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Recent U.S. Supreme Court Decisions and Other Current Issues for

Local Governments

Presented and prepared by the IMLA Legal Advocacy TeamCharles W. Thompson, Jr.

Amanda Kellar

October 2019

International Municipal Lawyers Association (IMLA)51 Monroe St. Suite 404 • Rockville, MD. 20850

www.imla.org • [email protected]@imla.org • [email protected]

1Copyright © 2019 International Municipal Lawyers Association – All Rights Reserved

mailto:[email protected]

U.S. SUPREME COURT –

1. BEFORE THE COURT

Practice before the Supreme Court has become specialized over the past twenty or so years. A party seeking review by the Court, opposing its review, or participating in a case where the Court has granted certiorari should recognize that the Court is not a court of error. The Court receives almost 10,000 petitions each year. Of these, it grants certiorari in about 80 cases and schedules oral argument for about 70 cases. Because prisoners (and other in forma pauperis petitioners) file the largest number of petitions with the Court, statistics suggest that only about 1% of the petitions filed are granted. If only paid cases filed with the Court are considered, the number increases to about 4%. In other words, the chances of getting the Court to take your case are slim.

While rudimentary, counsel should review Rule 10 of the Supreme Court Rules as part of any consideration as to whether to seek certiorari. The Rule provides a guide to how counsel might structure a petition and ought to provide insight into whether to file a petition at all. The Rule provides:

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power; (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law. Justice Alito recently pointed this out in his concurrence in the denial of certiorari in Salazar-Limon v. City of Houston.

Framing the issue in a petition for certiorari ought to be the second step after reviewing the Rule. As noted, the Court must weed through several thousand requests to find the very few cases it wants to decide. Four Justices must vote to grant certiorari and each of their votes is precious


and well considered. A Justice may believe that an issue ought to be decided, but will withhold the vote to grant certiorari for many reasons. These can include fear that the issue will be decided adversely to the Justice’s views for a variety of reasons including that the arguments advancing the issue in the petition seem leaden and unlikely to attract a majority; or a belief that another case frames the issue better.

The petitions in Lane v. Franks and Integrity Staffing Solutions v. Busk offer two different approaches to framing an issue. The Court granted both petitions. In Lane, the issue was framed succinctly and without prelude; counsel couched the issue in viscerally and intellectually compelling language. In Integrity Staffing Solutions counsel offered a prelude to the similarly succinct issue offering a bit of important background to what might have otherwise appeared a very dull question. Each of these attorneys is a respected Supreme Court counsel who is a sought-after advocate for a reason.

While the Court denies certiorari to many similarly succinct and well phrased issues, many of the petitions it denies are garbled and include far too many issues for the Court’s consideration. A case generally has one compelling reason that can attract the Court’s attention and as with Lane a corollary issue attendant to it. Petitions that offer the Court an opportunity to decide more than two issues are rarely granted and framing the petition to include myriad issues may enjoy client approval, but will rarely find success.

Because the Court receives so many petitions, finding amicus support can often help get the Court’s attention and show that the case has a broader impact. Hearing the Petitioner make that argument can certainly be persuasive, but proof that the issue affects more than just the litigants says much more. Finding an amicus can often be difficult as where there is a circuit split, there will be many potential amici who don’t want to see the law changed in their circuit, or their state court has adopted a rule with which they are happy. The more diverse the group the amicus represents the more likely the Court will recognize the need for deciding the issue.

An amicus can sometimes change the proposed issue as the amicus may have a different view of what the Court should decide. Indeed, an amicus may articulate the issue differently and offer better reasons as to why the Court ought to decide the issue. A recent example of a case in which the Court granted certiorari where IMLA framed the issue differently than the petitioner was in District of Columbia v. Wesby. In Wesby, the petition focused the issues on the specific facts, which involved a trespassing suspect’s claim of an innocent mental state and whether police officers are required to credit that mental state in making probable cause determinations for the purposes of effectuating an arrest. IMLA’s amicus brief presented the issues more broadly and framed the issue outside of the trespassing context.

Additionally, the Court’s rules do not limit the amici to arguing the record and in large measure the Court’s practice encourages the amici to bring to the Court’s attention relevant facts, treatises and studies both at the petition and merits stage. In Comptroller v. Wynne, IMLA filed an amicus brief at the petition stage in support of the State of Maryland and several Maryland counties and the Court sought the views of the Solicitor General. The Solicitor General filed his


views in early April 2014, suggesting that the Court grant certiorari and reverse the Maryland court; he cited to facts offered by IMLA in its amicus brief that were not part of the record. The Court granted certiorari and decided the case as a part of its 2014 Term. Similarly, in Murr v. Wisconsin, which was decided last term, Justice Kennedy cited to the IMLA amicus brief, which listed over 100 examples of merger provisions from around the country in rejecting the petitioner’s argument. And in Pleasant Grove City v. Summum, 555 U.S. 460 (2009), Justice Alito in deciding an important government speech case referred several times to the IMLA amicus brief and to a survey IMLA conducted of its members to support his decision.

As a Respondent, when the Petitioner files with the Supreme Court, counsel first must consider whether to file a response or waive doing so. Advice on this topic varies, with some counseling to file a response and others counseling against filing. Filing a response draws attention to the issue and for that reason alone, many counsel against it. On the other hand, the Court will ask for a response in cases it considers might merit certiorari. Just one Justice can ask for a response, so the request may not indicate that certiorari will be granted, but certiorari will not be granted where there is not a response and the request draws attention to the issue. So, in cases where counsel believes a response will be requested, it is best to be proactive and file and not waive the response. The response needs to recognize that the question for the Court at this stage is whether to grant certiorari, not whether the lower court was wrong in its decision. Going back to Rule 10, counsel for the Respondent should describe why the case does not fit. In Plumhoff v Rickard, the Court asked the Respondent to file a response. That response provided little help to the Court and may be a model of how not to write a Respondent’s brief at the petition stage. In contrast, the City of Chicago’s outside counsel, Ruth Masters, and its appellate team lead by Benna Ruth Solomon filed a model response in Hillman v. City of Chicago and the Court denied certiorari in May 2017.

Unlike a Petitioner seeking certiorari and trying to draw attention to the issue, the Respondent tries to cover itself in anonymity. So, in addition to the reasons for filing or not filing a response already discussed, because the goal of the Respondent is to have the Court deny certiorari, it is an extremely rare case that a Respondent should consider obtaining amicus support at the certiorari stage as doing so only draws attention to the case and increases the chances that the Justices will take a closer look at the case. Additionally, the Respondent may want to look at the Court’s schedule. Timing a response can reap some rewards. For example, timing a response or waiver to get into the “long conference” could make a difference in the quest for anonymity.

During its term, the Court holds private conferences to discuss whether to grant certiorari. The long conference is the first conference of the term and is usually held the Friday before the Court’s first oral arguments in the term. At the long conference, the Court reviews thousands of petitions that have stacked up during the summer recess. At other conferences during the year the numbers are about a hundred or so, which makes anonymity at the long conference statistically more likely. When the Court conferences, the Chief Justice circulates a list of cases for discussion and each Justice may add to that list. If a case scheduled for that conference is not on the discussion list, certiorari will be denied.


If the Court grants certiorari, the first thing counsel should do is contact the Georgetown Supreme Court Institute and ask for a moot court. The Institute provides this service free of charge and to the first party to contact it; although, its new policy is to toss a coin in those cases where each party contacts it within 24 hours, so contacting them quickly cannot be over emphasized. (If you would like to schedule a moot in your case, call or email the Director, Debbie Shrager (202-662-9350 or [email protected]). Merits briefs can be due in very short order. This means that counsel should be prepared by having lined up amici and possibly engaging Supreme Court counsel. Getting Supreme Court counsel for the merits and getting amici at this stage will be much easier than at the petition stage. Attorneys practicing before the Court often want to increase the number of arguments on their resume and may be willing to handle a case pro bono. Amici will often line up unbidden to file either for or against an issue. Coordinating the amicus effort for the client should be an important part of the advocacy. Rather than each amicus writing on the same subpart of an argument, each can take an argument, support it and expand it, avoiding repetition. Counsel for a party cannot write an amicus brief in the case, so while discussion and coordination are important, those discussions and that coordination cannot direct the amicus brief in detail.

In the last several years, the Ninth Circuit generated the most merits cases of any circuit and its reversal rate has been high. In the October 2013 term, the Ninth and Sixth Circuits tied for the most cases, but in the October term of 2011, the Ninth Circuit generated almost one third of the cases decided. It was reversed in roughly 71% of those cases. In the 2014-2016 terms, the Ninth Circuit still generated the most merits cases, though not as many in prior years (21%, 13% and 11% of the merits cases), but the Supreme Court continued to reverse it at a high rate (63%, 80% and 88% of the time). Only state supreme courts combined for generating more merits cases than the Ninth Circuit for the 2015 term and 2016 term. In the 2016 term, the Sixth Circuit and the Federal Circuit were close behind the Ninth Circuit, generating 10% of the merits cases respectively and both were reversed 86% of the time. The Ninth Circuit’s trend continued in the 2018 term, generating both the highest number of cases on the Court’s docket (19%) and reversed at the highest rate of reversal (86%). In fairness, most cases the Court accepts are reversed. The 2018 term saw a 63.5% reversal rate overall, but that is low compared to prior years (74% in the 2017 term and nearly 80% of in the 2016 term). So, the odds are, if you were victorious below and the Court accepts certiorari, you may be in for a reversal. Scotusblog.com (from which these statistics are derived) provides a great resource on the Court and provides statistical reports for much of its activity that can be vital to understanding the Court.

The Scotusblog.com statistics shows who has argued cases before the Court and their experience. Many of the premier practitioners before the Court have experience in the Office of Solicitor General, some having been Solicitor General at one time. As noted, practice before the Court has become more specialized, and in the 2018 term, nearly 70% of the oral advocates were considered “experts” (defined as having argued at least 5 cases before the Court). 2. OCTOER TERM 2019



Department of Homeland Security v. Regents of the University of California / Trump v. NAACP - Immigration

In 2012, then President Obama adopted the Deferred Action for Childhood Arrivals program or DACA to postpone deportation of undocumented immigrants brought to America as children and, if they met certain conditions. DACA also allowed them to obtain work permits, social security numbers, pay taxes, and become part of the mainstream economy. In 2017, the Trump administration rescinded DACA, arguing that it was illegal from its inception, and therefore could no longer continue in effect. The decision to rescind DACA was based on a 2015 Fifth Circuit decision concluding that the Deferred Action for Parents of Americans or DAPA, a similar program to DACA, exceeded DHS’ statutory authority.

Challengers including state and local governments brought suit, arguing that rescinding DACA was arbitrary and capricious under the Administrative Procedure Act. The federal government argued that the decision to rescind DACA is not reviewable and even if it is, it did not violate the APA.

Three lower courts have concluded ending the policy is both reviewable and likely unlawful. The Ninth Circuit concluded that the decision to rescind DACA is not committed to agency discretion and is therefore reviewable by courts. The Ninth Circuit also concluded that the plaintiffs were likely to show that the decision to rescind the policy was arbitrary and capricious under the APA because it was based on a flawed legal premise. The Ninth Circuit emphasized:

To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion. We hold only that here, where the Executive did not make a discretionary choice to end DACA—but rather acted based on an erroneous view of what the law required—the rescission was arbitrary and capricious under settled law. The government is, as always, free to reexamine its policy choices, so long as doing so does not violate an injunction or any freestanding statutory or constitutional protection.

The issues in this case are whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.

IMLA joined an amicus brief filed by over 100 cities and counties and other national local government organizations in support of the challengers. Oral argument is scheduled for November 12, 2019.

New York State Rifle & Pistol Association, Inc. v. City of New York – Second Amendment

A New York City administrative rule allows residents to obtain a “carry” or “premises” handgun license. The “premises” license allows a licensee to “have and possess in his dwelling” a pistol or revolver. A licensee may only take his or her gun to specific shooting ranges located in the city. Challengers want to bring their handgun to their second home and to target practice outside


the city and claim the premises license violates their Second Amendment rights (they also bring challenges under the First Amendment, the Commerce Clause, and the constitutional right to travel). The Second Circuit held the law is constitutional on all accounts.

The issue before the Supreme Court is whether New York City’s ban on transporting a handgun to a home or shooting range outside city limits violates the Second Amendment, the Commerce Clause, or the constitutional right to travel.

Since the Supreme Court accepted certiorari, the City has amended the challenged regulation and now allows premise license holders to transport their firearms to additional locations including to shooting ranges outside of the City and to second homes. In addition, since the Court accepted certiorari, New York state also amended its handgun licensing statute to require localities to allow holders of premise licenses to engage in such transport. Thus, the City now argues that the case is moot based on these changes to the law.

