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First Suit Filed Over Sanctuary Cities Order

The City and County of San Francisco filed a federal lawsuit today challenging President Donald Trump’s anti-sanctuary city executive order.  The suit claims that the order is unconstitutional and exceeds the president’s power. In addition to the executive order, the suit cites documents issued by the Department of Justice last year which gave an expansive interpretation to 8 U.S.C. 1373, the statute relied upon to justify defunding sanctuary cities.  According to the Complaint:

“This lawsuit is about state sovereignty and a local government’s autonomy to devote resources to local priorities and to control the exercise of its own police powers, rather than being forced to carry out the agenda of the Federal government. Under the Constitution and established principles of federalism, state and local governments have this autonomy. The Executive Order purports otherwise to wrest this autonomy from state and local governments, and a court order is needed to resolve this controversy.”

8 U.S.C. 1373 bars governmental entities from prohibiting or restricting the communication of individual immigration status to or from the immigration service. In a guidance document, DOJ imposed a requirement that state and local governments inform employees of the limitations the statute places on state and local governments. In an earlier memo, the department’s Office of Inspector General also suggested that state and local policies on the handling of immigration holds might violate that statute.

City and County of San Francisco v. Donald J Trump Complaint

Office of Justice Programs Guidance Regarding Compliance with 8 U.S.C. § 1373

Memorandum to the Office of Justice Programs Regarding Grantee Compliance with 8 U.S.C. § 1373

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.

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.

Two Title VII Wins for Employers

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.

Can Coworkers Conspire for Purposes of Section 1983?

It’s not unusual for civil rights actions to include claims that the defendants conspired to violate the plaintiff’s rights. Nahmod Law has an interesting post on an Eleventh Circuit case reversing a district court’s order denying coworkers qualified immunity for a § 1983 conspiracy claim. The reason was the Intracorporate Conspiracy Doctrine, which holds a corporation and its employees acting within the scope of their employment are a single actor. This negates the multiplicity of actors necessary for the formation of a conspiracy.
It is unclear if the Ninth Circuit would apply the Intracorporate Conspiracy Doctrine to bar civil rights conspiracy claims involving coworkers. In Portman v. Cnty. of Santa Clara, 995 F.2d 898 (9th Cir. 1993) it avoided the issue in the context of a § 1985 conspiracy claim. In Schmitz v. Mars, Inc., 261 F.Supp.2d 1226 (D. Or., 2003) Judge Brown applied the doctrine to a § 1985 conspiracy claim, which she dismissed. Judge Wake of the District of District of Arizona applied the doctrine in dismissing § 1983 conspiracy claims in Donahoe et al v. Arpaio et al. However, other district courts rejected its application to civil rights claims.

Reichle v. Howards Revisited

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.

Does Probable Cause Trump the First Amendment; the Supreme Court Takes the Fifth

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.

Two Big Wins for Law Enforcement

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.