVS over terms of its severance agreement which are in common use. Now comes word that the District Court has dismissed the EEOC lawsuit for failing to state a valid claim. No written decision has been issued yet, but your can find more details, including links to the briefs, at Eric Meyer’s The Employer Handbook blog. His excellent blog first alerted me to the original lawsuit.

Village at Main Street, the County Wins Round III

It ain’t over till it’s over! This long running battle between a taxpayer and Clackamas County has now spawned three Supreme Court opinions, in the process providing a history lesson on real property assessment in Oregon.

It all starts in 2005, when an employee of the assessor’s office visited an apartment complex under construction in Clackamas County. At that point site improvements were mostly complete, but the buildings were not. The assessor’s office failed to factor the value of those site improvements into the land value of that property for the following two tax years. Realizing this error, in 2007 the assessor added the value of the site improvements as “omitted property”. Taxpayer appealed that decision, resulting in the Supreme Court’s opinion in Village I, holding that the site improvements did not qualify as omitted property. Round one to the taxpayer.

While Village I was pending in the Supreme Court, taxpayer petitioned the Tax Court for attorney fees. The Tax Court granted that petition, finding an award of fees to be appropriate whenever the losing governmental party appeals from a well-reasoned opinion of its Magistrate Division. In Village II the Supreme Court rejected that standard. It also reversed the award, finding the County had an objectively reasonable basis to appeal the magistrates ruling in light of the serious issue of statutory construction addressed in Village I. Round II to the County.

This brings us to Round III. In addition to the omitted property issue, taxpayer also appealed the valuation of improvements to its property. That litigation was stayed during litigation of the omitted property issue. The Supreme Courts Village I decision now brought that issue front and center. But first the legislature tossed a wrench into the works!

When the improvement value was appealed, Oregon limited the issues on appeal to only the component of assessed value challenged by the party filing the appeal. This rule could result in an under assessment if the total valuation was correct, but that assessment was not correctly allocated between land and improvement values. During the 2011 session the legislature addressed this issue, amending ORS 305.287 to permit the non-appealing party raise the value of the unappealed component. This change took effect while taxpayer’s improvement value appeal was pending before the Regular Division of the Tax Court. Citing that amendment, the County moved to raise the issue of land value in response to taxpayers improvement value appeal. The Tax Court denied that motion, interpreting the amended statute as applying only to appeals to the Magistrate Division. This is the issue decided yesterday by the Supreme Court in Village III. Its conclusion, the unappealed value component can be raised at any level of appeal except for an appeal before the Supreme Court. Round III to the County.

Yesterday’s opinion ended by remanding this case to the Tax Court for further proceedings. Standby for round IV!

Note: Full disclosure, the author was involved in some of the aspects of this litigation.

Let the Prosecutor Decide!

I was all set to write a long post on the Ninth Circuit’s decision in Tatum v. Moody, then I found that Daniel Barer at the Government Liability Update had beat me to it! Read his post for the juicy details!

In Tatum, the Ninth Circuit held that under some circumstances law enforcement officers may be liable under § 1983 if they withhold exculpatory information from prosecutors. According to the court:

“Where, as here, investigating officers, acting with deliberate indifference or reckless disregard for a suspect’s right to freedom from unjustified loss of liberty, fail to disclose potentially dispositive exculpatory evidence to the prosecutors, leading to the lengthy detention of an innocent man, they violate the due process guarantees of the Fourteenth Amendment.”

Unlike a lot of court decisions, the Tatum court also tells officers how to avoid this liability, don’t hide information from the prosecutor. As the court notes, prosecutors have a global perspective on the case, a rigorous understanding of the applicable law, and legal authority to dismiss charges, if appropriate. So tell them everything and let them decide what needs to be disclosed!

For lawyers handling police practices cases, this is a must read decision. The highlights:

  • It invites Supreme Court review by following circuit precedent that post-arrest incarceration claims arise under the Fourteenth Amendment while footnoting that its holding conflicts with at least one other Circuit, and that a plurality of Supreme Court justices have also suggested the Fourth Amendment governs such claims.
  • It also reconciles some conflicting Ninth Circuit case law in the area.
  • Discusses the distinct responsibilities of jailers, investigating officers and prosecutors faced with claims or evidence that the wrong person has been arrested.

Just be sure to read the whole case as even the last footnote makes an important point!

Sixth Circuit addresses two common questions in police shootings

While this blogs primary focus is on Oregon, Washington and federal cases in the Ninth Circuit, I do keep my eye out for interesting cases from the rest of the county. One such case is the Sixth Circuits decision in Krause v. Jones et al., which upheld the District Courts grant of summary judgment to the defendants in a police shooting.

The Sixth Circuit addresses two issues often raised in police shootings, why didn’t the officers wait the suspect out, and why did they shoot the suspect so many times. It’s a thoughtful decision that gives pause for consideration of these issues. Not just the majority opinion! Judge Marbley’s concurrence is equally thought provoking, particularly in light of the post Ferguson debate over “militarization” of the police.
For those of you looking for the quick answers:

  • The court took no issue with the 20 rounds the officer shot. Earlier this year in Plumhoff v. Rickard, the Supreme Court held that once justified to shoot, officers may continue doing so “until the threat has ended.” Citing to that proposition, the Appeals Court took no issue with the number of shots fired, noting the absence of evidence that the officer continue shooting after he knew the suspect was incapacitated. The Appeals Court attributed the number of shots to the pre-entry decision to engage the automatic function of the gun. According to the court’s opinion: “If it is true that officers may fire ‘15 shots’ in a ‘10-second span’ when the suspect is not even shooting at the officers, as Plumhoff allowed, id., it must be true that officers may return fire with an automatic weapon when they are being fired upon.”
  • The Court of Appeals was similarly unimpressed with the argument that officers should have waited out the suspect, finding the ten hours they had waited to be sufficient. According to the Court:

“The assumption that waiting carried no risks of its own is belied by the reality that, so far as they knew, Krause could have emerged at any point and acted on this threat to ‘come out shooting’ or could have taken his own life during the delay. That is why continuing to wait was not, as the claimant suggests, a risk-free option. The officers reasonably waited until Krause fell asleep and opted to act then. No doubt, the plan did not end well, leaving us with the seen consequences of the officers’ actions (the regrettable death of a child and brother) and the unseen possibilities of what might have been (perhaps no death at all). Yet when the Supreme Court warns lower courts not to judge the reasonableness of an officer’s action from the peace and safety of their chambers “with the 20/20 vision of hindsight,” Graham, 490 U.S. at 396, this is what they mean.”

This decision is not binding in the Ninth Circuit. I am uncertain the Ninth Circuit would have reached the same conclusions. For example, in Sheehan v. City & Cnty. of S.F., the Ninth Circuit partially reversed the grant of summary judgment to officers who shot a mentally ill individual that attacked them with a knife. When the officers initially entered her room to conduct a welfare check, plaintiff grabbed a knife and threatened to kill them. After retreating and calling for backup, the officers reentered the room out of concern for their own safety and the possibility that the individual might escape and injure others. The court found that a jury issue existed as to the second entry, citing testimony from plaintiff’s police practices expert that they should have instead “elected to … relocate to a safer tactical position, call for special units/equipment, and determine the propriety of seeking a warrant.” While factually distinguishable from the situation addressed by the Sixth Circuit, the Sheehan opinion appears to align more closely with the concerns raised by Judge Marbley in his concurring opinion.

A petition has been filed with the Supreme Court seeking review of the Sheehan decision. A response to that petition is due on October 14, 2014. I will be following the case to see if the petition is granted. It too early to tell if further review will be sought in Krause. I would not be surprised to see it also being considered by the Supreme Court for review.

Don’t Touch That Baggie!

Patrol officers bring in an individual arrested for felony drug possession. While processing him for housing, jail deputies run into a problem when the time comes for the visual cavity search. The subject complies with directions to strip, but when instructed to bend, spread and cough, he instead moves his hand toward his right buttock in an apparent attempt to push an item inward. After a struggle, deputies lean the inmate against the wall, bracing his body in such a manner that he ends up being bent over. At that point they see what appears to be a plastic bag partially protruding from subject’s rectum. What do they do now?

Call for a warrant says the Ninth Circuit, because simply removing the bag violates the Fourth Amendment. The opinion can be accessed here.

Trail Trouble!

According to the Rails-to-Trails Conservancy, nationwide over 20,000 miles of former railroad lines have been converted to trails under the Rails-to-Trails program. This program is partly premised on the assumption that railroad right of way originally granted by the federal government returned to government ownership upon abandonment. That assumption has been placed in question by today’s decision in Brandt v. United States, at least to the extent that the railroad obtained its right of way under the terms of the General Railroad Right-of-Way Act of 1875.

In 1908 the Laramie, Hahn’s Peak and Pacific Railroad (LHP&P) obtained 66 miles of right of way across federal land in Wyoming under the provisons of the 1875 Act. In 1976 the Brandt family purchased land from the government which was subject to some of this right of way. Later, a successor railroad sought permission to abandon the line using this right of way. By 2004 all the rails had been removed and abandonment completed. In 2006 the United States initiated an action to quiet title to the abandoned right of way in the United States, arguing that abandoned railroad right of way originally granted across federal land reverted to the government. The District Court found in favor of the government and the Tenth Circuit Court of Appeals affirmed. Today the Supreme Court reversed, finding that under the 1875 Act only granted the railroad an easement to use the property for railroad purpose which easement was extinguished once the railroad stopped using it for railroad purposes.

The exact impact of this decision on the rails to trails program is unclear. Justice Roberts pointed out in his majority opinion that prior to 1875 Congress granted rights of way to railroads under various land-grant statutes. The rights created under those statutes were not addressed by this decision and may or may not still revert to the United States. What is clear is that the legitimacy of trails built on right of way obtained under the 1875 Act are in question, unless rights to use the land for a trail were secured from the underlying land owner. The decision also raises questions for trails proposed for not yet abandoned right of way, as the Brandt decision suggests that right to use that easement, at least if obtained under the 1875 act, ends once the property is no longer used for railroad purposes.

Will that employment release land you in more trouble?

The Ohio Employer Law Blog reports that the EEOC has just filed suit against CVS Pharmacy claiming its standard severance agreement amounted to retaliation for exercise of protected employment rights.  This claim is based on the EEOC’s belief that the agreement potentially restricts employees from filing charges or participating in employment related investigations.

From a review of the complaint it appears that the CVS agreement is similar in form to agreements often used in Oregon and Washington.  The one exception is the cooperation clause, which requires the employee to report any “subpoena, deposition notice, interview request, or other inquiry” they receive seeking information about CVS.  While this is only a lawsuit,  its filing suggests this to be an area of interest to the EEOC, and increased risk to employers. Employers will need to carefully weigh this risk in considering how broadly an employment release is drafted.

Thanks to Eric B. Meyer of the Employers Handbook Blog for bringing this to my attention.