IMLA joined an amicus brief filed by the State and Local Legal Center in support of New York City in this case. Oral argument is scheduled for December 2, 2019.

Altitude Express Inc. v. Zarda / Bostock v. Clayton County, Georgia – Employment Discrimination

The issue in these consolidated cases is whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.

As defined by Title VII, an employer has engaged in "impermissible consideration of ... sex ... in employment practices" when "sex ... was a motivating factor for any employment practice," irrespective of whether the employer was also motivated by "other factors." 42 U.S.C. § 2000e-2(m).

Both Zarda and Bostock were allegedly fired because they are gay. The Second Circuit en banc court held in Zarda that “sex is necessarily a factor in sexual orientation” and sexual orientation discrimination is therefore at least motivated in part by sex. The Eleventh Circuit in Bostock came to the opposite conclusion relying solely on its prior precedent.

The Supreme Court heard oral argument in these cases on October 8, 2019 and a decision is expected before the end of June 2020.

R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission- Employment Discrimination The issues in this case are whether Title VII prohibits discrimination against transgender people based on: (1) their status as transgender; or (2) sex stereotyping under Price Waterhouse v. Hopkins.


https://casetext.com/statute/united-states-code/title-42-the-public-health-and-welfare/chapter-21-civil-rights/subchapter-vi-equal-employment-opportunities/2000e-2-unlawful-employment-practices

https://casetext.com/statute/united-states-code/title-42-the-public-health-and-welfare/chapter-21-civil-rights/subchapter-vi-equal-employment-opportunities/2000e-2-unlawful-employment-practices

In Price Waterhouse, the Supreme Court concluded that an adverse employment action taken based on gender stereotypes constitutes impermissible sex discrimination. 490 U.S. 228 (1989). In Price Waterhouse, the female accountant was denied a promotion because she was “too aggressive,” need to walk, talk, and dress more femininely, wear more makeup and jewelry, and take a lesson in charm school.

Another important case by way of background for these Title VII cases is Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). In Oncale, the Supreme Court held male on male sexual harassment was actionable under Title VII. As relevant for the transgender and sexual orientation cases, the Supreme Court noted:

As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

Id. at 79.

In this case, Aimee Stephens who assigned the male gender at birth told her boss, the owner of a small funeral home, that she planned to transition from male to female. She claims she was terminated from the funeral home by its owner shortly after informing him of her transgender status. The owner of the funeral home indicates he objects to her continuing in the position due to religious reasons.

The Sixth Circuit held that discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex. The court concluded that “[i]t is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex.” The court went on to explain, “[h]ere, Rost's decision to fire Stephens because Stephens was ‘no longer going to represent himself as a man’ and ‘wanted to dress as a woman,’ falls squarely within the ambit of sex-based discrimination that Price Waterhouse and Smith forbid.”

The Supreme Court heard oral argument on this case on October 8, 2019 and a decision is expected before the end of June 2020.

Hawaii Wildlife Fund et al. v. County of Maui – Clean Water Act

The County of Maui operates a wastewater treatment facility that filters and disinfects the sewage it receives then releases the wastewater into four onsite injection wells. The injection wells are long pipes into which the wastewater is pumped. The wastewater then travels approximately 200 feet underground into a shallow groundwater aquifer beneath the facility. It is undisputed that wastewater from these wells eventually makes its way into the Pacific Ocean


and that the County was aware of that fact for some time. Specifically, a 2013 tracer study, conducted on behalf of the EPA, the Army Corps of Engineers and the Hawaii Department of Health, confirmed that treated wastewater from the County’s UIC wells reached the ocean roughly half a mile south of the treatment plant. On average, it took approximately 10 months for groundwater containing County wastewater to enter the ocean along approximately 2 miles of coastline. The Clean Water Act prohibits the “discharge of any pollutant” unless certain provisions of the Clean Water Act are complied with. See 33 U.S.C. § 1311(a). The Clean Water Act defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The Clean Water Act defines "point source" as any “discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.” 33 U.S.C. § 1362(14). The Clean Water Act allows discharges of pollutants when an NPDES permit is obtained and complied with. See 33 U.S.C. § 1342. Citizen groups sued, claiming the County needed a NPDES permit for its injection of treated wastewater into the underground injection control wells. The district court held that the County violated the Clean Water Act based on a novel “conduit” theory of liability – i.e., the treated wastewater reached navigable waters without a NPDES permit. Under the conduit theory the court held that the unconfined groundwater acted as a “conduit,” conveying pollutants from the point source – the permitted UIC wells – to the ocean. The Ninth Circuit upheld the ruling.

The issue before the Supreme Court is whether a violation of the CWA occurs only when a pollutant is released directly into navigable waters, or whether it is enough that the pollutant is released indirectly.

On April 15, 2019 (after the Court granted certiorari), the EPA issued interpretive guidance, concluding that releases of pollutants to groundwater are categorically excluded from the Act’s permitting requirements because Congress explicitly left regulation of discharges to groundwater to the states and to EPA under other statutory authorities.

Oral argument in this case is scheduled for November 6, 2019.

The Maui County Council voted to settle the case with the Respondent. However, corporation counsel for Maui has taken the position that under the County’s charter, only the Mayor has the authority to settle the case. The case is therefore still on the Supreme Court’s docket as the Mayor does not wish to settle the case.

Comcast Corp. v. National Association of African American-Owned Media – Race Discrimination


The question presented in this case is whether a claim of race discrimination under Section 1981 fails in the absence of but-for causation.

Georgia v. Public.Resource.Org Inc. - Copyrights

The issue in this case is whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.

Atlantic Richfield Co. v. Christian - CERCLA

The issues in this care are: (1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency ordered is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act; (2) whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.

Kelly v. U.S. – Public Corruption

The question presented in this case is whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.

Espinoza v. Montana Department of Revenue – First Amendment / Establishment Clause

The question presented in this case is whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.

Kansas v. Glover – Fourth Amendment

The question presented is whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.

June Medical Services LLC v. Gee – Abortion / Stare Decisis

The question presented is whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting


privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.

Sharp v. Murphy – State Sovereignty / Tribal Law

The issue in this case is whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).

This case presents a hugely important question for the entire state of Oklahoma and its local governments as to whether the Creek Nation’s reservation was disestablished. In a significant ruling, the Tenth Circuit held that it was not, thereby effectively stripping a huge swath of Oklahoma (and the majority of Tulsa) of jurisdiction over crimes committed by Native Americans. If not corrected, the decision below could result in the largest abrogation of state sovereignty by a federal court in American history. More concerning, the case has implications for the state and local governments’ taxing, land use regulations, code enforcement, law enforcement, and other authority.

The case was argued in the 2018 term but in an unusual move, the Court ordered the case held over to be reargued in the 2019 term. Justice Gorsuch is recused from the case (he was on the Tenth Circuit when it was decided) and the Justices are likely deadlocked 4-4 but want to try to build a majority.

IMLA filed an amicus brief in this case.

3. OCTOBER TERM 2018

American Humanist Association v. Maryland-National Capital Park and Planning Commission – Establishment Clause

In a 7-2 opinion authored by Justice Alito, the Supreme Court held that the government did not violate the Establishment Clause by acquiring and maintaining a 40-foot tall cross which was erected over 90 years ago as a World War I memorial. In this case, historical context mattered, and the Court explained “retaining established religiously expressive monuments…is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality.”

In 1925, the American Legion and a group of bereaved mothers erected a memorial to honor the 49 residents of Prince George’s County, Maryland, who perished in World War I. To evoke the grave markers on the battlefields in Europe, the memorial bears the shape of a cross. The cross is 40 feet tall and a large plaque affixed to the memorial dedicates it to and lists the names of the 49 county residents who fell in World War I. The sides of the memorial are inscribed with the words “valor,” “endurance,” “courage,” and “devotion.” The memorial is situated in Veterans Memorial Park, which also contains monuments to the War of 1812, World War II, the attack on


Pearl Harbor, the Korean and Vietnam wars, and the events of September 11, 2001. The WWI memorial / cross is by far the largest memorial in the park.

In 1961, the Maryland-National Capital Park and Planning Commission acquired the memorial and the roadway median on which it sits due to traffic safety concerns arising from the placement of the Cross in the middle of a busy intersection. From that date until present, the Commission has expended $117,000 in costs associated with maintenance and repair of the memorial.

In 2014, the American Humanist Association and three individuals filed suit against the Maryland-National Capital Park and Planning Commission. They argued that, because of its cross shape, the memorial constitutes an unconstitutional endorsement of Christianity. The Fourth Circuit agreed, finding that under Lemon v. Kurtzman, the cross violated the Establishment Clause as its primary / principal effect was endorsing Christianity and because it represented excessive entanglement between the government and religion.

The Supreme Court reversed, explaining that “four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones” and that “the passage of time gives rise to a strong presumption of constitutionality.” These four considerations are: 1) where monuments / symbols were established a long time ago, it is especially difficult to identify their original purpose; 2) the purpose associated with an older monument or symbol can have multiple meanings; 3) the meaning behind these monuments may change over time and something that may have had an originally religious meaning can now have a secular or historical one, for example, the names of many cities and towns throughout the United States; and 4) as these monuments gain historical and secular significance, removing them may not appear religiously neutral, particularly to the local community. Indeed, on this score, the Court noted that “a campaign to obliterate items with religious associations may evidence hostility to religion even if those religious associations are no longer in the forefront.” The Court explains that the “role of the cross in World War I memorials is illustrative of each of [these] considerations.”

Although the Court did not explicitly overrule Lemon, it refused to apply the test. Citing to Marsh and Town of Greece, the Court explained “[w]hile the Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, in later cases we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance.” Applying its analysis to the cross at hand, the Court concluded it did not violate the Establishment Clause. The cross carries a “special significance commemorating World War I” and with the passage of time, it has also acquired historical importance, according to the Court. Further, there was no evidence that monument was intended to disrespect other religions by for example, excluding Jewish soldiers. And, according to the majority, it had to matter that the monument was commemorating the death of particular individuals.

The decision involved a number of different opinions and Justice Alito’s majority garnered five votes for most of the opinion (Justice Kagan did not sign on to the portion that was extremely critical of Lemon). Justice Breyer wrote a concurring opinion that Justice Kagan joined,


explaining that for them, “[t]his case would be different…if the Cross had been erected only recently, rather than in the aftermath of World War I.” In the concurrence, Justice Breyer indicates he does not believe the Court is adopting a “history and traditions test that would permit any newly constructed religious memorial on public land.” This is an important qualification because without Justice Breyer and Justice Kagan, the Court lacked a majority (Justices Thomas and Gorsuch concurred in the judgment only). Justice Breyer explains that the Court in this case “look[ed] to history for guidance… but it upholds the constitutionality of the Peace Cross only after considering its particular historical context and its long-held place in the community.” And, according to Justice Breyer, “[a] newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.” In his concurrence, Justice Kavanaugh seems to disagree with Justice Breyer, noting that the Court has adopted a “history and traditions test.”

There were three decisions noting the Justice would have explicitly overruled Lemon (Justices Kavanaugh, Gorsuch, and Thomas), and four other Justices wrote very critically of the doctrine. The petitioners in the case specifically indicated they were not asking the Court to overrule Lemon, which is perhaps why the majority did not take that leap. But it now seems that local governments can look to Town of Greece for guidance on religious monuments and the Establishment Clause, particularly where the monument has added historical context. More newly erected monuments seem to be in the gray zone and will require further litigation to determine how the Court would ultimately handle these monuments.

IMLA filed a petition stage amicus brief urging the Court to accept certiorari based on the confusion in this area of the law and the Supreme Court granted certiorari.

Department of Commerce v. New York – Local Government Standing / Census / Administrative Procedure Act

In an opinion authored by the Chief Justice and alternatingly supported in parts by the liberal Justices and in other places the conservative Justices, the Court ultimately struck the citizenship question from the census, concluding at bottom that it must be remanded to the agency due to the pretextual reasons the Secretary offered for adding the question. Chief Justice Roberts explained that while the Court’s review of an agency’s decision under these circumstances is deferential, it is “not required to exhibit a naiveté from which ordinary citizens are free,” and here, the Court could not “ignore the disconnect between the decision made and the explanation given.”

In order to apportion Members of the House of Representatives among the States, the Constitution requires an “Enumeration” of the population every 10 years, to be made “in such Manner” as Congress “shall by Law direct.” Art. I, §2, cl. 3; Amdt. 14, §2. In the Census Act, Congress delegated to the Secretary of Commerce the task of conducting the decennial census “in such form and content as he may determine.” At issue in this case, is Commerce Secretary Ross’ decision to add a citizenship question to the 2020 decennial census.


