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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
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
Today the U.S. Supreme Court issued opinions in University of Texas Southwestern Medical Center v. Nassar and Vance v. Ball State University. Both decisions are employer wins.
University of Texas addressed the causation standard a plaintiff must meet to prevail on a Title VII retaliation claim. In that case the Fifth Circuit had held that plaintiff was entitled to prevail as he established at trial that retaliation as a motivating factor in an adverse employment action. The Supreme Court rejected that standard, instead holding that plaintiff must show that retaliation was the but-for cause of the challenged employment action.
In Vance the court limited the class of employees considered supervisors for the purpose of imposing strict liability on an employer for coworker harassment. Vance held that to be a supervisor the harasser must have the authority to take tangible employment actions against the victim. The court went on to identify hiring, firing, failure to promote, reassignment with significantly different responsibilities, or significant changes in benefits as the type of employment actions considered “tangible” for the purpose of this definition.
The Ninth Circuit has adopted a less rigorous causation standard for retaliation cases than called for under University of Texas. That will now change. From a quick check of Ninth Circuit cases the impact of Vance was unclear.
Tow trucks are motor carriers for the purpose of 49 U.S.C. §14501(c), which preempts state or local regulation of motor carriers transporting property. That law provides various exceptions permitting the regulation of safety, insurance coverage, price for nonconsensual tows, or requirements for property owner presence when the tow occurs. Not addressed in this scheme is the authority to regulate the disposal of towed vehicles. The Supreme Court has now ruled that such regulation is not preempted under federal law. In doing so the court limited the scope of preemption under 49 U.S.C. §14501(c) to the regulation of activities of the motor carrier while it has property in transit. The court found that transportation ended in this case once the car was delivered to the impound yard. Once that occurred the state was free to regulate the towing company’s activities, including how it disposed of the vehicle.
The case is Dan’s City Used Cars, Inc., v. Pelky and you can read the full opinion here.
I hated English class when I was in school. Diagraming sentences and picking apart the meaning of books seemed like an exercise in missing the forest for the trees. So I became a lawyer, where I pick apart people’s testimony and courts’ opinions. Go figure!
I’m reminded of this by this morning’s U.S. Supreme Court opinion in Missouri v. McNeilly, which rejected the argument that the natural dissipation of alcohol in the blood stream always creates the type of exigent circumstances that justify a warrantless blood test of a suspected drunk driver. It’s another one of those Supreme Court decisions with multiple concurrences that requires you to diagram which justices agreed with which parts to fully understand the opinion.
To save you the trouble, a majority of the justices agreed in Missouri v. McNeilly that the dissipation of alcohol in the bloodstream could create exigent circumstances; it just didn’t in this case. They also dropped a broad hint on how to show exigency in future DWI cases:
“[T]he fact that a particular drunk-driving stop is ‘routine’ in the sense that it does not involve ‘special facts,’ such as the need for the police to attend to a car accident, does not mean a warrant is required. Other factors present in an ordinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search. The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case.”
I posted on Reichle when the Supreme Court issued its opinion in June It was hoped that the court would use that case to answer the question; does probable cause bar a First Amendment retaliatory arrest claim? Instead it avoided the issue by finding the defendants entitled to qualified immunity stating; “This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest.” In my post I commented on the confusing Ninth Circuit case law on this issue. That confusion may now have cleared.
Yesterday the Ninth Circuit issued its opinion in Acosta V. City Of Costa Mesa, which addressed the constitutionality of a city ordinance governing public conduct at council meetings. It found the ordinance overly broad but upheld the ordinance by striking the offending language.
Acosta also may have cleared up the confusion addressed in my earlier post when it found that the arresting officers entitled to qualified immunity. In doing so it cited to Reichle for the proposition that there was no clearly established First Amendment right to be free from a retaliatory arrest that is otherwise supported by probable cause.
