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May 31, 2017

The Supreme Watch: And Then There Were Nine

By Sophia M. Stadnyk

More than a year after the death of Justice Antonin Scalia, there is hope that the Supreme Court might finish the Term with a full complement of nine justices. The confirmation hearing for Judge Neil Gorsuch concluded in March, which means he may be confirmed in time for the commencement of the April sitting on April 17. In the meantime, however, there are several important cases we’ll be following throughout the next several months.

Land Use

One of the more interesting local government cases is Murr v. Wisconsin, No. 15-214, addressing takings in the context of merger provisions in zoning codes. The Murr parents acquired a waterfront parcel, Lot F, in 1960 and built a cabin; title was later transferred to a family-owned business. In 1963, the Murr parents bought an adjacent parcel, Lot E, kept vacant as an investment property. Both lots were later transferred to the Murr children, which triggered the application of certain land use restrictions. Together, the lots contained approximately .98 acres of “net project area” (developable land minus rights-of-way, wetlands, slope preservation, and similar carve-outs), and a 1975 ordinance prohibited the development or sale of adjacent, “substandard” lots under common ownership unless an individual lot had at least one acre of net project area. In the absence of common ownership, Lot E remained “developable” because grandfathering preserved the status of any lot created prior to 1976 as eligible for single-family residential use. The municipality denied a variance that would allow the Murrs to separately use or sell the lots (the denial was the subject of separate litigation). The Murrs next claimed that the ordinance resulted in an unconstitutional, uncompensated taking because its application meant Lot E was economically useless: it could not be sold or developed separately, and it was not suitable for alternative, nonresidential use.

The lower court declined to address the status of Lot E in isolation and considered the claim in the context of the two parcels combined. Because the property retained significant value despite the operation of the merger, it denied the claim. The essence of the appeal is the “relevant parcel” question and whether the “parcel as a whole” approach, based in Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 130–31 (1978), is correct and appropriate in these circumstances.

Establishment Clause

Three years after the Court grappled with the Establishment Clause and invocational prayers, another Establishment Clause case has emerged, in the less elevated guise of scrap tire recycling. Missouri’s recycling program awards cash grants for the purchase of recycled tires to resurface playgrounds. In 2012, 44 applicants, including the Trinity Lutheran Church, sought one of the 12 available grants. The church operates a learning center for preschoolers on church property and ranked fifth out of all applicants. Nonetheless, it was denied because Missouri’s constitution includes express prohibitions on public funds being spent or provided, directly or indirectly, in aid of a church (a “super-Establishment Clause”). After the church filed suit, the Eighth Circuit affirmed the denial, finding that the Missouri Constitution did not conflict with the Free Exercise Clause of the First Amendment or the Equal Protection Clause of the United States Constitution.

The church in this case, Trinity Lutheran Church of Columbia v. Pauley, No. 15-577, argues that these prohibitions on funding cannot justify the categorical exclusion of religious groups from generally available secular benefits when there is no valid antiestablishment concern and when the religious entity meets the neutral criteria for such benefits. Missouri argues, among other things, that the federal Constitution cannot compel a state to choose a church to receive a grant when that means turning down nonchurch applicants and points to an earlier decision, Locke v. Davey, 540 U.S. 712 (2004), in which the Supreme Court upheld, against First Amendment and Equal Protection challenges, a state scholarship aid program that excluded study for religious degrees based on the restrictions in the Washington State Constitution. Over 30 amicus briefs have been filed in this case, many but not all by representatives of various religious groups.

Fair Housing Act

Another closely watched case is the Fair Housing Act (FHA) based litigation in the consolidated cases, Wells Fargo v. City of Miami, No. 15-1112, and Bank of America Corp. v. City of Miami, No. 15-1111. Miami, in a 56-page complaint, had sued the banks, claiming that they engaged in patterns of discriminatory and predatory mortgage lending to minorities, with higher fees, costs, and risk, which in turn caused quicker and excessive foreclosures, which led to economic harm to the city through diminished tax revenues and increased costs because of urban blight. Apart from the intentional discrimination against minorities, the city alleged this violated the FHA because it had a disparate impact on minority borrowers, resulting in a disproportionate number of foreclosures on minority-owned properties and in minority communities overall. Although the FHA allows “aggrieved person[s]” to sue, the question is whether Miami falls within the “zone of interests” protected by the FHA and whether its injuries are proximately caused by the statutory violation.