This issue was important to state and local governments because the population count derived from the census is used not only to apportion representatives but also to allocate billions of dollars in federal funds to the States and local governments and to draw electoral districts. The Census Bureau and all other experts have opined that adding a citizenship question will result in a significant undercount of the population on the census, by as much as 5%.

Secretary Ross claims that he was adding the citizenship question at the request of the Department of Justice (DOJ), which sought improved data about citizen voting-age population for purposes of enforcing the Voting Rights Act (VRA). Three district courts heard challenges to the addition of the question and all three concluded that the decision to add the citizenship question violated the Administrative Procedure Act (APA). Challengers also claimed the addition of the question violated the Enumeration Clause of the Constitution.

In an opinion that flipped back and forth between conservative and liberal majorities with the Chief Justice in the middle, the Supreme Court ultimately agreed with the district court on at least part of the APA question and remanded the case back to the agency. First, the Court unanimously agreed that the state and local governments had standing to pursue their claims. On the constitutional question, a 5-4 (conservative) majority concluded that the Enumeration Clause “does not provide a basis to set aside the Secretary’s decision.” In other words, it was not unconstitutional for the Secretary to add the citizenship question.

Turning to the statutory arguments, seven of the Justices agreed with the challengers that as a threshold matter, the Secretary’s decision to add the citizenship question was reviewable under the APA (only Justices Alito and Gorsuch disagreed). The Court noted that under the APA, it has read the “exception for action committed to agency discretion quite narrowly, restricting it to those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” (internal quotations omitted). And in this case, “[t]he taking of the census [and adding the citizenship question] is not one of those areas traditionally committed to agency discretion.”

Next, the Chief Justice, writing for himself and the four conservative Justices, concluded that the district court’s decision that the Secretary’s action was not supported by the evidence was erroneous. The Court explained that the Secretary’s choice to include the citizenship question was a reasonable policy choice and “[i]n overriding that reasonable exercise of discretion, the court improperly substituted its judgment for that of the agency.” The Court noted that the Census Bureau had been unable to rule out other potential causes for an undercount in the census and the Secretary weighed “that uncertainty against the value of obtaining more complete and accurate citizenship data” and ultimately determined that it was “worth the risk of a potentially lower response rate” to add the citizenship question. The majority emphasized that the statute authorizes the Secretary, not the Census Bureau (or judges) “to make policy choices within the range of reasonable options,” and the “evidence before the Secretary hardly led ineluctably to just one reasonable course of action.”


Finally, turning to the heart of the case, the Chief Justice now writing for himself and the four liberal Justices, concluded that the Secretary’s decision to add the citizenship question must be set aside because his stated reasons for adding it were pretextual. Here, the Court explained given the voluminous extra-record evidence (and the Court notes it is “rare to review a record as extensive” as the one before it, perhaps seeking to distinguish this case from other APA cases), and reviewing the evidence as a whole, several points “reveal a significant mismatch between the decision the Secretary made and the rationale he provided.” For example, the Court highlights the fact that according to the Commerce Secretary, his agency was “simply acting on a routine data request from another agency [the DOJ].” Yet, the Court explains that the evidence before it shows that the “Commerce Secretary went to great lengths to elicit the request from DOJ…” And the Court notes that although in typical agency cases, an agency may have both “stated and unstated reasons for a decision, here the VRA enforcement rationale – the sole stated reason – seems to have been contrived.” Concluding that “[i]f judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

IMLA filed an amicus brief in this case focused solely on the issue of local government standing.

Rucho v. Common Cause / Lamone v. Benisk – Partisan Gerrymandering

In a 5-4 decision authored by Chief Justice Roberts, the Supreme Court held that partisan gerrymandering claims present non-justiciable political questions because there is “no clear, manageable, and politically neutral standards” to measure such claims.

Rucho v. Common Cause and Lamone v. Benisek involved claims of political gerrymandering in North Carolina and Maryland respectively. In North Carolina, the challengers argued that the North Carolina Republicans had an “official state policy to maximize” their party’s representation in Congress, which meant that Republicans would win 10 out of the state’s 13 congressional seats, which they did in 2016, “even though the statewide vote was nearly tied.” (Why 10 and not 11? Because 11 seats would have been statistically impossible). Challengers argued the political gerrymandered map violated the Fourteenth Amendment’s Equal Protection Clause and the First Amendment. In Maryland, the challengers argued that Democratic election officials violated the Constitution when they redrew Maryland’s 6th congressional district to flip it from Republican to strongly Democratic, by moving some 90,000 voters out of the district in retaliation for the challengers’ support for Republican candidates. The cases represented different legal theories, but both had strong evidence of partisan intent on the part of the legislatures. Three judge panels in both cases held that the claims were justiciable and violated the Constitution.

The Supreme Court reversed in both cases, and concluded that although the district plans “at issue here are highly partisan, by any measure” and that “[e]xcessive partisanship leads to results that reasonably seem unjust,” the issue of partisan gerrymandering is a non-justiciable political question, outside the scope of judicial review. The Court explained that in Baker v. Carr, the Court outlined “various considerations relevant to determining whether a claim is a


nonjusticiable political question, including whether there is a lack of judicially discoverable and manageable standards for resolving it.” After detailing the fact that plaintiffs have tried for 45 years to get the Court to articulate a manageable standard for these cases and the Court’s inability to do so, the Court concludes that these claims are outside “the competence of the federal courts.”

The “central problem,” the Court explains, is “determining when political gerrymandering has gone too far.” To illustrate its point, the Court poses numerous questions that underscore the challenges courts would face in adjudicating political gerrymandering cases and that ultimately courts are “not equipped to apportion political power as a matter of fairness.” The Court notes that really, what the challengers want, but what the Constitution does not require, is proportional representation.

The majority notes that it “does not condone excessive partisan gerrymandering” and not does its “conclusion condemn complaints about districting to echo into a void.” Instead, the Court counsels that other avenues exist to address the problem, such as through state legislative efforts, ballot initiatives, efforts to have independent districting commissions, and Congress.

Justice Kagan, joined by Justices Ginsburg, Sotomayor, and Breyer, dissented and would have found these claims justiciable and chided the majority for its failure to conclude at the very least that under the extraordinary facts of these cases that this was too much partisan gerrymandering. She concludes by stating: “[o]f all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.”

IMLA filed amicus briefs in these cases.

Nieves v. Bartlett - First Amendment

This case centers on events that transpired during the “Artic Man” festival, which occurs in a remote portion of Alaska, home to a small community. But “once a year, upwards of 10,000 people descend on the area for Arctic Man, an event known for both extreme sports and extreme alcohol consumption.” The remote location, alcohol consumption, reckless behavior, snowmobiling, fighting, and extreme temperatures all pose special challenges for the limited number of law enforcement officers who are flown in to patrol the festival each year. In 2014, Troopers Nieves and Weight were working the festival and they encountered Bartlett at a large outdoor party where it appeared minors were drinking alcohol. When they first approached Bartlett, he refused to speak to Trooper Nieves. Meanwhile, Trooper Weight spotted a minor drinking alcohol and began to speak with him. Bartlett, who was intoxicated and weighs 240 lbs., then rushed over to Trooper Weight and the minor and stepped between them. The video footage shows that all 3 individuals were standing very closely together exchanging words (Bartlett’s voice was raised) and that Bartlett’s right hand was roughly at shoulder height and within inches of Trooper Weight.


Trooper Weight, who took Bartlett’s actions as hostile and aggressive, “created space for himself” by pushing Bartlett back. Trooper Nieves saw all this and ran over. The troopers subdued Bartlett and he was arrested for disorderly conduct and resisting arrest. Bartlett alleges that after the arrest, Trooper Nieves said: “bet you wish you would have talked to me now.”

The prosecutor determined there was probable cause for the arrest but dismissed the charges for budgetary reasons. Bartlett brought suit under §1983 claiming, among other things, the arrest violated the First Amendment. The Ninth Circuit held that Bartlett could proceed on his retaliatory arrest claim despite the fact that the troopers had probable cause to arrest. The Ninth Circuit reasoned that because Bartlett alleged that Trooper Nieves said “bet you wish you would have talked to me now,” a reasonable jury could have found that the arrest was in retaliation for his refusal to answer questions earlier in the evening and summary judgment was therefore inappropriate.

At least 6 Justices disagreed with the Ninth Circuit and reversed. In an opinion authored by Chief Justice Roberts (joined by Justices Kavanaugh, Breyer, Alito, and Kagan), the Court concluded that generally speaking, a plaintiff must plead and prove the absence of probable cause to move forward with a retaliatory arrest claim under the First Amendment. The Court explained that retaliatory arrest claims suffer the same challenges as retaliatory prosecution claims, like the ones at issue in Hartman v. Moore, because both can present “a tenuous causal connection between the defendant’s alleged animus and the plaintiff’s injury.” Further, the Court noted that speech can inform an officer’s decision to arrest by “convey[ing] vital information – for example, if he is ready to cooperate or rather presents a continuing threat,” making the causal connection in these cases complex. (internal quotations omitted).

The Court explained that policy considerations and the common law support its conclusion. As to the policy issues, the Court explained because of how easily these types of claims are to allege and how challenging they are to defend, police officers would be hamstrung in their abilities to, for example, handle unruly protests out of fear of an “overwhelming litigation risk.”

If a plaintiff does establish an absence of probable cause, then the Court notes, that Mt. Healthy’s burden shifting frame-work is the proper approach and the plaintiff can only prevail if he or she shows that the “retaliation was a substantial or motivating factor behind the [arrest], and, if that showing is made, the defendant can prevail only by showing that the [arrest] would have been initiated without respect to retaliation.”

The Court concluded by explaining that the rule it announces contains a “narrow qualification” for the situation where an officer has probable cause to arrest but where officers “typically exercise their discretion not to do so.” The Court provides an example of someone who is complaining about the police and then jaywalks. The Court goes on to explain that because so few people are actually arrested for jaywalking, if a plaintiff in this scenario can present objective evidence that other similarly situated individuals not engaged in protected First Amendment activity were not arrested, then the plaintiff can proceed with his or her claim, even


if the officer had probable cause to arrest. In such a case, the plaintiff, after presenting this objective evidence of similarly situated individuals, would still have to go through the Mt. Healthy analysis to prove a claim. The Court stresses that the inquiry is objective in such a case and statements and motivations of the officer are irrelevant at this initial inquiry stage.

As for Mr. Bartlett’s claim, the Court concluded that it cannot survive summary judgment.

IMLA joined a brief filed by the SLLC in this case.

Knick v. Township of Scott, Pennsylvania - Takings

In a 5-4 decision, the Supreme Court overruled Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), which required property owners whose property had been taken by state or local governments to file proceedings in state court for “just compensation” before their federal Takings claim could ripen. In a blow to local governments, Chief Justice Roberts, writing for the majority held that a “property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it.” (emphasis added) In this case, Knick owns approximately 90 acres of property in Scott Township, Pennsylvania. In 2012, the Township enacted an ordinance addressing the operation and maintenance of cemeteries, which applies to public and private cemeteries, and requires that cemeteries be properly maintained and accessible to the public during daylight hours. The ordinance also permits the Township’s Code Enforcement Officers to enter the property for determining the existence/ location of a cemetery and to ensure compliance with the ordinance. Anyone who violates the ordinance is subject to a fine. In 2013, Knick was determined to be in violation of the ordinance on her private property due to a private burial ground on the property.