One caution. The Acosta court viewed this arrest as being supported by strong probable cause. Because existing Ninth Circuit case law denied qualified immunity only where the probable cause was weak, it could be argued that the Acosta decision broke no new ground.
My prior post can be accessed here.
When the Supreme Court accepted review in Reichle v. Howards, it seemed the stars had aligned for a definitive ruling on the question; does probable cause bar First Amendment retaliatory arrest claims? So much for celestial alignment! The opinion issued this morning is not the big bang law enforcement was looking for. Instead, the court avoided the issue, finding that the Tenth Circuit erred in denying defendants qualified immunity due to the lack of clear precedent in that circuit.
So where does that leave law enforcement in the Ninth Circuit? In 2006 the Ninth Circuit held that probable cause does not bar retaliation claims. In light of this, courts in this circuit are unlikely to dismiss claims resulting from arrests made on weak probable cause, so long as plaintiff has some evidence to support the retaliation element of the claim. Where strong probable cause exists, the outcome is less certain. In a 2008 opinion the Ninth Circuit held that cases with strong probable cause but weak evidence of retaliatory motive fell outside circuit precedent and are properly dismissed. This suggests that the law has not developed sufficiently to provide adequate direction to law enforcement officers acting under those circumstances, making qualified immunity appropriate.
Yesterday the Supreme Court handed down its decisions in two cases I have been closely following. Florence v. Board of Chosen Freeholders of County of Burlington, et al., addressed correctional policies that require the strip searching of individuals prior to their housing in a jails general population. The court upheld such a policy, which was under attack on Fourth Amendment grounds. Rehberg v. Paulk addressed immunity for law enforcement officers who testify in grand jury proceedings. The Supreme Court ruled that the same absolute immunity that trial witnesses enjoy applies to grand jury witnesses.
I will blog more on these cases after I have a chance to read them in detail. From a quick read of Rehberg, it appears to be a big victory, with the court limiting LEO exposure to malicious prosecution claims to conduct such as providing false information when applying for a arrest warrant or to get a DA to prosecute. Florence appears to be consistent with changes in Ninth Circuit strip search standards over the last few years. Some commentators have suggested that the opinion is not a complete victory for jail commanders, with the court leaving significant restrictions in place. I will write further on these later.
That question arises from today’s opinion in United States v. Jones. In Jones, a divided Supreme Court found that law enforcement violated the Fourth Amendment when it placed a GPS device on a suspect’s car. While the result was not particularly surprising, how the court got there was.
Ever since Katz v. United States, 389 U. S. 347 (1967), the court has answered Fourth Amendment questions by considering whether the government’s action invaded an expectation of privacy protected under the Constitution. Prior to Katz, a Fourth Amendment violation arose only when the government trespassed on an individual’s person, property or papers. In Jones, Justice Scalia reaches back 45 years and resurrects this trespass theory of Fourth Amendment jurisprudence, holding that an unconstitutional search occurred because the officers trespassed by attaching the GPS device to the suspect’s car.
The majority opinion makes clear that it is not doing away with the “privacy” branch of Fourth Amendment jurisprudence, a point Justice Sotomayor drives home in her concurrence. While agreeing that the Fourth Amendment protects against governmental trespass, she makes clear that the Fourth Amendment also protects against governmental intrusion on reasonable expectations of privacy, regardless of whether the government trespasses in the process.
So for now there are two balls in the air — trespass and privacy — and law enforcement must keep their eyes on both!
Tom Goldstein makes an important clarification in this post on the Scotus blog. In Jones the court only decided that a search took place. It did not address if that search required a warrant, finding that the government had failed to preserve that argument below. There are a number of exceptions to the warrant requirement and it is entirely possible that a future opinion of the court could find no warrant required for the short term use of GPS Monitoring. Read Tom’s excellent post for more analysis.
Today the Supreme Court granted review of one of the petitions to watch highlighted in our Supreme Court Preview.