The Eleventh Circuit concluded Miami had statutory standing because the “zone of interests” for the FHA “extends as broadly as permitted under Article III of the Constitution, and therefore encompasses the City’s claim.” In the petition for certiorari, the banks argued that this “extraordinarily broad view” would grant a cause of action “for anyone who suffers any foreseeable injury. On that view every foreclosure allegedly caused, even in part, by a discriminatory loan could trigger an FHA claim by neighbors, utility companies, local stores, and any other entity that suffers financial harm.” Miami, in short, is “plainly outside the FHA’s zone of interests,” and its injury is several steps removed from any alleged violations by the banks.

The Court heard arguments in November and, while sympathetic to the city, appeared to recognize the practical concerns involved with limiting potential plaintiffs and the damages that could be recoverable.

First Amendment

In the interests of confronting predatory behavior by convicted sex offenders in cyberspace, a North Carolina law made it a felony for a registered sex offender to access and use commercial social networking websites and other Internet content if the site is “know[n]” to allow minors to have accounts. Packingham, a registered sex offender, created and accessed a Facebook page under a fictitious name and was charged after a police officer spotted a post in which Packingham thanked God for a favorable court disposition of a parking ticket.

When Packingham sought to have the charges dismissed because, he said, the law was unconstitutional on its face or as applied to him, the North Carolina Supreme Court upheld his conviction. The law was a content-neutral regulation of conduct and only incidentally burdened the ability of sex offenders to engage in speech after accessing those websites that fell within the statute’s reach—the limitations imposed were based not on speech contained in or posted on a site but, instead, focused on whether functions of a particular website were available for use by minors using specific criteria. The Internet offered numerous alternatives that provided the same or similar services that Packingham could access without violating the law (for example, sites that were specifically available to users over 18). With respect to Facebook, North Carolina notes that the site’s own terms of use expressly prohibit convicted sex offenders from using the site, so Packingham’s use was illegal even absent the law.

On appeal, Packingham (and many amici in support of him) argue this statute is unconstitutionally overbroad (criminalizing any use of a prohibited site, regardless of whether it impacts the safety of minors), vague, and represents the undesirable tendency towards a “vast expansion” of criminal and collateral consequence laws and extra-sentence punishments. Arguments in Packingham v. North Carolina, No. 15-1194, took place at the end of February.

Criminal Law

On March 21, the Court issued a decision in Manuel v. City of Joliet, 580 U.S. ___ (2017), on unlawful detention and the scope of a malicious prosecution claim grounded in the Fourth Amendment and whether a claim may be brought even after police action gives way to legal process by way of a court hearing.

Manuel was a passenger in a car that Joliet police pulled over for a minor traffic violation. One officer claimed he detected the smell of marijuana and searched Manuel, finding a bottle of vitamin pills. Manual was arrested for possession with intent to distribute ecstasy after, Manuel alleged, the officers falsified the results of a field test on the pills and continued to fabricate evidence in reports to prosecutors and judges about the circumstances of the arrest and the nature of the pills. A state police lab report confirmed that the pills were not a controlled substance, yet Manuel was arraigned and was not released until after the district attorney sought dismissal of the charges several weeks later. More than two years after his arrest, but within two years after his case was dismissed, Manuel filed a 42 U.S.C. § 1983 lawsuit against the City of Joliet and the police officers, alleging unlawful arrest and unlawful detention resulting from the falsified drug test results.

