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False Arrest/Imprisonment: Warrant
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An arrestee claimed that police officers
violated his federal constitutional and Connecticut state law rights in
investigating and arresting him for assaulting a guest at a college New
Year’s Eve party. The charges were later dropped. A federal appeals court
ruled that the defendant officers were entitled to qualified immunity.
The officers did not need probable cause to interview the plaintiff on
January 2, 2013 since he was not under arrest during the interview.
Subsequently, during the investigation there was probable cause for his arrest
warrant based on a non-defective eyewitness identification
without regard to his allegedly coerced statements. His statements from
the interview were not necessary to establish probable cause and
therefore he could not claim that their use was in violation of the Fifth
Amendment. The police procedures used at his interview were not so
egregious or shocking as to violate Fourteenth Amendment due process or
to support a state claim for intentional infliction of emotional
distress. Mara
v. Rilling, #17-3326, 921
F.3d 48 (2nd Cir. 2019).
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Firearms Related: Second Amendment Issues
A federal appeals court has rejected a Second Amendment constitutional
challenge to a Massachusetts state statute, Mass. Gen. Laws ch. 140, 121,
banning the sale, transfer, and possession of certain semiautomatic
firearms defined as “assault weapons” and large-capacity magazines (LCMs).
The plaintiffs argued that they had an “unfettered” Second Amendment right
to possess the prohibited items in their homes for purposes of
self-defense. The court rejected this claim, finding that intermediate
scrutiny, rather than strict scrutiny, was the appropriate legal standard for
Second Amendment rights infringement claims. The court then found that even
if the prohibited items have some degree of protection under the Second
Amendment and the Act in question implicates the core Second Amendment
right of persons to bear arms in self-defense in their home, the law
“minimally burdens” that right and withstands intermediate scrutiny. The law did not ban all semiautomatic weapons and
magazines, but only banned specifically enumerated semiautomatic assault
weapons, magazines of a particular capacity, and semiautomatic assault
weapons that had certain combat-style features, which were not commonly
used for home self-defense. Worman
v. Healey, #18-1545, 922 F.3d
26 (1st Cir. 2019).
An Illinois law governing the concealed carry of firearms in the state
requires applicants for a concealed carry license to make a showing that
they are not a clear and present danger to themselves or a threat to public
safety. They must show that they have not, within the past five years, been
a patient in a mental hospital, convicted of a violent misdemeanor or two
or more DUIs under the influence of alcohol or drugs, or participated in a residential or court-ordered
drug or alcohol treatment program. The standards are the same for both
resident and non-resident applicants.
A Second Amendment challenge was asserted
by non-resident applicants. State police conduct an extensive background
check for each applicant. During the five-year licensing period, state
police check all resident licensees against the Illinois Criminal History
Record Inquiry and Department of Human Services mental health system daily.
The law also mandates that physicians, law enforcement officials, and
school administrators report persons suspected of posing a clear and
present danger to themselves or others within 24 hours of that
determination. Monitoring compliance of out-of-state residents is limited
by Illinois’s inability to obtain complete, timely information about
nonresidents, so Illinois issues concealed carry licenses only to
nonresidents living in states with licensing standards substantially
similar to Illinois standards.
A federal appeals court upheld the statute
against the nonresident applicant’s challenge as respecting the Second
Amendment without offending the anti-discrimination principle at the heart
of the U.S. Constitution’s Article IV’s Privileges
and Immunities Clause, which states that “The citizens of each state
shall be entitled to all privileges and immunities of citizens in the
several states.” The Privileges and Immunities Clause, the Court stated,
did not compel Illinois to afford nonresidents firearm privileges on terms
more favorable than afforded to its own citizens, and the statute did not
discriminate against out-of-state residents in violation of equal
protection. Culp
v. Raoul, #17-2998, 921 F.3d
(7th Cir. 2019).
First Amendment
****Editor's Case Alert****
An
important new U.S. Supreme Court ruling greatly limits the circumstances
under which a suspect arrested with probable cause can assert a claim for
damages for alleged violation of their First Amendment free speech rights
by that arrest. An 8-1 majority of the Court ruled that an
arrestee’s claim that two police officers retaliated against him for his
protected First Amendment speech by arresting him for disorderly conduct
and resisting arrest could not survive summary judgment. The incident
occurred during a winter sports festival, “Arctic Man,” a raucous winter
sports festival held in a remote part of Alaska. One of the officers was
speaking with a group of attendees at the festival when the seemingly
intoxicated plaintiff started shouting at them not to talk to the police.
