December 01, 2015 Urban Lawyer

Case Notes

McCullen v. Coakley, 134 S. Ct. 2518 (2014)

A state statute creating a 35-foot buffer zone around abortion clinics violates free speech rights under the First Amendment of the United State Constitution because the law is not narrowly tailored to serve a significant government interest. The petitioners, McCullen and others (“Sidewalk Counselors”), approached women outside clinics to engage in “sidewalk counseling,” which involved offering information about alternatives to abortion and help pursuing those options. The respondent was Massachusetts Attorney General Martha Coakley and other Commonwealth officials (“Attorney General”), who represented the state in support of the law. The Sidewalk Counselors challenged the Massachusetts Reproductive Health Care Facilities Act (“Act”), which made it a crime to knowingly stand on a public way or sidewalk within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. MASS. GEN. LAWS, ch. 266, §§ 120E1/2(a) - (b) (2014). The Sidewalk Counselors argued the Act violated their right to free speech under the First Amendment because it denied them their principal methods of communicating with patients. The United States Court of Appeals for the First Circuit upheld the Act against the First Amendment challenge and rejected the Sidewalk Counselors’ arguments that the Act was substantially overbroad, void for vagueness, and an impermissible prior restraint. On appeal, the Supreme Court of the United States found that the Act regulated access to traditional public fora, such as public ways and sidewalks, which have a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate. However, even in a public forum, reasonable restrictions may be placed on the time, place, or manner of protected speech as long as the restrictions are justified without reference to the content of the speech, are narrowly tailored to serve a significant governmental interest, and do not exclude other alternative channels for communication of the information. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). First, the Court found that the Act was neither content nor viewpoint based because whether individuals violated the Act depended not on what they said, but on where they said it; therefore, the Act was not subject to strict scrutiny. Second, the Court found that the Act served important governmental interests, such as ensuring public safety outside abortion clinics, patient access to healthcare, preventing harassment and intimidation of patients and clinic staff, and unobstructed use of public sidewalks, roadways and clinic entrances. The third requirement was that the Act must be narrowly tailored. In order for the Act to be narrowly tailored, it must not “burden substantially more speech than is necessary to further the government’s legitimate interest.” Ward, 491 U.S. at 799. The Court held that the Act was not narrowly tailored because, although the buffer zones clearly served the government’s interest, the zones also imposed more burdens than necessary on the Sidewalk Counselors’ speech because they were deprived of their primary methods of communicating with patients. The Court also noted less burdensome alternatives the state could employ to achieve their interest, such as enacting legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, adopting an ordinance such as the one New York City has that prohibits obstructing access to a clinic and makes it a crime to follow or harass another person within 15 feet of the premises of a reproductive health care facility, or injunctions. Because the Court found that the Act was not narrowly tailored, it did not consider the fourth part of the test, which is whether the Act left open alternative channels of communication. (Sarah Starr)

Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014)