Knick sued in federal court claiming, among other things, an unlawful taking without just compensation in violation of the Fifth Amendment based on both the facial terms of the ordinance and as it was originally applied to her. Specifically, she argues that the ordinance effectuates an uncompensated taking of her private property by requiring her to hold her land open to the public and to Township inspectors. The Third Circuit agreed with the Township that Knick failed to comply with the Williamson County exhaustion of state-law compensation remedies, because Knick did not pursue inverse-condemnation proceedings under Pennsylvania’s Eminent Domain Code. The court concluded that her Fifth Amendment claims were therefore not ripe until she has sought and been denied just compensation using Pennsylvania’s inverse condemnation procedures. The Supreme Court reversed, concluding “that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence,” and that Williamson County must be overruled. Turning to the text of the Clause, the Court explained that it provides “[N]or shall private property be taken for public use, without just


compensation,” not: “Nor shall private property be taken for public use, without an available procedure that will result in compensation.” The Court noted that any state court proceedings that may later provide just compensation are irrelevant for the purpose of determining if a local government has violated the Fifth Amendment and any property owner whose property has been taken without just compensation provided at the time of the taking can bring suit in federal court to secure a right guaranteed under the Constitution. Analogizing the situation to a bank robber who later “give[s] the loot back,” Court noted that “a later payment of compensation may remedy the constitutional violation that occurred at the time of the taking, but that does not mean the violation never took place.” In terms of stare decisis, the Court emphasized that Williamson County was poorly reasoned, conflicted with much of the Court’s takings jurisprudence, had no real reliance interests, and has proved unworkable, particularly in light of the San Remo “trap” that litigants found themselves in. The Court explained that the Williamson County Court could not have anticipated that San Remo, which held that the full faith and credit clause prevented a plaintiff who was required to exhaust state court remedies under Williamson County from bringing suit in federal court, would essentially bar the federal court house door for Takings cases. Justice Kagan, joined by the other liberal Justices, wrote a scathing and often entertaining dissent, noting that the majority’s decision overrules not just Williamson County but “smashes a hundred-plus years of legal rulings to smithereens.” In her dissent, she outlines that the Court is not just wrong on the law, but that it will also have two “damaging” practical consequences: 1) “It will inevitably turn even well-meaning government officials into lawbreakers”; and 2) “it will subvert important principles of judicial federalism.” First, she explains that because “a government actor usually cannot know in advance whether implementing a regulatory program will effect a taking, much less of whose property… responsible [government] employees will almost inescapably become constitutional malefactors.” In terms of federalism, the dissent notes that the “regulation of land use…is perhaps the quintessential state activity” and the majority’s ruling “channels into federal courts a (potentially massive) set of cases that more properly belongs, at least in the first instance, in state courts…” (internal quotations omitted).


Kisor v. Wilkie - Agency Deference

The issue in this case was whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.

The Supreme Court declined to overrule Auer v. Robbins, which directs courts to defer to agencies’ reasonable interpretations of genuinely ambiguous regulations. Writing for the


majority, Justice Kagan upheld the doctrine, noting its important role in construing agency regulations, but likewise emphasized the limitations on the doctrine.

The facts of the case are largely irrelevant and involve a Marine veteran, who sought disability benefits for his service-related post-traumatic stress disorder (PTSD). Although the Department of Veterans Affairs (VA) agreed that he suffered from service-related PTSD, it refused to award him retroactive benefits. That decision by the VA turned on the meaning of the term “relevant” as used in 38 C.F.R. § 3.156(c)(1), a regulation promulgated by the VA. On appeal, the Federal Circuit found that the veteran and the VA both offered reasonable constructions of the term “relevant” under the regulation and on that basis alone, the court held that the regulation is ambiguous. Therefore, pursuant to Auer, the court deferred to the VA’s interpretation of its own ambiguous regulation. The sole question before the Supreme Court was whether it should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co.

Five Justices agreed that Auer should live on, though the majority provided a “cabined” scope for the doctrine and laid out the situations in which Auer should not apply. In upholding the doctrine, the majority explains that if you receive a memo or email and you do not understand what it means, you would probably want to ask the person who wrote it. So too, the Court believes, that Congress would also want us to ask the agency that “wrote the [ambiguous] regulation” to offer “insight into what that rule was intended to mean.” This deference, the Court explains, ensures “consistency in federal regulatory law, for everyone who needs to know what it requires.”

While Auer survives, the Court explained situations in which deference should not be applied. First, deference should only apply where the regulation at issue is “genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.” And the Court emphasized this point, indicating “we mean it – genuinely ambiguous...” The Court notes that some agency rules are complex and can “make the eyes glaze over,” but just because a court finds a regulation “impenetrable on first read,” does not allow the court to “wave the ambiguity flag.” Courts must carefully consider the “text, structure, history, and purpose of the regulation” before determining that am ambiguity exists.

Next, the Court explains that even some ambiguous regulations should not be afforded deference. For example, an agency’s reading of the regulation must still be “reasonable,” and the Court cautions on this score “let there be no mistake: That is a requirement an agency can fail.” And even where an agency offers a reasonable interpretation of a genuinely ambiguous regulation, the majority explains there are still situations in which Auer deference should not apply: the interpretation must have been actually made by the agency and it “must in some way implicate its substantive expertise.” Thus, the Court explains that a lower “court should decline to defer to a merely convenient litigating position or post hoc rationalizatio[n] advanced to defend past agency action against attack.” (internal quotations omitted).

The Chief Justice provided the fifth vote to uphold Auer deference and only joined portions of the opinion. He joined the portions explaining the limits on Auer, outlined above. However,


Justice Kagan and the three other liberal Justices concluded that the petitioner could not demonstrate that Auer was wrongly decided and the Chief did not join this portion of the opinion. He did, however, join the portion of Justice Kagan’s majority that would uphold Auer on stare decisis grounds. The Chief Justice also wrote separately to explain that he did not read the Court’s decision to touch on issues of Chevron deference, which directs courts to defer to agency interpretations of statutes. Justice Kavanaugh also made this point in his concurrence (in the judgment only).

Justices Gorsuch, Thomas, Kavanaugh, and Alito would have overturned Auer and concurred in the judgment only (remanding the case to the lower court). Justice Gorsuch, writing for those concurring in the judgment only, was critical of the Court for keeping Auer “on life support” for purely stare decisis grounds (and indeed, this may be the first use of the term “zombie” as a verb in a Supreme Court decision).


PDR Network, LLC v. Carlton & Harris Chiropractic Inc – Agency Deference / Hobbs Act The issue before the Supreme Court was whether the Hobbs Act required the district court in this case to accept the Federal Communication Commission's legal interpretation of the Telephone Consumer Protection Act. The cases raised issues of Chevon deference and agency power.

The Court concluded that the answer to the question it granted certiorari on was dependent upon the “resolution of two preliminary issues” and it therefore declined to answer the question presented and instead vacated the case to the Court of Appeals to consider two fact-dependent questions first.


Escondido v. Emmons – Qualified Immunity

The case involves an officer’s use of force during a possible domestic violence incident. Specifically, in May 2013, the police received a 911 call about a possible domestic disturbance at the Emmons’ apartment, including the fact that there could be two children in the residence. Officer Houchin and officer Craig were the first to respond. The Emmonses were known to officer Houchin because he had responded to a separate 911 call a few weeks previously involving domestic violence that resulted in injuries to Mrs. Emmons caused by her husband.

The officers arrived at the apartment and knocked, but nobody answered the door. The officers were able to speak with Mrs. Emmons through a side window and tried to convince her to open the door and they heard a man in the apartment tell her to back away from the window. Other officers, including Sergeant Toth arrived on the scene during this exchange.


Officer Craig was standing alone just outside the door as an unknown man opened the door to leave the apartment. Officer Craig told him not to close the door so that the police could conduct a welfare check, but he nevertheless closed it and tried to push past officer Craig. At this point, officer Craig took him to the ground and handcuffed him. The entire incident was captured on officer Craig’s body camera footage and shows that the man was not in any visible or audible pain. After a few minutes, officers helped him up and he was arrested.

The man, who turned out to be Mrs. Emmons’ father, sued officer Craig and Sergeant Toth under Section 1983 for excessive force. The district court concluded that because only officer Craig used any force at all, summary judgment was appropriate as to Sergeant Toth. The district court granted summary judgment as to officer Craig, concluding that the law did not clearly establish that he could not take down an arrestee in these circumstances, particularly given that the officers were responding to a domestic disturbance and did not know if this individual was armed or dangerous. In a short unpublished opinion, the Ninth Circuit reversed as to both officers on the question of excessive force, remanding for a trial.

The Supreme Court reversed as to Sergeant Toth and vacated and remanded as to officer Craig. With regard to Sergeant Toth, the Court noted the Ninth Circuit’s decision was not only erroneous, but also “quite puzzling in light of the District Court’s conclusion that ‘only Defendant Craig was involved in the excessive force claim’ and that Mr. Emmons ‘fail[ed] to identify contrary evidence.’”

As to officer Craig, the Court again noted that it has “repeatedly told courts not to define clearly established law at a high level of generality,” quoting last term’s per curiam decision, Kisela v. Hughes. Here, the Ninth Circuit failed the Court’s instruction by defining the right in the case as the “right to be free from excessive force” and citing to only one case in the entire opinion, which described the right to be “free from the application of non-trivial force for engaging in mere passive resistance.” The Supreme Court explained that the Ninth Circuit’s failure to explain how the context of passive resistance applied to these facts and officer Craig’s actions is a “problem” under its precedents and because of the Ninth Circuit’s failure to identify a case where an officer was acting under similar circumstances was held to have violated the Fourth Amendment, the Court remanded to the Ninth Circuit so that it could conduct a proper qualified immunity analysis.

Fort Bend County v. Davis – Public Employment / Exhaustion of Administrative Remedies

The issue before the Supreme Court was whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit or a waivable claim-processing rule. In a unanimous opinion authored by Justice Ginsburg, the Supreme Court held that the administrative-exhaustion requirement is a waivable claim-processing rule and in his case, the County had forfeited its right to assert the defense by waiting too long to raise it (in this case the County raised the defense years after litigation began).



McDonough v. Smith – Accrual of Statute of Limitations / Fabrication of Evidence The issue before the Supreme Court was when the statute of limitations for a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run. The Second Circuit held that it begins to run when the defendant becomes aware of the tainted evidence and its improper use. In a 6-3 decision authored by Justice Sotomayor, the Supreme Court reversed, holding that the limitations period for a Section 1983 fabrication of evidence claim did not begin to run until McDonough’s acquittal.


Mitchell v. Wisconsin – Fourth Amendment

The issue before the Supreme Court was whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement. The Supreme Court held that in the case of an unconscious motorist, a warrantless blood draw is almost always permitted under the exigent circumstances doctrine because a breath test is impossible in such cases.


Mount Lemmon Fire District v. Guido - Public Employers / ADEA

The issue in this case was whether under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state or whether the ADEA applies instead to all state political subdivisions of any size.

In this case, two firefighters sued the Mount Lemmon Fire District for age discrimination when their employment was terminated due to budgetary constraints. They were the oldest of the district’s 13 employees.

This case turned on the definition of employer under the ADEA and whether a small local government met the definition. Under the ADEA, 29 U.S.C. § 630(b): “The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State…”

The Ninth Circuit held that the 20-employee minimum does not apply to a political subdivision of the state, based on the use of the word “also,” in the definition.


In a unanimous 8-0 opinion authored by Justice Ginsburg, the Supreme Court held that the ADEA’s definition of employer “leave[s] scant room for doubt that state and local governments are ‘employers’ covered by the ADEA regardless of their size.” The Court explained that “[f]irst and foremost, the ordinary meaning of ‘also means’ is additive rather than clarifying.” The Court went on to discuss the statutory history of the ADEA and Title VII, how when the statutes were enacted, neither of them applied to States or local governments. Later, both were amended to expressly include governmental entities, but the amendments were done in different ways. Title VII’s definition of “person” was amended to include governmental entities and an employer in Title VII includes a person in an industry affecting commerce who has at least 15 employees, whereas 2 years later when the ADEA was amended, state and local governments were added directly to the definition of employer as opposed to the definition of person. Further, the Court explained that at the time the ADEA was amended, Congress also amended the FLSA and that statute also reaches all employers regardless of size. Although the Court’s reading gives the ADEA a “broader reach than Title VII,” the Court explained the disparity was based on the language chosen by Congress.


Weyerhaeuser Company v. U.S. Fish and Wildlife Service – Endangered Species Act / Agency Review

The issues in this case were: (1) Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.

The Supreme Court held that an area is eligible for designation as “critical habitat” under the Endangered Species Act only if it is “habitat” for the listed species; and the Court concluded that the decision by the secretary of the U.S. Department of the Interior not to exclude an area from critical habitat is subject to judicial review.

IMLA joined an amicus brief filed by the SLLC in this case that focused solely on the second issue.

Timbs v. Indiana – Fines, Fees and the Eight Amendment

The question presented was whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.

The Indiana Supreme Court held that, although the U.S. Supreme Court has held that other rights granted in the Eighth Amendment have been incorporated, it has not yet specifically addressed — and therefore not yet found incorporated — the Excessive Fines Clause. In a unanimous opinion authored by Justice Ginsburg, the Supreme Court reversed, holding that the Eighth


Amendment’s excessive fines clause is incorporated into the Fourteenth Amendment’s Due Process Clause and therefore applicable to the states and to local governments.


Garza v. Idaho – Effective Assistance of Counsel

In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court held that trial counsel who refuses a criminal defendant’s request to file a notice of appeal has performed deficiently and that prejudice will be presumed. The Court will address whether the same rule applies where the defendant had pleaded guilty under a plea agreement that waived his right to appeal. The Idaho Supreme Court held it does not, but the federal courts of appeal are divided on the question. The Supreme Court held that the presumption of prejudice for Sixth Amendment purposes recognized in Roe v. Flores-Ortega applies regardless of whether a defendant has signed an appeal waiver.