When the officer approached him, the plaintiff began yelling at the officer
to leave.
Rather than escalate the situation, the officer left. Minutes later, the
plaintiff approached a second officer in an aggressive manner while he was
questioning a minor, stood between him and the teenager, and yelled with
slurred speech that the officer should not speak with the minor. When the
plaintiff stepped toward the officer, the officer pushed him back. The
first officer saw the confrontation and initiated an arrest. After he was
handcuffed, the arrestee claims that the first officer said "bet you
wish you would have talked to me now." The only evidence of
retaliatory animus identified by the U.S. Court of Appeals for the Ninth
Circuit was the plaintiff’s affidavit alleging that statement by the first
officer. But that allegation said nothing about what motivated the second
officer, who had no knowledge of the plaintiff’s prior run-in with the
first officer.
In any event, the Court found that the retaliatory arrest claim against
both officers could not succeed because they had probable cause to arrest
him. The existence of probable cause to arrest defeated his First Amendment
claim as a matter of law. Under the Court’s analysis, the existence of
probable cause for an arrest will ordinarily bar a claim that the arrest
was made in retaliation for protected First Amendment speech. The Court’s
opinion did provide for a small exception to this general rule where
officers have probable cause to make arrests, but typically exercise their
discretion not to do so, particularly with arrests made for very minor
offenses. An unyielding requirement to show the absence of probable cause
in such cases could pose “a risk that some police officers may exploit the
arrest power as a means of suppressing speech.”
The presence of probable cause will not bar a claim that the arrest was
made in retaliation for protected First Amendment speech when objective
evidence is presented that the plaintiff was arrested when otherwise
similarly situated individuals not engaged in the same sort of protected
speech had not been. Nieves
v. Bartlett, #17-1174, 2019 U.S. Lexis 3557 (May 28, 2019),
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Immigrants and Immigration Issues
Nine Latino men living in areas of
Northern Virginia with many residents of Latino ethnicity, filed suit
against federal immigration agents, seeking money damages for the ICE
agents’ alleged violations of their rights under the Fourth and Fifth
Amendments. They claimed that ICE agents stopped and detained them
without a reasonable, articulable suspicion of unlawful activity; invaded
their homes without a warrant, consent, or probable cause; and seized
them illegally while engaged in enforcing immigration law.
A federal appeals court overturned the
denial of the ICE agents’ motion to dismiss the lawsuit based on
qualified immunity. It held that a remedy for the alleged constitutional
violations was not available under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics,
#301, 403 U.S. 388 (1971), under the circumstances of this case. There is
no statute authorizing a claim for money damages for such violations, and
it was a significant step under separation-of-powers principles for a
court to impose damages liability on federal officials. Because the
plaintiffs sought to extend Bivens liability to a context
the U.S. Supreme Court has yet to recognize and there are special factors
counseling hesitation in the absence of affirmative action by Congress,
the plaintiffs’ action for damages was dismissed. Tun-Cos
v. Perrotte, #18-1451, 2019
U.S. App. Lexis 12571 (4th Cir.).
The federal government filed suit against the state of California
challenging its enactment of three “sanctuary state” laws designed to
protect state residents from enforcement of federal immigration laws. The
three statutes are AB 450, which requires employers to alert
employees before federal immigration inspections, AB 103, which imposes
inspection requirements on facilities that house civil immigration
detainees, and SB 54, which limits the cooperation between state and
local law enforcement and federal immigration authorities.
A federal appeals court found that it was no abuse of discretion to
conclude that AB 450’s employee-notice provisions neither burden the
federal government nor conflict with federal activities, and that any
obstruction caused by SB 54 is consistent with California’s prerogatives
under the Tenth Amendment and the anticommandeering rule. The denial of a
preliminary injunction as to these laws was therefore upheld. The court
also upheld the trial court's denial of a preliminary injunction as to
provisions of AB 103 that duplicated inspection requirements otherwise
mandated under California law.
However, the court held that one subsection of AB 103, codified at
California Government Code section 12532(b)(1)(C), discriminates against
and impermissibly burdens the federal government, and so is unlawful
under the doctrine of intergovernmental immunity. Therefore, the court reversed
the preliminary injunction order as to this part and ordered further
proceedings. U.S.
v. California, #18-16496, 921 F.3d 865 (9th Cir. 2019).