A state statute requiring abortion providers to have admitting privileges at a local hospital the day an abortion is performed does not violate the substantive due process rights of women seeking abortions because the statute does not impose an undue burden on a woman’s access to an abortion. Planned Parenthood of Greater Texas and other Texas women’s health clinics (“Planned Parenthood”), brought suit against Texas (“State”), for enacting 2013 Texas House Bill No. 2 (“HB2”) that required, among other things, a physician who performs abortions to have current admitting privileges at a hospital less than thirty miles from the location of the procedure. TEX. HEALTH & SAFETY CODE ANN. § 171.0031 (West 2013). The primary legal concern brought by Planned Parenthood involved HB2’s infringement on rights guaranteed under the Fourteenth Amendment of the United States Constitution, specifically, the substantive due process rights of women who pursue abortion. Initially, the United States District Court for the Western District of Texas held that HB2 was unconstitutional under the Fourteenth Amendment and accordingly issued a permanent injunction against the State, prohibiting enforcement of the statute. On appeal, the State contended that HB2 increased the likelihood a woman would receive prompt and proper care from a hospital in the case of an abortion-related complication, rather than attempting to obtain care from the abortion provider or a nearby emergency room. In response to the State’s claims, Planned Parenthood produced testimony demonstrating HB2 would cause up to one-third of abortion clinics in the state to close due to lack of local cooperation from the numerous hospitals in Texas that prohibit its personnel from performing abortions. These closures would leave women seeking abortion with much fewer and inconvenient options, and thus pose an undue burden on a woman’s constitutional right to an abortion. In its holding, the United States Court of Appeals for the Fifth Circuit concluded the State had a rationally related interest to the health and welfare of its citizens, and proceeded to compare the issue with Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). In Casey, the Court held that a state has a legitimate interest in regulating abortion and may do so long as the regulation is rationally related to the state’s interest. Id. at 966. However, if the state regulation poses an undue burden on a woman’s access to abortion, then the regulation is unconstitutional because it violates the Fourteenth Amendment’s guarantee of liberty. Id. at 874. Accordingly, the court focused on whether HB2 posed an undue burden to a woman’s substantive due process right to an abortion. Holding the hospital-admitting provision of HB2 valid, the court relied on the State’s evidence that indicated HB2 would protect the health and safety of women more than intrude with her ability to obtain an abortion. The court criticized the vagueness of Planned Parenthood’s contention that many hospitals would deny admitting privileges to abortion providers. Again relying on the holding in Casey, the court found that even if many of the remote abortion providers were forced to shut down as a result of HB2, most women would only have to travel less than three hours to reach other potential abortion services within the state. Accordingly, the court reversed the district court’s holding and rendered judgment for the State, concluding that HB2 did not pose an undue burden on women seeking abortion and therefore, did not violate women’s substantive due process right to an abortion. (Megan Stiles)

Chaudhry v. City of Los Angeles, 751 F.3d 1096 (9th Cir. 2014)

California’s survival statute, CAL. CIV. PROC. CODE § 377.34, which prohibits a decedent’s estate from recovering for pre-death pain and suffering, does not apply to claims where a state actor, in violation of federal law, causes a decedent’s death. Mohammad Usman Chaudhry, a 21-year-old Muslim man, was shot and killed during an altercation with a Los Angeles Police Department (“LAPD”) officer. Usman was diagnosed with autism and often wandered from his home. LAPD officers Joseph Cruz and David Romo found Usman sleeping in front of an apartment building and approached him, suspecting he was a drug user. Usman complied with the officers’ request to run his license. Cruz testified that while Romo was in the patrol car checking for outstanding warrants, Usman lunged at Cruz with a knife. Cruz then drew his gun and fired four shots, three of which struck Usman in the chest and abdomen. Cruz had a cut on his hand, and Usman died at the scene. At trial, the Chaudhrys presented evidence contradicting Cruz’s version of the events. They showed that Cruz did not yell “knife”; Usman’s DNA was not on the knife; the knife was one typically carried by police officers; and Usman suffered the gunshot wounds as he was collapsing to the ground, rather than while lunging at Cruz. The Chaudhrys won at trial against the City of Los Angeles (“the City”) under 42 U.S.C. § 1983 for unreasonable seizure and excessive force under the Fourth Amendment of the United States Constitution. The jury awarded $1,000,000 for the excessive force claim under § 1983 based on Usman’s pre-death pain and suffering. Nevertheless, the City moved for judgment as a matter of law, arguing that § 377.34 limits recovery to pre-death economic losses and does not provide for pre-death pain and suffering damages. The United States District Court for the Central District of California confirmed that Usman’s § 1983 claim survived his death under CAL. CIV. PROC. CODE § 377.20. However, § 377.34 prohibits a decedent’s family from recovering for a decedent’s pre-death pain and suffering damages. Accordingly, the court granted the City’s motion. Because federal law is silent on the measure of damages in § 1983 actions, the § 377.34 prohibition on pre-death pain and suffering damages governs unless it is inconsistent with the policies of § 1983. Holding that § 377.34 is inconsistent with the policies of § 1983, the United States Court of Appeals for the Ninth Circuit reversed. A primary goal of § 1983 is to provide a remedy when people are killed by a government official’s unlawful act, and the policy consideration is that of deterring government officials from future abuse. The Ninth Circuit referred to a United States Supreme Court decision, which considered a Louisiana law that abated a § 1983 tort claim when the plaintiff died without a survivor. See Robertson v. Wegmann, 436 U.S. 584 (1978). The plaintiff in Robertson had no surviving family members, and the unlawful act alleged in the claim did not cause the plaintiff ’s death. The Supreme Court found that the Louisiana law did not undermine deterrence because the government official could not predict that the plaintiff would die from an unrelated cause after the alleged § 1983 violation; whereas when a government official’s violation of § 1983 causes the plaintiff ’s death, the official may be able to predict, and even use to the state’s advantage, the plaintiff ’s death. Conceivably, § 377.34 creates a scenario where it might be financially advantageous for a police officer to kill, rather than injure, a person because, if a victim dies without a survivor, there is no remedy. If he dies with a survivor, the remedy is limited to pre-death economic losses, but if he lives, the law provides for pain and suffering damages. Unlike Louisiana’s law, which abates § 1983 claims when the violation did not cause the plaintiff’s death, § 377.34 reduces, and often eliminates, compensatory damage awards to victim’s survivors in a § 1983 claim even when the violation caused the victim’s death. Thus, § 377.34’s prohibition on pre-death pain and suffering damages undermines the primary goal and deterrent purpose of § 1983. Accordingly, the Ninth Circuit reversed. (Sam Barfoot)