The U.S. Court of Appeals for the Seventh Circuit confirmed his claim was foreclosed by precedent in Newsome v. McCabe, 256 F.3d 747, 750–52 (7th Cir. 2001). Newsome held that federal claims of malicious prosecution were founded on the right to due process, not the Fourth Amendment, so that once detention by reason of arrest turned into detention by reason of arraignment, the Fourth Amendment “gave way.” A malicious prosecution claim under federal law was available only if state law failed to provide an adequate remedy, which was not the case under Illinois law.

In a 6-2 decision, the Supreme Court reversed and remanded, finding that Fourth Amendment constitutional protections apply even after the start of “legal process” in a criminal case. “If the complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth Amendment.” Turning to the timeliness of Manuel’s suit—the point at which the claim accrued—the issue was whether the limitation began to run as of the arrest itself, or later, when criminal charges were dismissed. This question was remanded because no prior determination had been made by the court below; it simply determined that Manuel lacked any Fourth Amendment claim once legal process began. The Supreme Court directed that the appropriate starting point in delineating “the contours and prerequisites of a § 1983 claim” and its accrual was the common law of torts, while “closely attend[ing] to the values and purposes of the constitutional right at issue.”

Several other cases arise out of excessive force and qualified immunity questions.

In a decision early this year, the Supreme Court issued a unanimous per curiam opinion in White v. Pauly, 580 U.S. ___ (2017), considering excessive force, qualified immunity, and “clearly established law” in the context of a police shooting. State Police officers attended at the Pauly residence late at night to investigate after two women called 911 to report a “drunk” driver who stopped to confront them, “throwing up gang signs.” Daniel Pauly, the suspected driver, and his brother Samuel allegedly responded to police demands to come out with, “We have guns,” and discharged two warning shotgun blasts. When Samuel then pointed a handgun in the direction of Officer White, a late arrival, White shot and killed him. Pauly’s evidence was that the brothers feared the unknown intruders were related to the prior road rage altercation and were unaware that it was the police shouting, “We’re coming in,” until after the altercation was over. The entire incident lasted less than five minutes.

In the resulting 42 U.S.C. § 1983 lawsuit, the U.S. Court of Appeals for the Tenth Circuit denied qualified immunity, finding that a reasonable officer in White’s position would not have probable cause to believe there was an immediate threat of serious harm to himself or to another officer, such that he could shoot Pauly in his home without giving him a warning.

The Supreme Court disagreed. On the record, the Tenth Circuit overgeneralized and misunderstood the “clearly established” analysis by failing to identify a case in which an officer acting under similar circumstances as White was held to have violated the Fourth Amendment. “Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed.” The case was remanded for further proceedings, with the Court expressly declining to address whether the other officers were entitled to immunity and whether an alternative argument had been properly preserved (that White, who was present for at least three minutes of the altercation, had witnessed the other officers’ deficient performance and should have realized that corrective action was necessary before using deadly force).

County of Los Angeles v. Mendez, No. 16-369, another police shooting case, asks whether police officers who reasonably fear for their safety at the time of the shooting may still be found liable for injuries resulting from the use of reasonable force under the “provocation rule” created by the Ninth Circuit. Under this rule, an officer may be responsible for an otherwise reasonable use of force if the officer intentionally or recklessly provokes a violent confrontation, and the provocation is itself an independent Fourth Amendment violation. Police shot and seriously injured two people living in a shed on residential property—Angel Mendez and Jennifer Lynn Garcia—while searching for a wanted felony suspect, O’Dell. Based on a confidential tip that O’Dell was riding a bicycle in front of that residential property, police executed a warrantless search. Although officers were told beforehand that a man and a “pregnant lady” lived in the backyard, the police entered the shed without knocking or announcing their entry. Two officers shot Mendez and Garcia in reaction to seeing Mendez reaching for or holding a “firearm” (a BB gun).

The district court found the “provocation rule” applied, based on the warrantless search of the shed and the officers’ failure to “knock and announce” their presence, and awarded approximately $4 million in damages. The Ninth Circuit affirmed but limited the predicate Fourth Amendment violation to the warrantless entry only.