Virginia Uranium v. Warren - Preemption

The issue in this case is whether the Atomic Energy Act preempts a state law that on its face regulates an activity within its jurisdiction (here, uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory Commission (here, the milling of uranium and the management of the resulting tailings). The Supreme Court upheld the judgment of the Fourth Circuit that the Atomic Energy Act does not preempt Virginia’s prohibition on uranium mining in the commonwealth is affirmed.

Gamble v. U.S. – Dual Sovereignty

The issue in this case is whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause. In a 7-2 opinion, the Supreme Court upheld the dual-sovereignty doctrine.


Franchise Tax Board of California v. Hyatt - State Sovereignty

The issue in this case is whether Nevada v. Hall, which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled. In a 5-4 decision authored by Justice Thomas, the Supreme Court overruled Nevada v. Hall and concluded that States retain their sovereign immunity from private suits brought in courts of other States and cannot be haled into another State’s courts without their consent. In his dissent, Justice Breyer criticizes the majority’s failure to apply stare decisis and concludes his decision with: “ [t]oday’s decision can only cause one to wonder which cases the Court will overrule next.”


Tennessee Wine & Spirits Retailers Association v. Byrd – Twenty First Amendment / State Sovereignty

The issue in this case is whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entities that have resided in-state for a specified time. In a 7-2 opinion, the Supreme Court concluded that Tennessee’s 2-year durational-residency requirement applicable to retail liquor store license applicants violates the commerce clause and is not saved by the 21st Amendment


4. Other Cases of Interest

A. IRS audits of city attorney status as employee vs. independent contractor

IMLA is asked to participate in responding to audits that conclude that a city attorney who is a private attorney nevertheless is an employee of the city and not an independent contractor. Over the past several years we have provided memoranda in administrative proceedings to support the city attorney. These are difficult cases. The operative IRC sections are §3121, which describes who is an employee for social security and Medicare withholding tax and §3401, which describes who is an employee for purposes of withholding income tax. Insofar as private counsel who are designated the “city attorney,” the Service will apply the common law rules to determine if the attorney is an employee or an independent contractor under §3121, but the Service relies on the statute to conclude that a person holding a statutory or constitutional position of city attorney is an “employee” for withholding taxes under §3401. The Service’s latest publication (March 14, 2014) reinforces its views. Classification of Elected and Appointed Officialswww.irs.gov/.../Federal,-State-&-Local-Governments/Classification-of-Elected-and-Appointed-Officials - March 14, 2014.

B. Securities and Exchange Commission Enforcement Actions

Over the past few years the SEC stepped up enforcement action in the municipal markets. Without giving an exhaustive list of issues and cases, suffice to say that local government leaders charged with responsibilities associated with financing through municipal bonds should spend time with their bond counsel to learn specific responsibilities and their potential liabilities for failing to fulfill those duties. To give one example, in a recent enforcement action involving a municipal financing authority in Beaumont, California, the authority and its then-executive director, also the city manager, agreed to settle charges that they made false statements about prior compliance with continuing disclosure obligations in five bond offerings. The underwriting firm behind those offerings and its co-founder also settled charges for failing to conduct reasonable due diligence on the continuing disclosure representations.


As described by the SEC, in the Beaumont case, the Beaumont Financing Authority had issued approximately $260 million in municipal bonds in 24 separate offerings from 2003 to 2013 for the development of public infrastructure. For each of those offerings, a community facilities district established by Beaumont agreed to provide investors with annual continuing disclosures, including important financial information and operating data. From at least 2004 to April 2013, the district regularly failed to provide investors with the promised information. The Beaumont Financing Authority failed to disclose this poor record of compliance when it conducted the 2012 and 2013 offerings totaling more than $32 million. As a result, the bonds appeared more attractive and investors were misled about the likelihood that the district would comply with its continuing disclosure obligations in the future.

“Investors in municipal bonds depend on timely and complete continuing disclosure from municipal issuers,” said LeeAnn Ghazil Gaunt, Chief of the SEC Enforcement Division’s Public Finance Abuse Unit. “Issuers and underwriters will continue to be held accountable when they fail to provide investors with an accurate picture of past compliance with continuing disclosure obligations.”

In a case involving Miami and its Budget Director, IMLA participated as an amicus to argue that Qualified Immunity should apply in SEC civil enforcement actions. So far, this argument has not prevailed as we lost in the 11th Circuit and in a relatively recent case, a federal District Court in California denied Qualified Immunity to officials in an enforcement action against Victorville, California.

In May 2017, a former town supervisor in Ramapo New York was found guilty of 20 counts of conspiracy, securities fraud, and wire fraud in connection with municipal bonds issued by the Town of Ramapo (the “Town”) and the Ramapo Local Development Corporation (“RLDC”). The verdict, which came after a four-week trial in federal court in White Plains, marked the first conviction for securities fraud in connection with municipal bonds. Aaron Troodler, the RLDC Executive Director and Ramapo Town Attorney had earlier pled guilty to securities fraud.

While IMLA will wade into cases to try to help local governments and local officials as we did in Miami, local leaders need to understand their responsibilities regarding disclosure and continuing disclosure. More importantly, the Nuremburg defense and the “reliance on professionals” defense do not generally work with the SEC. IMLA is pleased to offer a book by Robert Doty that addresses many of these issues: “Expanding Municipal Securities Enforcement: Profound Changes for Issuers & Officials” available through our website at www.imla.org.

C. Pending Supreme Court Petition Stage Cases in which IMLA Participated as an Amicus

Martin v. City of Boise - Eighth Amendment / Homelessness According to available data, there were 867 homeless individuals in Ada County, which is where the City of Boise is located, though this is likely an undercount. There are currently 3 homeless


http://www.imla.org/

shelters operating in Boise, which are the only shelters in Ada County and between the 3 shelters, there are 354 beds and 92 overflow mats. One shelter imposes no religious requirements on its residents and has 96 beds available. Two other shelters are operated by Christian faith nonprofits and they contain religious imagery and information and one of them also runs a “Discipleship Program,” an “intensive, Christ-based residential recovery program” where “religious study is the very essence.” Boise adopted a Camping Ordinance, which makes it a misdemeanor to use "any of the streets, sidewalks, parks, or public places as a camping place at any time." Boise City Code § 9-10-02. The Camping Ordinance defines "camping" as "the use of public property as a temporary or permanent place of dwelling, lodging, or residence." Id. Boise also has a Disorderly Conduct Ordinance, which bans "[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission of the owner or person entitled to possession or in control thereof."

The plaintiffs, who are a number of homeless individuals, were each cited by Boise police for violated one or both of these ordinances and with one exception, sentenced to time served. One plaintiff testified that he reached the limits for how long he could stay in the shelters and refused to enter the Discipleship Program because of his religious beliefs. Because he had no other options on where to sleep, he slept outside for several weeks. After the litigation started, the Boise Police Department issued a special order that prohibited the enforcement of either ordinance at issue against a homeless person on public property on any night when no shelter had any available overnight space. The plaintiffs contend that the City’s prosecution of them for sleeping outside on public property violated the Eighth Amendment’s prohibition of cruel and unusual punishment and the Ninth Circuit agreed. Specifically, the court held that the ordinance violated the Eighth Amendment “insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.” The court indicated that the Eighth Amendment places substantive limits on what the government may criminalize and where the “conduct at issue here is involuntary and inseparable from status…given that human beings are biologically compelled to rest, whether by sitting, lying, or sleeping,” the government cannot “criminalize conduct that is unavoidable consequence of being homeless…” The court explained that its holding was limited to the circumstances where there were no beds available in shelters.

Hamer v. Trinidad –Title II of the ADA / Statute of Limitations

Hamer is in a motorized wheelchair and for the purpose of this lawsuit, is a “qualified individual” with a disability under Title II of the ADA. He does not own a car and primarily uses the public sidewalks in Trinidad to get around. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected


to discrimination by any such entity." 42 U.S.C. § 12132. Notably, it does not contain a statute of limitations provision.

Hamer contends that many of the City’s sidewalks and curb cuts that allow access onto those sidewalks to not comply with Title II of the ADA. He informed the City Council on April 2014 that he had personally counted seventy-nine non-compliant sidewalks / curb cuts throughout the city. He also filed a complaint with the DOJ and the DOJ subsequently audited the city around this time. In response to the complaints and DOJ audit, the city began repairing non-compliant sidewalks.

Despite the city’s efforts to get into compliance, the plaintiff brought suit in October 2016 for violations of Title II of the ADA seeking declaratory and injunctive relief, as well as monetary damages and attorney’s fees.

The district court granted summary judgment to the city on the grounds that the plaintiff’s claim was not timely as it was brought more than two years after he must have discovered the non-compliant sidewalks (given his complaint to the city council in April 2014).

The Tenth Circuit reversed, concluding that under the “repeated violations” doctrine, the plaintiff could recover for any injury that occurred within the last two years. The Tenth Circuit reasoned that each time the plaintiff “was denied access to [the sidewalks and curb cuts], the City of Trinidad committed discrimination within the meaning of the ADA…and a claim for damages arose under the statute.” Thus, under the Tenth Circuit’s rule, the plaintiff can recover for any injuries that occurred within the prior two years before bringing suit, but not for any injuries that occurred before that time. The court rejected the notion that a public entity violates Title II “only when it initially constructs or creates a non-compliant service, program, or activity” and instead, concluded that a public entity violates the statute “repeatedly until it affirmatively acts to remedy the non-compliant service, program, or activity.”

In re: Fulton (Appeal of City of Chicago) – Bankruptcy / Possessory Liens

The case involves 4 bankruptcy cases that were consolidated on appeal to the Seventh Circuit. In each, the City of Chicago impounded the debtor’s respective vehicles based on significant accumulated unpaid fines and penalties for parking tickets, moving violations, and driving with suspended licenses. The City has an ordinance which provides that the City may impound vehicles of individuals with three or more unpaid violations for the “purpose of enforcing” its traffic regulations until the owner of the vehicle pays the outstanding fines and penalties. The Chicago Municipal Code further provides that “[a]ny vehicle impounded by the City or its designee shall be subject to a possessory lien in favor of the City in the amount required to obtain release of the vehicle.”

In each of the 4 cases at issue here, after the City had impounded the owner’s vehicles, each owner filed for bankruptcy. The Bankruptcy Code’s automatic stay provision provides that a petition for bankruptcy operates as a stay of “any act to obtain possession of property of the


estate or of property from the estate or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3). The City did not release the debtor’s vehicles back to the trustee of the bankruptcy estate and each bankruptcy court held that the City violated the stay by “exercising control” over property of the bankruptcy estate and ordered the City to turn over the vehicles immediately.

The City of Chicago argued that holding a vehicle that was impounded before the debtors filed their bankruptcy petitions did not violate the Bankruptcy Code’s automatic stay provision. Further, the City argues that the Bankruptcy Code provides a mechanism for a debtor to seek the turnover of property being held by a creditor through a possessory lien through an adversary proceeding and the court should therefore find an exception for the City’s retention of the vehicles from the automatic stay under 11 U.S.C. § 362(b)(3). The City also argued that subsection (b)(4) which provides that the stay authorized by the Act does not extend to:

. . . the commencement or continuation of an action or proceeding by a governmental unit . . ., to enforce such governmental unit’s or organization’s police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit’s or organization’s police or regulatory power;

This police power exception often arises in bankruptcy proceedings where a debtor seeks to avoid local regulations affecting its business.

The Seventh Circuit rejected these arguments and held in favor of the debtors. By way of background, the Seventh Circuit had previously addressed this issue in Thomson v. General Motors Acceptance Corp., which had held in a case where a creditor had repossessed a vehicle prior to the filing of the bankruptcy petition that a “creditor must comply with the automatic stay and return a debtor’s vehicle upon her filing of a bankruptcy petition.” The City requested the Seventh Circuit overrule Thomson, which the court in this case declined to do. The Seventh Circuit explained that the “[t]he primary goal of reorganization bankruptcy is to group all of the debtor’s property together in his estate such that he may rehabilitate his credit and pay off his debts; this necessarily extends to all property, even property lawfully seized pre‐petition.”

The issues in the case are:

1. Whether passively holding a vehicle after a chapter 13 case is filed violates the Bankruptcy Code’s automatic stay provision.

2. Whether the exception to the automatic stay in sections 362(b)(3) and (b)(4) of the Bankruptcy Code for acts to maintain or continue the perfection of an interest in property allows the City to retain an impounded vehicle after a chapter 13 case is filed.