In Armour, et al., v. Indianapolis, et al., the City adopted a new way to finance sewer improvements, easing the transition by discharging outstanding assessments. Taxpayers who had already paid the old assessment sued for refunds, claiming violation of the Equal Protection Clause of the Fourteenth Amendment. The Indiana Supreme Court found that the City did not violate the Equal Protection Clause because its decision was rationally related to a legitimate governmental interest. The Supreme Court is now set to weigh in on the following question:
“Whether the Equal Protection Clause precludes a local taxing authority from refusing to refund payments made by those who have paid their assessments in full, while forgiving the obligations of identically situated taxpayers who chose to payover a multi-year installment plan.”
In Garcetti v. Ceballos the Supreme Court held that speech of a government employee on a matter of public concern is not protected by the First Amendment when they are speaking in the course of their duties as a government employee. In Byrne the Second Circuit found that rule did not apply to a claim of retaliation based on a refusal to make a false statement in a police report.
Jackler was a probationary officer with the Middletown, New York police department. While on duty he witnessed a use of force by his sergeant. As required by department policy he filed an incident report. In it he reported the sergeant as using force against a handcuffed suspect seated in the back of Jackler’s closed patrol car, apparently in retaliation for being called a name. Jackler claimed that defendants pressured him to change his report to conceal the misconduct. When that failed, they retaliated by recommending that that Jackler not be retained as a permanent police officer and that he be terminated as a probationary officer. According to Jackler, they supported their recommendation with false, incomplete, and misleading information, about Jackler’s job performance.
The District Court dismissed Jackler’s claim, finding it precluded under Garcetti. The Second Circuit reversed, finding that plaintiff was not speaking as a government employee when he resisted the pressure to change his report. Instead, according to the Second Circuit, Jackler was exercising a citizens First Amendment right to refuse to retract a truthful report to the police, to refuse to make a false statement, and to refuse to engage in unlawful conduct.
Interestingly, just a month before the Second Circuit issued its opinion, the DC Circuit published its decision in Bowie v. Maddox. Bowie claimed he was fired in retaliation for exercising his First Amendment rights when he refused to sign an allegedly false affidavit his governmental employer drafted in response to an employment discrimination claim. The DC Circuit upheld the District Courts dismissal of this claim, finding that Bowie was not speaking “as a citizen” when he refused to sign the affidavit. (Opinion here).
Bowie petitioned for rehearing the day before the Second Circuit issued its opinion in Byrne, giving the DC Circuit the opportunity to address that decision in its ruling denying rehearing. It concluded that the standard adopted by the Second Circuit in Byrne “. . . is about as useful as a mosquito net made of chicken wire . . .” (Opinion here).
In law school I was taught that bad facts make bad cases. If true, the facts alleged by plaintiff in Byrne v. Jackler are very bad. (A high level cover-up by police officials of an unconstitutional use of force). The Second Circuit was clearly bothered by these facts, as was the District Court. (The Byrne opinion notes that the District Court “ruled–reluctantly”). The problem is that “bad fact” have unintended results. In this case if defendants admitted that they retaliated against plaintiff, not for his refusal to change his report, but because of what he wrote in the report in the first place, would He still get to a jury? Even the Second Circuit would agree that termination for what he wrote in the report would not be actionable under Garcetti, otherwise they need not have split the hairs so closely. But if plaintiff still gets his day in court, doesn’t that eviscerate the holding in Garcetti. After all, what plaintiff’s counsel in their right mind would allege that the retaliation was for what their client wrote, when alleging it was for they refused to write guarantees a jury trial!
The defendants are asking the Supreme Court to review two questions:
(1) May a government employer, free of First Amendment liability, discipline an employee for his refusal to prepare a job-related report?
(2) Is there an exception to Garcetti v. Ceballos for law enforcement employees?
Hopefully the Supreme Court will accept review to resolve this clear conflict between the circuits.
UPDATE: The Supreme Court denied review of both this case and Bowie on February 27, 2012.