The outcome of this case is liable to have interesting repercussions. An amicus brief filed by the federal government in favor of the petitioner county and law enforcement, for example, notes that the United States government “has a substantial interest in the Court’s disposition of this case” because the Fourth Amendment applies to both federal and state law enforcement officers, and “qualified immunity principles applicable under Section 1983 also apply in civil actions against federal officers.”

Another pending police case is District of Columbia v. Wesby, No. 15-1485, in which the petition for certiorari had been relisted eight times before the Court agreed to hear the appeal. Metro Police Department (MPD) officers responded to a neighbor’s complaint about illegal activity—a party—at a vacant home. The officers claimed they arrived to the smell of marijuana, activity consistent with a strip club (women in underwear accessorized with dollar bills), and partygoers who ran and hid from the officers. The actual homeowner was not present and had not given permission for anyone to be on the premises; the putative host (described variously as “Peaches” and “Tasty”) was likewise not present and lacked any right to authorize the gathering because she had not finalized any rental agreement. Officers reached Peaches by phone: she acknowledged that she did not have permission to use the house and refused to come to the home because she said she would be arrested if she did. Based on this information, the police arrested the attendees for unlawful entry, being aware that the attendees (who uniformly failed to identify the actual property owner) had been invited by a woman that the attendees reasonably believed to be a lawful occupant. District of Columbia law on unlawful entry required entry without lawful authority and against the express will of the lawful occupant or owner, together with a general intent to enter.

Although no charges were ever brought, several of the arrestees sued the District of Columbia and the officers for false arrest under 42 U.S.C. § 1983, false arrest under common law, and negligent supervision, pointing to the lack of probable cause to arrest because of the attendees’ reasonable, good-faith belief in permission to enter and remain on the premises. The U.S. Court of Appeals for the D.C. Circuit agreed. The arrests violated clearly established Fourth Amendment rights and the District of Columbia law against false arrest, and the officers were not entitled to qualified immunity.

The Supreme Court is being asked to decide whether, when the property owner of a vacant home tells police that he has no authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit their questionable claims of an innocent mental state; further, even if there was no probable cause to arrest, whether the officers were entitled to qualified immunity because the law was not clearly established in this regard.

Petitions of Interest

In conclusion, here is a quick look at some of the appeals that the Court may decide to hear:

Magee v. Coca-Cola Refreshments USA, Inc., No. 16-688, considers whether Title III of the Americans with Disabilities Act of 1990 (ADA) applies only to physical spaces that people can enter. Magee claims that glass-front vending machines in public spaces are not accessible to him and others who are blind because they use an entirely visual “interface.” The Fifth Circuit held that the machines are not themselves “places of public accommodation” under the ADA. Estate of Jimma Pal Reat v. Rodriguez, No. 16-643, raises “state-created danger” liability and entitlement to qualified immunity questions, in which a 911 operator allegedly instructed a caller to return to a crime scene and refused to send the police to the place where the caller had safely fled, resulting in the caller’s death at the crime scene while waiting for the police (which the operator failed to dispatch, regardless).

Public Integrity Alliance, Inc. v. City of Tucson, No. 16-730, is an equal protection challenge to the constitutionality of Tucson’s method for electing its city council, which starts with ward-only primary elections held separately in each of the city’s six wards (where only voters resident in that ward may vote), followed by an at-large general election in which all qualified Tucson electors citywide may participate.

Mickelson v. County of Ramsey, No. 16-543, addresses a 42 U.S.C. § 1983 claim challenging a county’s practice of confiscating all of a detained arrestee’s cash upon booking, automatically deducting a $25 booking fee, and returning the balance on a prepaid debit card that comes with high weekly “maintenance fees,” ATM user fees, and “transfer to bank” fees.

By Sophia M. Stadnyk

Sophia M. Stadnyk is a lawyer and writer with extensive experience in local government and municipal law. She is admitted to the bar in jurisdictions in the United States and Canada.