Fields v. City of Tulsa, 753 F.3d 1000 (10th Cir. 2014)

A police department does not violate a police officer’s civil rights by ordering that officer to attend, or to designate another to attend in his stead, a religiously- hosted community event as long as the officer is not personally forced to attend, the officer is not forced to religiously participate, and the event could not be construed as the police department’s endorsement of that religion. The Tulsa Police Department (“Police Department”) spent several months protecting the Islamic Society, which in turn showed its appreciation by hosting a meet and greet for the officers. The Police Department did not receive enough volunteers to adequately represent it at the event, so the administration ordered two officers and one supervisor from each shift, as designated by each shift superior officer, to attend. Captain Fields (“Captain”), a Police Department officer and shift supervisor, told his superior officers that, even if directly ordered to do so, he would neither attend the event, nor would he order any of his subordinates to do so; he expressed a religious objection. The Captain was subsequently punished for his direct insubordination. He filed a 42 U.S.C. § 1983 civil rights claim against the City of Tulsa, the Police Department, and his superior officers. The United States District Court for the Northern District of Oklahoma denied the Captain’s motion for summary judgment and his motion to amend his petition to add other civil rights claims. On appeal, the Captain argued that the Police Department violated his free exercise of religion because the order mandated that he attend the Islamic Society’s event. The United States Court of Appeals for the Tenth Circuit noted that, in order to succeed on a free exercise of religion claim, the complaining party must show that the government burdened the exercise of his religious beliefs or practices. The Tenth Circuit ruled that, because the Captain could have ordered another person to go in his stead, no reasonable person could construe the order as personally burdening the exercise of his beliefs. The Captain also claimed that the Police Department violated the Establishment Clause of the First Amendment of the United States Constitution because the attendance order, in combination with the religious nature of the event, constituted the Police Department’s official endorsement of Islam. To prevail on this claim, the Tenth Circuit looked to see if the Captain showed that the Police Department either actually supported Islam through its actions or that its actions, regardless of actual motive, conveyed a clear message of Islamic support. The Police Department contended, and the court agreed, that the event was part of a long history of community events that the Police Department’s officers attended (many of which were religiously hosted) and the event was in appreciation of the department’s work; therefore, it was unreasonable to conclude that the order was an endorsement of Islam. The Captain also raised the issue that his superior officers violated his right to freedom of association by punishing him, thus compelling an association contrary to his religion. The Tenth Circuit recognized that the freedom of association clearly presupposes a freedom not to associate. Accordingly, the court ruled that the Captain was never forced to associate with the Islamic Society because the order of attendance did not require the Captain to personally attend the event. The Captain’s final summarily dismissed claim was one of equal protection, but the Captain failed to distinguish this claim from his free exercise claim, thus it was similarly denied. The Captain also appealed the trial court’s decision denying his motion for leave to amend his claim and add claims under the Oklahoma Religious Freedom Act and under the freedom of speech clause in the First Amendment. The Captain’s claim under the Oklahoma Religious Freedom Act solely depended on his free exercise claim and the associated argument. His appellate argument on this point stated “for the reasons that Defendants violated Plaintiff’s free exercise right under the First Amendment, Defendants similarly violated Plaintiff’s rights protected by ORFA.” The Tenth Circuit stated that, because it denied the Captain’s free exercise claim, his claim under the Oklahoma Religious Freedom Act was also denied. After balancing the relevant interests, the Tenth Circuit further determined that allowing a free speech retaliation claim would have been an exercise in futility. The court noted that as the Captain’s free exercise claims were unsupported, his interest similarly carried little weight. In contrast, the Police Department’s interest in regulating the speech was convincing. The court determined that the Police Department had a strong interest in maintaining public confidence as well as maintaining the appearance of impartiality on behalf of all people. The Tenth Circuit accordingly affirmed each of the trial court’s decisions on summary judgment, as well as the denial of the Captain’s motion to amend his complaint. (Will Stiles)