City of Cleveland v. Jackson –Wrongful Conviction / Section 1983 / Qualified Immunity /Monell


In 1975, Jackson, Ajamu, and Bridgeman (the “plaintiffs”) were convicted of murder. Their convictions were based largely on the purportedly eyewitness testimony of Edward Vernon, who then was twelve years old. In 2014, nearly forty years later, Vernon recanted, disclosing that police officers had coerced him into testifying falsely by threatening to send his parents to jail if he did not testify against the plaintiffs. Vernon’s recantation led to the overturning of the plaintiffs’ convictions as there was no other evidence linking them to the crime. The police officers allegedly failed to turn over exculpatory evidence to the plaintiffs at the time, including that Vernon did not identify them in the police line-up as suspects and that his statement was coerced. The plaintiffs brought a wrongful conviction suit under Section 1983 as well as state law claims against the three police officers involved. They also brought a Monell suit against the City based on a failure to train allegation as well as an official municipal policy allegation. At the time of the suit, two of the three police officers involved were deceased. The third had dementia and died during the pendency of this case. The plaintiffs sought leave to amend the complaint to substitute the administrators’ of the police officers’ estates as defendants. The district court denied that motion, reasoning that under Ohio law, a Section 1983 claim does not survive the death of the tortfeasor. There is no federal law addressing whether Section 1983 actions survive the death of the tortfeasor, so under Section 1988, courts must turn to an analogous state law on the question of survivorship. The plaintiffs argued the analogous state law was the personal injury law, which does survive the death of the tortfeasor under Ohio law, whereas the defendants argued that the most analogous state law is malicious prosecution, which does not, under Ohio law, survive the death of the tortfeasor. The Sixth Circuit split from a number of other circuits on the question of survivorship and concluded that under Section 1983, the survivorship question is governed by the state’s personal injury action, regardless of the type of injury. The court reasoned that all § 1983 claims must be treated the same way for survival-of-claims purposes, just as they are for statute-of-limitations purposes. The Sixth Circuit also found that the police officers were not entitled to qualified immunity for their alleged Brady violations because at the time in 1975, according to the court, it was clearly established that claims could be based on police officer conduct as distinct from prosecutor’s obligations. The Sixth Circuit came to this conclusion based on a handful of circuit courts from that time period having held that police officers had a duty to disclose, but notably, neither the Sixth Circuit nor the Supreme Court had addressed the issue at that time. Additionally, other circuits have afforded officers in this scenario qualified immunity based on the fact that the law was not clearly established in this time-period (i.e., the mid-1970s) that a police officer could be liable under Brady, rather than a prosecutor, thus there is a clear circuit split on that issue.


Finally, as relevant here, the Sixth Circuit concluded that the City could potentially be liable under Monell for having an alleged policy informing officers that they did not have to disclose exculpatory evidence to prosecutors and for a failure to train theory of liability. Importantly for our purposes, on the failure to train claim, the court concluded that the City was deliberately indifferent despite the fact that there were no incidents of alleged Brady violations prior to this case. Thus, the failure to train claim was based on a single alleged Brady violation. While the City is petitioning for certiorari on a number of issues, IMLA’s amicus brief focuses on the issue of the split in authority over how to incorporate through Section 1988, state laws governing survival and abatement.

D. Pending State Appellate Cases and United States Courts of Appeals Cases in which IMLA Participated as an Amicus

City of Athens et. al. v. McClain – Ohio Supreme Court - Preemption / Home Rule The State of Ohio passed H.B. 49, which allows businesses to opt for the State to collect and administer municipal net profit taxes. Prior to the passage of H.B. 49, each municipality would control that collection and administration process. Under the new law, municipalities have 90 days to report to the state tax commissioner specific information about the tax payer and if it fails to do so, the tax commissioner may penalize the municipality by withholding 50% of the net-profit-tax revenue due to the municipality. Further, the state retains .5% of all net profit taxes paid as a fee for the collection and administration of services. The law also authorizes the State to decide on taxpayer requests for refunds of municipal taxes and does not allow municipalities to participate in that process. Ohio has a Constitutional Home Rule Provision, which provides: "[m]unicipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." The trial and appellate courts in Ohio found that the challenged provisions of Ohio state law were constitutional under the Home Rule Amendment. Regarding the municipal power to tax, the appellate court concluded that Article XIII, Section 13 of the Ohio Constitution, which states that “laws may be passed to limit the power of municipalities to levy taxes * * * for local purposes,” allowed the State to enact the legislation. Specifically, in interpreting the term “levy,” the court concluded that the General Assembly was permitted to enact legislation limiting municipalities' power to impose, collect, and administer taxes without violating the Home Rule Amendment. The municipalities recognize that the Ohio Constitution requires balance with respect to municipal taxation power given the limiting provision. However, they argue that finding a balance necessarily requires a more nuanced examination of how that power is exercised. And in


this case, the specific limiting power has been applied to displace municipalities’ general power of taxation provided by the Home Rule Amendment, which they argue is unconstitutional. The issue in this case is whether the Home Rule Amendment of the Ohio Constitution grants municipal corporations a general power of municipal taxation, and if so, where a State law engulfs municipal corporations' general power of taxation, whether that State law is unconstitutional.

Syracuse v. Grant - Second Circuit / Monell / Qualified Immunity Police were called to the Grant home on a domestic disturbance call. When they responded, they found the husband in an agitated state and asked him to go outside. They sought to detain him for safety purposes and a fight broke out between the husband, who is much larger, and one of the officers. The police officer struck him a number of times with his hand. A second officer came over during the struggle and hit the husband with a knee strike and head lock. They were then able to subdue him and got him medical attention for a broken nose and concussion. The husband and wife both sued the police officers and the city, claiming that when the officers arrived the situation was entirely under control and that they told the officers they no longer needed their services, but the officers nevertheless entered their home without permission and proceeded to arrest the husband without probable cause given that the domestic situation was, according to the plaintiffs, entirely under control by the time they arrived. They claim the use of force was entirely unprovoked whereas the officers claim Mr. Grant initiated the physical altercation. The plaintiffs brought claims under Section 1983 for false imprisonment and excessive force as well as claims against the City under Monell. On the Monell claim, the plaintiffs allege that the City’s deliberate indifference to civil complaints of police brutality has resulted in the customary use of excessive force by its police officers, and, as a proximate result of such policy, they suffered injuries. The plaintiffs introduced evidence at trial from a Citizen Review Board (CRB), which contained information about hundreds of complaints against officers over a multi-year period and the recommendations by the CRB as to discipline, as well as the police department’s actual action taken against each officer. The plaintiffs argued that the CRB report demonstrated a pattern of excessive force that went undisciplined which created a climate whereby officers felt empowered to act with impunity. The district court denied summary judgment to the officers on the excessive force and false imprisonment charges, finding enough disputed facts to send the case to a jury. The district court also denied summary judgment on the Monell claim and refused a motion to bifurcate the Monell claim from the individual officers’ claims, even though the Monell claim relied on evidence from the CRB, which the City argued would prejudice the jury against the officers. A jury returned a verdict for the plaintiffs for nearly 2 million dollars not including attorney’s fees.


The issue IMLA focused on in its amicus brief is whether the district court’s failure to bifurcate the trial and the introduction of the CRB report constituted an abuse of discretion.

Taylor v. City of Saginaw –Petition for En Banc Review Sixth Circuit - Fourth Amendment / Parking Enforcement The City of Saginaw uses a common parking enforcement practice known as “chalking” to mark the tires of parked vehicles to track how long they have been parked and ultimately issue a civil citation if the vehicle is parked longer than the time allotted. Alison Taylor, who accumulated 15 parking tickets in a 3-year period, sued the City, claiming that the act of chalking her tires violated Fourth Amendment. The City argued that the chalking was not a search within the Fourth Amendment or in the alternative, that if it was, it was reasonable under the community caretaking exception to the warrant requirement. The Sixth Circuit rejected the City’s arguments, first concluding that under Untied States v. Jones, the act of chalking the tires was a common-law trespass of a constitutionally protected area for the purpose of gathering information and was therefore a search under the Fourth Amendment. The Sixth Circuit then rejected the community-caretaking argument, concluding that the search does not relate to public safety and that “[b]ecause the purpose of chalking is to raise revenue, and not to mitigate public hazard, the City was not acting in its ‘role as [a] community caretak[r.]” In a footnote, the court also rejected the City’s arguments that chalking is so widespread and long-standing, that society may have granted it an implied license. Finally, the Sixth Circuit noted that the City had not pressed its argument that the search fell within the administrative search exception on appeal and the court therefore did not address this argument.

O’Brien v. Village of Lincolnshire & Illinois Municipal League – Seventh Circuit- Government Speech / Janus The Village of Lincolnshire (the “Village’) is a member of the Illinois Municipal League (IML), which is a statutorily authorized nonprofit / nonpolitical association of Illinois cities, villages, and towns. The Village pays annual dues to IML as a part of its membership. Plaintiffs are taxpayers who live in the Village as well as local unions who have at least one employee who live in the Village. They claim that IML has engaged in lobbying by suggesting Illinois units of government should support the Governor’s “Turnaround Agenda” by “adopting local ordinances that would legalize local ‘right-to-work’ zones. The Village adopted a right-to-work zone. The taxpayer plaintiffs object to the use of their taxes to pay for IML’s membership dues, which they claim due to IML’s political activity, runs “directly against their economic and political beliefs.” The plaintiffs analogize their arguments to Janus v. AFSCME (2018). In Janus, the Supreme Court held that “agency fees”, which required non-union members to pay their “fair share” of union dues violated nonmembers’ free speech rights under the compelled subsidy


doctrine by compelling them to subsidize private speech with which they disagreed. Here, the plaintiffs argue that similarly, the Village is requiring them to subsidize the private speech of IML, with which they disagree. The district court held that the Village and IML engage in government speech and therefore the compelled-subsidy doctrine does not apply, and the plaintiffs First Amendment claims fail as a matter of law. The court noted that the Supreme Court has held that a citizen has “no First Amendment right not to fund government speech.” The court rejected the plaintiffs’ argument that IML was a private entity engaging in private speech because the association’s speech was “effectively controlled by the government.” On this point, the court explained that IML is a “formal vehicle through which elected officials act together on behalf of their government entities” and its committees are “comprised exclusively of municipal members.”

Aptive Environmental v. Town of Castle Rock – Tenth Circuit - First Amendment

The town of Castle Rock adopted an ordinance imposing a 7:00 pm curfew on commercial solicitation in response to anecdotal concerns among residents about door-to-door solicitation and its effects on privacy and safety. The ordinance did not impact canvassers. Castle Rock is a suburban community of around 58,000 residents predominated by single-family residential neighborhoods and their council concluded that door-to-door solicitation infringed upon residents’ privacy, especially families who might be sitting down to eat dinner, putting children to bed, or relaxing after a long day.

Chapter 5.04 (the Code) specifically prohibited uninvited door-to-door solicitation between 7:00 pm and 9:00 am, but otherwise allowed solicitors to engage in sales on the properties of residents who have not requested to be placed on the town’s “no knock” list or placed a “no solicitors” sign on their property. Violations were punishable by a $1,000 fine but subject to an affirmative defense if the resident or occupant expressly invited the registered solicitor to enter their property.

Aptive Environmental, LLC (Aptive) is a pest control service whose primary means of generating sales is by through door-to-door solicitation. Aptive challenged the constitutionality of the 7:00 pm curfew as a violation of commercial speech because it limited contact with residents during peak sales hours, which generally occur after 7:00 pm when residents are home from work.

The district court enjoined the entire curfew provision, finding there to be no legitimate government interest materially advanced by the curfew under the second prong of the Central Hudson three-prong commercial speech test. 447 U.S. 557 (1980). In the court’s view, since the ordinance only impacted commercial solicitors and did not affect canvassers, establishing a curfew was an ineffective means of achieving the town’s goal of promoting privacy and public safety. The court also expressed some doubt as to whether there was even an issue with privacy and public safety to begin with, given the town’s lack of wide-based studies, analytical data, and empirical evidence of police complaints and crime reduction. The court viewed the town’s lack


of empirical evidence and heavy reliance on anecdotal evidence as an indication that the town was not justified in enacting the ordinance. Further, the court also noted that the ordinance’s effect of providing comfort and peace of mind to residents, as articulated by the testimony of the town’s police chief, was not enough to demonstrate that it was effective against “real harm” in order to outweigh Aptive’s commercial speech interests.

IMLA’s amicus brief focuses on the district court’s misinterpretation of the evidentiary burden articulated in Lorillard Tobacco Co., which will have a serious impact on communities across the country who wish to place reasonable limitations on door-to-door solicitation.

Lech v. Jackson – Tenth Circuit - Section 1983 / Takings Claim

In this case, police were dispatched to a local Walmart to assist with a shoplifting investigation. What one would assume would be a benign situation, turned out to be extremely dangerous. While the officer was escorting the suspect to the store’s loss prevention office, the suspect fled the scene in a vehicle at a high speed. The officers found the vehicle abandoned, and a witness informed the officer that she saw the suspect with a semi-automatic pistol.