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Search and Seizure: Home/Business
****Editor's Case Alert****
During the
administrative search of a medical clinic for civil violations
concerning medical licenses and regulating the prescription of controlled
substances that resulted in the plaintiff owner being detained for a
few hours, the investigator pushed the plaintiff down, drew his gun
multiple times, and limited the plaintiff’s movement and access to
facilities such as the restroom. The rarely arising issue in the
resulting lawsuit was whether the government may detain the owner of a
business that is being searched not because of suspected criminal
activity but instead for possible civil violations. [The issue in the
context of searches for criminal activity is governed by Michigan
v. Summers, #79-1794, 452 U.S. 692 (1981), which allows law
enforcement to detain the occupant of a residence where a criminal
search warrant is being executed, but requires the scope of that
detention to be reasonable].
A federal appeals court upheld the
dismissal of claims against the investigator. While the lawsuit’s
allegations established a Fourth Amendment violation based on the
intrusiveness of the detention, the “sparse” caselaw in this area had
not “clearly established” the unlawfulness of this type of detention.
Therefore, the investigator was entitled to qualified immunity. Okorie
v. Crawford, #18-60335,
921 F.3d 430 (5th Cir. 2019).
Search and Seizure: Vehicles
****Editor's Case Alert****
A city used a common parking
ordinance enforcement practice known as “chalking.” Parking enforcement
officers use chalk to mark the tires of parked cars to track how long
they have been parked at a particular location. They then return to the
car after the posted time for parking has passed, and if vehicles in
the area still have chalk marks, indicating that the vehicle has not
moved, a citation is issued. A motorist who frequently received such
citations sued the city and a parking enforcement officer, arguing that
chalking violated her Fourth Amendment right to be free from
unreasonable search.
The trial court ruled
that, while chalking may have constituted a search under the Fourth
Amendment, the search was reasonable. A federal appeals court reversed,
characterizing the practice as a regulatory exercise. The chalking, the
appeals court reasoned, involves a physical intrusion and is intended
to gather information. While automobiles have a reduced expectation of
privacy, the need to deter drivers from exceeding the time permitted
for parking before they have even done so is not sufficient to justify
a warrantless search under the community caretaker rationale. Taylor
v. Saginaw, #17-2126, 922
F.3d 328 (6th Cir. 2019).
Sex Discrimination
An
activist organization challenged a city’s indecent exposure ordinance
as violative of the Equal Protection Clause of the Fourteenth Amendment
since it prohibited only the exposure of the female breast, while
allowing the exposure of the male breast. A federal appeals court
upheld summary judgment for the defendant city. The court found that
its prior precedent of Ways
v. City of Lincoln, #02-3355, 331 F.3d 596 (8th Cir. 2003)
controlled the case and was still valid. In Ways, the
court upheld an ordinance prohibiting the showing of the female breast with
less than a fully opaque covering on any part of the areola and nipple
against a similar equal protection challenge. In this case, as in Ways,
the court found, the city's ordinance was “substantially related” to
its important governmental interests in promoting public decency and
proscribing public nudity to protect morals, public order, health, and
safety. Free
the Nipple v. City of Springfield, Missouri, #17-3467, 2019 U.S. App. Lexis 13481 (8th Cir.).
Editor’s Note: Another federal appeals circuit court of
appeals reached a different result. See Free
the Nipple v. City of Fort Collins, #17-1103, 915 F.3d 792 (10th Cir. 2019), In that
case, a Colorado city passed
a public-nudity ordinance that imposed no restrictions on male
toplessness but prohibited women from baring their breasts below the
areola. In response, Free the Nipple, an unincorporated association,
and two female individuals sued the city in federal district court,
claiming that the ordinance violated the Equal Protection Clause of the
Fourteenth Amendment by discrimination on the basis of sex, and they
asked for a preliminary injunction to halt the ordinance’s enforcement.
The trial court agreed and enjoined the city, pending the resolution of
the case’s merits, from implementing the ordinance to the extent that
it prohibits women, but not men, from knowingly exposing their breasts
in public. The city then brought an interlocutory appeal to challenge
the injunction. The narrow issue presented for the appeals court’s
review asked whether the trial court reversibly erred in issuing the
preliminary injunction. The appeals court found that the trial court
did not, affirmed the trial court’s judgment and remanded the case for
further proceedings.
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