Frudden v. Pilling, 742 F.3d 1199 (9th Cir. 2014)

A public elementary school’s mandatory uniform policy requiring students to wear the motto, “Tomorrow’s Leaders,” on their shirts compels speech. Additionally, the public school’s exemption for uniforms “of nationally recognized youth organizations” is content-based. Therefore, both implicate First Amendment protections and should be reviewed under strict scrutiny. The appellants, Mary and Jon Frudden, are parents of a third-grade student and a fifth-grade student at the Roy Gomm Elementary School in Reno, Nevada. The respondent, KayAnn Pilling, is the school’s principal and represents the Roy Gomm Elementary School. The parents originally brought suit in the United States District Court for the District of Nevada after the school instituted a mandatory uniform policy requiring students to wear a uniform shirt with the message, “Tomorrow’s Leaders,” printed above the school logo. The policy had an exception that allowed students to wear “a uniform of a nationally recognized youth organization such as Boy Scouts or Girl Scouts on regular meeting days.” However, the Frudden children were forced to change clothes when they attended school wearing their American Youth Soccer Organization uniforms even though the AYSO is a nationally recognized youth organization. The parents argued that the school’s uniforms violated the students’ First Amendment rights because the words written on the uniform shirt compelled speech. They also argued that the exception violated the students’ rights because it gave preference to certain uniforms over others. The school argued that because the students could abide by the uniform policy and freely disclaim the school motto, their rights were not violated. In reaching its decision, the United States Court of Appeals for the Ninth Circuit used the test set forth in Jacobs v. Clark Cty. Sch. Dist., 526 F.3d 419 (9th Cir. 2008), and considered “whether the individual is forced to be an instrument for fostering public adherence to an ideological point of view.” The court agreed with the parents and distinguished the school’s uniform with the printed motto from the mandatory uniform in Jacobs, which consisted of plaincolored tops and bottoms holding that the school’s motto compelled speech. Additionally, the court held that the availability of means to disclaim the motto was irrelevant. Further, the court determined that the case at bar was not meaningfully distinguishable from a case in which the Supreme Court of the United States struck down a New Hampshire statute under the First Amendment because the statute required motorists to display license plates printed with the state motto, “Live Free or Die.” Wooley v. Maynard, 430 U.S. 705 (1977). Like the New Hampshire motorists, the students were forced to be an instrument for conveying a motto. Finally, the court held that the school’s exemption provision was content-based because it favored the uniforms of Boy Scouts and Girl Scouts over other types of uniforms and favored “nationally recognized” youth organization uniforms over local or regional youth organization uniforms. Both the school’s uniform policy and the exemption provision implicate the protections of the First Amendment and are subject to strict scrutiny review. However, because the district court granted the school’s motion to dismiss, the record was not adequately developed for this court to determine whether the motto was “a narrowly tailored means of serving a compelling state interest.” Therefore, the court reversed the dismissal and remanded the case for further proceedings consistent with its holding. (Rachel Sterbenz)