While the officers were pursuing the suspect a burglar alarm went off at the plaintiffs’ residence. All occupants of the home were able to flee unharmed (including a 9-year-old boy) and officers positioned their vehicles in the driveway to block an attempt by the suspect to drive out of the garage. As one officer was getting out of his car, a bullet was fired from inside the garage and struck the police car’s hood. This was considered a “high-risk, barricade suspect situation,” given that there was an armed suspect who was refusing to surrender.

Officers tried numerous tactics to communicate with the suspect and to get him to leave the house. They spoke to him on his cell phone and via loud speaker, they had his family speak to him, they shut off the power and water, they tried shooting in gas munitions to get him to leave, they tried to send a robot into the house, but the suspect would not surrender. Many hours later, a tactical team was sent in to apprehend the suspect. When they attempted to reach the second floor of the house, the suspect fired at them several times and they were ordered to leave the home.

After another 7 hours of being unsuccessful in communicating with the suspect and getting him to leave the home, the commanding officer authorized the use of a BearCat to open up holes in the back of the home. The purpose of this was to allow the officers to see into the home and locate the suspect, to make the suspect feel more exposed, and to create gun ports for snipers to shoot into the home if needed. After the holes were created, the commanding officer sent another tactical team into to apprehend the suspect and this time they were successful, and nobody was injured.

As a result of the standoff, the plaintiffs’ home was rendered uninhabitable. The plaintiffs brought suit under Section 1983, claiming the police officers violated the Fifth Amendment by Taking their property without just compensation. The district court found in favor of the officers,


concluding that courts have historically distinguished between eminent domain and police power and in this case, the police were clearly exercising their police power pursuant to an emergency situation for the protection of the public health, safety, and welfare.

The issue before the Tenth Circuit is whether the U.S. District Court properly granted summary judgment in favor of the Defendants on the grounds that because the Defendants destroyed the Plaintiffs’ property pursuant to their police powers, no just compensation is due under the Takings Clauses of the U.S. Constitution and Colorado Constitution.

Rodriguez v. City of San Jose – Ninth Circuit - Second Amendment

In 2013, Edward Rodriguez suffered a mental episode at his home. His wife, Plaintiff Lori Rodriguez, called the police, and the San Jose Police responded. An officer detained Edward under California Welfare and Institutions Code (“W&I”) §5150, which provides that when probable cause exists that someone is a danger to him/herself or others as a result of a mental disorder, a police officer may take that person into custody for 72 hours for treatment / evaluation.

California W&I § 8102 provides: “Whenever a person, who has been detained or apprehended for examination of his or her mental condition or who is a person described in Section 8100 or 8103, is found to own, have in his or her possession or under his or her control, any firearm whatsoever, or any other deadly weapon, the firearm or other deadly weapon shall be confiscated by any law enforcement agency or peace officer, who shall retain custody of the firearm or other deadly weapon.” (emphasis added).

A San Jose police officer told Lori that he was required to confiscate guns in the house. He asked Lori to provide the combination to the gun safe in the house, and she complied. The officer confiscated eleven guns registered to Edward and one gun registered to Lori. Edward was admitted for a 72-hour hold and as a result is prohibited from owning or possessing firearms under Cal. W&I Code section 8103 for 5 years. Lori requested a return of the firearms to her so that she could store them in the home she shares with Edward. The City petitioned the state court for a hearing under W&I Code §8102 to determine whether the guns should be returned to Edward. While that case was pending, Lori transmuted the guns into her separate property and registered them in her name. Lori then intervened in the City’s suit regarding the return of the guns and the parties agreed she had standing. Even though it was Lori petitioning the court for the return of the guns, the state court decided that the guns could not be returned because doing so would likely result in endangering Edward or others as Lori and Edward were married and lived together. (Edward had a history of domestic violence, mental illness, weighed 400 lbs. and had exhibited violent tendencies in front of the police and paramedics). The state court also rejected her Second Amendment claims, noting nothing in its order precludes her from keeping firearms in her home for protection (she just wasn’t entitled to these particular guns).


Thereafter, Lori filed suit in federal district court, claiming violations of the Second, Fourth, Fifth, and Fourteenth Amendments, and California Penal Code §33800 et seq. On the parties cross-motions for summary judgment, district court granted the City Defendants’ motion and denied Plaintiffs’ motion.

The issues on appeal are:

1. Whether the Second Amendment protects Lori Rodriguez’s right to possess specific firearms.

2. Whether the City Defendants’ confiscation of guns and decision not to return them to Lori is an unreasonable seizure under the Fourth Amendment.

3. Whether the City Defendants’ confiscation and retention of the guns is a taking of property without just compensation under the Fifth Amendment.

4. Whether the City Defendants violated Lori’s Fourteenth Amendment right to procedural due process by refusing to return the guns after the decision of the California Sixth District Court of Appeal, where the court of appeal stated that “the procedure provided by section 33850 et seq. for return of firearms in the possession of law enforcement remains available to Lori.” (Rodriguez, 2015 WL 1541988 at *8)

Seattle v. Long – Washington State Appellate Court - Homelessness / Eighth Amendment This case involves a tow and impound of a vehicle being used as a residence by a homeless individual, Mr. Long. The police received a complaint that someone associated with Stephen Long's pick-up truck threatened someone with a knife. No charges were filed related to this incident, however, the officers informed Mr. Long that his car was parked on City property and that it was illegal to park on City property for more than 72 hours. Parking enforcement put a sticker on the vehicle, providing notice that Mr. Long had 72 hours to move his vehicle. Parking enforcement actually gave Mr. Long an extra 4 days to move his car as he had indicated he needed a part for it. When it still wasn’t moved, it was towed. Mr. Long contested the impound. At the contested hearing, Mr. Long did not dispute his vehicle was illegally parked, but instead indicated that he was living in his vehicle and that he was indigent. Rather than require Mr. Long to pay the full amount of costs associated with an impound like everyone else normally does, the magistrate judge: (1) waived the parking ticket; (2) reduced the actual costs of impound; and, (3) provided Long the opportunity to agree to a Payment Plan, whereby he would pay back the City $50 a month, for twelve months without interest. If Mr. Long failed to make payments under the Payment Plan, his vehicle would not be subject to forfeiture, attachment or execution, but instead, he would be potentially subject to administrative penalties and collection efforts. On appeal from the magistrate judge’s decision, Mr. Long argued that the City violated the Fourteenth Amendment’s substantive due process clause by acting with deliberate indifference to his personal and physical safety when it impounded his truck as he did not have shelter once it was towed. He also argued the impoundment was a penalty and amounted to an excessive fine


under the Eighth Amendment due to the fact that he was homeless / indigent. Finally, he argued that under the State’s Homestead Act, the impoundment was unlawful. The Homestead Act of the Washington Constitution states that “[t]he legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families.” The Act was amended to include personal property noting that some citizens reside on their boats or in their cars. On appeal, the Superior Court reversed, in part, concluding that: (1) Long's substantive due process "defense" was groundless; (2) requiring Long to pay any amount associated with impound violated the Eighth Amendment’s prohibition against excessive fines; and, (3) that the Payment Plan violated the Homestead Act.

The issue on appeal is whether requiring Mr. Long to reimburse the City for the amount associated with the impound violated the Eighth Amendment’s prohibition against excessive fines and whether the Payment Plan violated the Homestead Act.

LaPorta v. City of Chicago – Seventh Circuit - Monell Liability

In January 2010, Patrick Kelly, an off-duty police officer, was drinking and hanging out with his life-long friend, Michael LaPorta whom he shot in the head, resulting in lasting injuries. LaPorta sued the City of Chicago under Monell alleging the City violated his due process right to bodily integrity. Specifically, LaPorta argued the city’s de facto policies led to the January 2010 incident. These policy flaws included failing to discipline officers, failing to investigate officers accused of misconduct, and failing to maintain an adequate Early Warning System (EWS) to identify and correct problematic behavior. Essentially, plaintiff contends that the police department’s code of silence and its failure to investigate officer misconduct shield off-duty police officers who commit violence against citizens and these officers therefore believe they can use violence with impunity.

Chicago moved for summary judgment, arguing that because Kelly was acting as a private citizen at the time LaPorta was shot, Kelly could not violate the Constitution as he could not be acting “under the color of state law” for the purposes of Section 1983. Chicago also argues that under DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1988), it had no constitutional duty to protect LaPorta from private misconduct. Finally, Chicago argues that LaPorta’s Monell claim should fail because there is no underlying constitutional violation.

The district court denied Chicago’s motion for summary judgment, concluding that Gibson v. City of Chicago, 910 F.2d 1510 (7th Cir. 1990), allows municipal liability under Monell whenever a municipal policy causes private misconduct even if the actor was not acting “under the color of state law” at the time. Further, the court explained that DeShaney did not apply in this case because LaPorta’s claim alleges that Chicago itself through its policies caused the harm. Here, the court concluded that a jury could find (and summary judgment was therefore


inappropriate) that his off-duty decision to drink to excess and shoot LaPorta with his service weapon were caused by the belief that he was impervious to the consequences due to the “code of silence” within the police department.

The case was tried to a jury, which awarded $44.7 million in damages and the court ordered an additional 2.5 million in costs. The court denied Chicago’s post-trial motions and the case is now being appealed to the Seventh Circuit.

The issue in this case is whether Monell applies to the conduct of an off-duty officer.

Smart v. City of Wichita – Tenth Circuit - Qualified Immunity

Bars were closing in downtown Wichita around 1:45 am and around 200-300 people were socializing outside on the streets. Office Froese exited his vehicle and started to walk toward what looked like a fight so he could intervene when he heard a gunshot. He turned toward the shot and saw Smart, whom he believed was holding a gun, and then two more shots were fired. Officer Chaffee was positioned in a different part of the crowd and also heard gun shots. Chaffee also saw Smart, and also testified that Smart appeared to be holding a gun. Immediately after the gun was fired, people in the crowd panicked and began running, most going South. Smart, however, started running north. The officers chased Smart and believed he was still holding a gun. As he closed in on him, Officer Froese fired on Smart (it is disputed as to whether he gave a warning). Officer Chaffee, coming from a different direction heard the shots, but didn’t know if Smart or an officer had fired them. Chaffee then fired on Smart and Smart fell to the ground at which point he was fired on 3 more times by Chaffee and was killed (it is similarly disputed as to whether Chaffee gave warnings before firing on Smart). Whether Smart was holding a gun is a disputed fact, however, it is undisputed that the officers believed he was armed and had fired the shots into the crowd. A handgun was found 10 feet from Smart in the alley where he was shot and casings at the scene where shots were fired into the crowd were linked to the gun found near Smart. Smart’s estate sued the officers under Section 1983, claiming a Fourth Amendment violation. The district court concluded that there were enough factual disputes that for the purposes of summary judgment, the plaintiffs met their burden to show that the officers violated Smart’s Fourth Amendment rights. Specifically, the court concluded that for the purposes of summary judgment, it would assume Smart did not have a gun (though conceded this would be up for the jury to decide) and thus, he could not have been threatening the officers or bystanders. Further, the court concluded that a jury could deem even a mistaken perception by the officers that he had a gun to be unreasonable for the purposes of summary judgment. In other words, if Smart didn’t have a gun, a jury would need to decide whether their mistaken belief that he did have a gun was reasonable such that deadly force would be justified.


Nonetheless, the court went on to conclude that the officers were entitled to qualified immunity because the law was not sufficiently clear that their conduct was unconstitutional. The court explained that the plaintiffs failed to point to any precedent that would squarely govern the facts at issue in the case, or to show that the officers’ actions were plainly incompetent, or that they knowingly violated the law. Specifically, the court explained that nobody disputes that shots were fired into a crowd of hundreds of people, or that officers were confronted with a “chaotic situation and the need to quickly disarm the shooter to protect innocent bystanders.” The court concluded that it was not egregious for the officers to shoot Smart under the mistaken perception that he was the active shooter under these circumstances.

The issues on appeal are whether the officers violated the Fourth Amendment and if so, whether the law was clearly established such that they would not be entitled to qualified immunity.

Reilly v. Harrisburg – Third Circuit – Buffer Zones

Plaintiffs provide “sidewalk counseling” outside of two healthcare facilities in Harrisburg, PA. Plaintiffs engage in leafletting and individual conversations with women who are attempting to enter the health care facilities to dissuade them from obtaining an abortion. After complaints from patients, the clinic’s employees, and violence during a demonstration outside the clinic involving pepper spray being used by protesters, the city council passed an Ordinance adopting a buffer zone around the clinics’ entrances. Specifically, the Ordinance’s makes it illegal for individuals, other than police or emergency personnel performing official functions, or employees of health care facilities that are assisting patients to enter or exit the facilities, to “knowingly congregate, patrol, picket or demonstrate in a zone extending 20 feet from any portion of an entrance to, exit from, or driveway of a health care facility.” When the Ordinance was passed, the City was facing severe financial hardship and was not in a position to station police outside of the healthcare clinics as that would have required hiring additional officers and it therefore believed that the buffer zone was the best way to promote public safety.