Bronx Household of Faith v. Bd. of Educ. of the City of New York, 750 F.3d 184 (2d Cir. 2014)

A city regulation that refuses to grant subsidized facilities for religious worship services is not a violation of the Free Exercise Clause because: (1) the Clause does not require the government to provide faith-based organizations with subsidized facilities in which they can exercise their right to religion, (2) the regulation does not unconstitutionally burden the free exercise of religion, and (3) the government had reasonable, good faith concerns that allowing religious worship services in its facilities would violate the Establishment Clause by leading to a perception of endorsement of religious activities. Bronx Household of Faith, a religious organization, sued the Board of Education of the City of New York (the Board) after it was denied a subsidized, extended use permit to conduct religious worship services in school facilities. In order to use school facilities outside of regular school hours without paying rent, organizations must apply for a permit and specify their intended use. The Board had previously adopted a regulation to govern applications for extended use that prohibited granting permits for the purpose of holding religious worship services. After the Board denied the religious organization’s application in accordance with the regulation, the religious organization sued claiming that the Board’s regulation was unconstitutional. In finding that the Board’s regulation was constitutional, the United States Court of Appeals for the Second Circuit stated that the Free Exercise Clause does not require that the government “finance a particular institution’s exercise of religion” but instead merely forbids the government from “placing obstacles in the path of a person’s exercise of religion.” Moreover, the Board was not discriminating against religion in general, against any particular religion, or against religious practices. Instead, the Board treated all religions the same. The court distinguished this case from Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), where the Supreme Court found that the City’s ordinance forbidding the Church from holding services was motivated by the City’s disapproval of the Santeria religion. The court stated that, in this case, there is no evidence that the Board harbored any disapproval or animus towards religion or religious practices. Instead, its sole reason for adopting the regulation was a good faith fear that it risked running afoul of the Establishment Clause. Moreover, the Supreme Court previously held that if there are Establishment Clause concerns, a governmental decision to exclude religious practices from subsidies is not a violation of the Free Exercise Clause. Locke v. Davey, 540 U.S. 712 (2004). Finally, in reaching its decision that the Board’s fear of violating the Establishment Clause justified its regulation, the court expressly rejected the religious organization’s three major arguments. The court found that (1) the Board was not discriminating against certain religions that happen to utilize worship services because it “is not compelled to permit a practice just because the exclusion may affect one religion that practices the excluded conduct, while not affecting those that do not;” (2) if the Board has a legitimate concern that it may violate the Establishment Clause, it does not have to decide that the excluded activities would actually violate the Clause — all that is required is a “reasonable, good faith judgment that it runs a substantial risk of incurring a violation;” and (3) the Board’s regulation does not require that the Board become “excessively entangled in religion” in deciding what is a religious worship service because the Board relies on the applicant’s own characterization of its activities. Furthermore, the Establishment Clause permits government officials to examine the conduct to decide whether it is, in fact, religious. (Mara Pollets)

Dariano v. Morgan Hill Unified Sch. Dist., 745 F.3d 354 (9th Cir. 2014)