Plaintiffs seek to enjoin the enforcement of an Ordinance, claiming it violates their First Amendment rights.

The court first reviewed the Ordinance to determine if it was content-neutral under Reed, concluding that it was based on the fact that the ordinance is focused on the actions of the protesters not the content of their speech. The court reasoned that what is relevant for the purposes of enforcing the Ordinance, is not the message of the speaker, but the time, place, and alleged encroachment into personal space of clinical patrons.

The court then explained that the ordinance survived intermediate scrutiny. The district court held that although the Plaintiffs demonstrated that the Ordinance substantially burdens their First Amendment rights (a “minor physical restriction on a profound right”), Defendants met their burden to show that the Ordinance was narrowly tailored to achieve a legitimate governmental interest because the City considered less-restrictive alternatives, ruled them out as less effective,


and demonstrated that other less-restrictive methods had been tried and failed. The court therefore denied the plaintiffs’ preliminary injunction.

The issue on appeal is whether the buffer zone violates the First Amendment.

Metropolitan Government of Nashville & Davidson County v. Danyelle Bennett – First Amendment / Social Media – Sixth Circuit The morning after the 2016 Presidential Election, Plaintiff posted an image of an electoral college map that revealed Donald Trump as the winner of the election. A Facebook user, identified as Mohamed Aboulmaouabhib, commented on Plaintiff’s post of the electoral college map, “Redneck states voter for Trump, niggaz and latinos states votre for hillary.” Plaintiff responded, “Thank god we have more America loving rednecks. Red spread all across America. Even Niggaz and latinos voted for Trump too!” Plaintiff’s response prompted a co-worker, to comment, “Was the niggaz statement a joke? I don’t offense easily, I’m just really shocked to see that from you.” Plaintiff defended her comment and replied that her post was in response to Mr. Aboulmaouabhib’s “ignorant message” and she was “only racists against ignorance and rudeness.” Later, another co-worker commented, “I’m offended and this will be reported. As well as deleted.” Several co-workers complained to their respective supervisors, their respective managers, the Emergency Communications Center (“ECC”) HR department or the Metro HR department about the content of Plaintiff’s Facebook post. A citizen also complained to the Mayor’s Office of Neighborhoods and indicated that based on the content of Plaintiff’s post, the complainant feared a person of color may not receive adequate assistance when calling 911. The Office of Neighborhoods informed the ECC Director. When the ECC Director spoke with Plaintiff, Plaintiff indicated she did not feel the post was offensive and was merely mocking the person who posted before her. The Director ultimately terminated her employment after she showed no remorse or accountability. The Plaintiff appealed and an administrative law judge and the civil services commission both upheld the termination decision. She then filed a federal lawsuit and the district court denied Nashville’s summary judgment motion, concluding that under Pickering, the factors weighed in the employee’s favor such that a jury should decide the issue. Specifically, the court found given “Plaintiff’s significant interest in speaking on a matter of core public concern —which did not relate to her job duties—and the relatively slim evidence of workplace disruption resulting therefrom, the Court concludes Defendant’s interest in workplace efficiency is less robust than Plaintiff’s interest in commenting on a presidential election.” The case went to a jury to answer special interrogatories on questions of fact. The district court judge then took those jury interrogatory answers to rule on the legal matters presented in the case such as whether the employee’s speech was protected by the First Amendment and to conduct the Pickering balancing test. The court ultimately ruled in


favor of the plaintiff, concluding that Nashville violated her First Amendment rights by terminating her employment for the offensive Facebook post and then the jury found the City liable. Nashville is appealing the decision and among the issues to be appealed is whether the plaintiff’s use of the n-word is constitutionally protected conduct in the public employment context. Nashville will also likely appeal the manner in which Pickering was applied in this case given that it gave less weight to workplace disharmony than it would have for police and fire departments.

Portland Pipeline Corporation v. South Portland – First Circuit – Local Zoning / Preemption

Portland Pipeline Corporation (PPLC) operates a number of pipelines which pass underground between South Portland and Montreal, Canada where the oil refineries are. South Portland maintains Pier 2, where tanker vessels have historically docked to deliver oil. Pier 2 is in the City’s shipping zoning district (“S”) and is adjacent to public parks. PPLC has transported oil northbound to Montreal for decades by offloading oil from Pier 2, transporting it 2.5 miles to its “Main Tank Farm” and then loading it into its pipelines. The Main Tank Farm is zoned “C” for Commercial and is adjacent to residential neighborhoods, schools, etc.

PPLC sought to reverse the flow of oil in some of its pipelines, such that it would be bringing crude oil or “tar sands” oil from Montreal and then load it onto ships in the City’s harbor for shipment to both US and international destinations.

In 2012-2013, advocates began opposing the flow reversal project. An initial ordinance that would have banned the project failed in the city council, but the council agreed to a moratorium on development proposals involving the loading of oil sands / tar sands products onto tank vessels docking in the City to study the implications in terms of land use, environmental, health effects, and other regulatory implications of the development proposal.

Over the next six months, the City created a committee to study the impacts of the proposed development and invited PPLC to participate in the hearings held by the committee. The City concluded that higher concentrations of HAP emissions caused by the crude oil loading would cause increases in City residents’ risk of cancer and that these risks were particularly concerning due to the proximity of the PPLC facilities to schools, parks, and other areas most used by children and the elderly.

Ultimately, after extensive hearings and study, the city council voted to pass the Clear Skies Ordinance, which sought to protect citizens and visitors from harmful effects caused by air pollutants and conserve natural resources. The Ordinance prohibits the storing and handling of petroleum or petroleum products for the “bulk loading of crude oil onto any marine tank vessel” in commercial and shipping zoning districts. The Ordinance further prohibits the installation or construction of any structures with the potential to emit air pollutants for the purpose of loading of crude oil onto any marine tank vessel in the C and S zoning districts.


PPLC argues that if it cannot reverse the flow of its pipeline, the company will go out of business and the ordinance prohibits it from doing so. PPLC sued, arguing that the zoning ordinance is preempted by a number of federal and state laws, including the interstate pipeline safety act (PSA), the Port and Waterways Safety Act (PWSA), federal maritime law and that the ordinance violates the dormant commerce clause.

The district court found that the ordinance was not preempted by any federal or state law, did not violate the dormant commerce clause and was instead, a lawful exercise of a local government’s historical police powers.

IMLA’s amicus brief on appeal will focus on the preemption issues in the context of local zoning powers.

AT&T v. United States & Federal Communications Commission – Ninth Circuit – FCC Small Cell / Rights of Way

The Federal Communications Commission (“FCC”) has released a series of Report and Orders and Declaratory Rulings in an effort to streamline deployment of wireless and wireline infrastructure to prepare for the 5G wave in the wireless sector, and to bridge the digital divide in both the wireless and wireline sectors. These orders seek to streamline broadband deployment nationwide through deregulation of the industry. Six lawsuits have been filed thus far challenging the FCC’s Rulings (the “Orders”), which set out standards for the deployment of small cells for 5G. These lawsuits have been consolidated and sent to the Ninth Circuit. The Orders at issue in the consolidated case significantly limits the authority of local governments in managing the public right of way. The Orders restrict requirements local governments may impose on wireless carriers (for example, no undergrounding requirements are allowed). They also restricts the fees a local government may charge a carrier to cost-based fees, allows for large batched applications, imposes strict shot clocks with less time for local governments to review applications, and forbids the implementation of moratoria. Finally, the Orders broadly prohibit any local rules that prevent wireless expansion. Local governments may still impose aesthetic requirements, though there are significant restrictions on what kinds of aesthetic requirements are allowed. A number of local governments filed suit, arguing that the FCC exceeded its statutory authority, that the orders violate the Administrative Procedures Act (APA), and they violate the Constitution based on the Tenth and Fifth Amendments. The major wireless carriers are participating in the suit, arguing that the FCC did not go far enough by failing to provide a deemed granted remedy for wireless carriers. The issues in the case are:


1. Whether the orders exceed the FCC’s statutory authority?2. Whether the orders are arbitrary and capricious and an abuse of discretion under the

Administrative Procedures Act?3. Whether the orders violate the Tenth and Fifth Amendments of the U.S. Constitution?

City of Los Angeles v. Whitaker - Ninth Circuit – APA / Local AutonomyChicago v. Whitaker – Seventh Circuit – APA / Local Autonomy

The DOJ imposed new immigration related conditions on recipients of the Byrne Jag grant, a formula grant providing hundreds of millions of dollars to state and local governments for law enforcement and public safety purposes. Local governments around the country have argued that the conditions exceed the DOJ’s statutory authority and therefore violate the Administrative Procedure Act and that they violate the separation of powers, the Spending Clause, and the Tenth Amendment as they unlawfully commandeer state and local governments to act as arms of the federal government for the purposes of immigration enforcement. In both cases, the district courts entered a preliminary injunction in favor of each city, finding the conditions were ultra vires and unconstitutional in violation of the separation of powers. DOJ has appealed the preliminary injunction in both cases.

NYC v. BP et. al, City of Oakland v. BP et. al., County of San Mateo v. Chevron et al. – Second Circuit / Ninth Circuit – Preemption / State Nuisance Claims

Cities and counties across the United States have brought lawsuits against major oil and gas companies claiming they knew for decades their products caused climate change but denied or downplayed the threat while promoting their products. The complaints claim that the defendants engaged in an overt public relations campaign intended to cast doubt on climate science. These lawsuits have been brought under state common law (including public and private nuisance, trespass, negligence, etc.). The suits seek damages or compensation for current and future costs associated with climate change (such as health related deaths, flooding due to sea-level rise, etc.). Presently, three batches of cases are on appeal to the U.S. Courts of Appeal – two to the 9th Circuit (Oakland / San Francisco and San Mateo), and one to the 2nd Circuit (NYC). Two of the three lower courts (NYC, Oakland / San Francisco) to hear these cases have ruled that cities and counties may not bring state common law claims and dismissed the lawsuits. One court (San Mateo) has ruled cities and counties may bring state common law claims and ordered the cases before it remanded to state court. By way of background, in American Electric Power v. Connecticut (2011) the Supreme Court held a federal common law public nuisance lawsuit seeking an injunction against power companies to reduce greenhouse gas emissions (GHGs), brought by cities and states, was displaced by the Clean Air Act, which delegates authority to regulate GHGs to the U.S.


Environmental Protection Agency (EPA). In Native Village of Kivalina v. ExxonMobile (2012), the Ninth Circuit held that a federal common law public nuisance lawsuit seeking damages for climate change brought by a Native village in Alaska was also displaced by the Clean Air Act. (Displacement of federal common law by a federal statute is, in essence, the same as preemption of state common law by a federal statute.) The courts deciding the New York City and Oakland / San Francisco cases relied on the above two cases to conclude that, first, a federal common law public nuisance claim for climate change does exist and, second, that as a result of the existence of a federal nuisance claim cities and counties cannot bring state common law claims for damages for climate change. The courts concluded that any federal common law nuisance claim was displaced by the Clean Air Act under American Electric Power regardless of the actual theory of liability in these cases. In contrast, the court in San Mateo concluded that the existence of a federal common law claim does not eliminate the state common law claim, and that the Clean Air Act’s delegation of regulatory authority to EPA does not preempt state law claims. “To the contrary, the Clean Air Act and the Clean Water Act both contain savings clauses that preserve state causes of action and suggest that Congress did not intend the federal causes of action under those statutes "to be exclusive.” The issue in these cases is whether cities and counties may bring state common law claims seeking damages or compensation for climate change impacts.

IMLA’s AMICUS PROGRAM

Since 1935, the International Municipal Lawyers Association has vigorously represented the interests of local government attorneys. IMLA’s amicus program is among the most respected in the country. IMLA collaborates with leading advocates nationwide to deliver authoritative and impactful briefs to the Supreme Court and state and federal appellate courts on behalf of IMLA members, at no cost.

If your municipality would like to benefit from IMLA’s amicus program—as well the many other benefits of IMLA membership--we invite you to join the many thousands of cities, towns and counties who are IMLA members. If you have any questions about membership or any of our programs, please contact Chuck Thompson, IMLA’s Executive Director, at [email protected] or at 202-742-1016 or Amanda Kellar, IMLA’s Director of Legal Advocacy, at [email protected] or 202-466-5424 x 7116.




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