A school district’s decision requiring students wearing American flag shirts to change or leave school does not violate a student’s rights under the First Amendment of the United States Constitution when: (1) the school’s actions are tailored to avoid violence and focus on student safety; (2) there is no evidence that other students in risk of danger are treated differently; and (3) the school’s dress code is within permissible standards and not unconstitutionally vague. The appellants, three high school students ("Students"), were asked to remove their American flag shirts or leave school during a school-sponsored Cinco de Mayo celebration. The appellees were the Morgan Hill Unified School District (“School District”) and various school officials, including the Assistant Principal Miguel Rodriguez (“Assistant Principal”), who supported the School District’s actions and the underlying dress code policy. The Students challenged the School District’s dress code policy under 42 U.S.C. § 1983 and the state constitution claiming the policy violated the Students’ rights to freedom of expression, equal protection, and due process under the First and Fourteenth Amendments. The United States District Court for the Northern District of California granted summary judgment for the Assistant Principal and dismissed the claims against the School District on the grounds of sovereign immunity. On appeal, the United States Court of Appeals for the Ninth Circuit first determined the Assistant Principal did not violate the Students’ freedom of expression because the School District’s actions were narrowly tailored to protect student safety, the Students were not formally punished, and the School District did not create a blanket policy banning all American flag apparel. In reaching this conclusion, the court applied the rules in Tinker v. Des Moines Indep. Cmty. Sch. Dist., which permit a school to limit a student’s expression when the student’s expression might disrupt the school environment, interfere with schoolwork, or place student safety at risk. 393 U.S. 503, 508 (1969). The Ninth Circuit found a history of violence at the school and determined the American flag shirts created a disruption to the school environment and a risk to student safety, thereby permitting the Assistant Principal to ask the Students wearing the American flag shirts to change or leave school for the day. Under the Students’ equal protection claim, the Students argued they were treated differently because students wearing shirts displaying the Mexican flag were not asked to remove their shirts or leave school. The court again applied Tinker to find that a school is not required to prohibit all controversial apparel, only apparel that is necessary to avoid “substantial interference with schoolwork.” Tinker, 393 U.S. at 510-11. The court determined the Assistant Principal did not violate the Students’ equal protection rights because there was no evidence that students who posed a similar risk of violence were treated differently. Finally, the Students argued the School District’s dress code was unconstitutionally vague and therefore violated the Students’ due process rights. The court applied the standards outlined in Hardwick ex rel. Hardwick v. Heyward, which allow a school to prohibit certain offensive or disruptive clothing if the policy is “viewpoint neutral.” 711 F.3d 426, 441, 444 (4th Cir. 2013). The court found the School District’s dress code adhered to the standards in both Hardwick and Tinker. The School District’s dress code met the viewpoint neutral standards in Hardwick because it prohibited clothing that distracted others, interfered with instructional programs, and was otherwise disruptive. The School District’s dress code also met the standards in Tinker because the dress code focused on student safety and limiting classroom disruption. (Elaine M. Smith)

Montenegro v. N.H. Div. of Motor Vehicles, 93 A.3d 290 (N.H. 2014)

A New Hampshire regulation restricting vanity registration plates that are “offensive to good taste” violates motor vehicle owners’ free speech rights because it is unconstitutionally vague and encourages arbitrary and discriminatory enforcement. The plaintiff, David Montenegro, is a New Hampshire motor vehicle owner. The defendant is New Hampshire Attorney General Michael A. Delaney, representing the New Hampshire Division of Motor Vehicles (DMV) in support of the state law. The vehicle owner challenged a law prohibiting the ownership of any vanity license plate that a “reasonable person would find offensive to good taste.” N.H. ADMIN. RULES, Saf-C 514.61(c)(3). If the vanity plate is offensive to good taste, the department may deny the plate application. The motor vehicle owner’s application was denied because DMV officials found its text, “COPSLIE,” to be “insulting” and offensive to good taste. The motor vehicle owner argued that the regulation was a violation of his free speech rights under the State and Federal Constitutions because it is unconstitutionally vague and overbroad. The DMV argued both that its reason for denying the application conformed to the regulation’s language and that the concept of vagueness was inapplicable because the disputed language is a standard by which “state employees are to discharge their duties” rather than a prohibition on the vehicle owner’s conduct. The Supreme Court of New Hampshire began by noting that the vagueness doctrine must be applied meticulously when First Amendment concerns are at issue. Protecting free speech is “essential to the security of freedom in a state” and ought to be “inviolably preserved.” N.H. CONST. pt. I, art. 22. In order to preserve this right, the court explained that laws must provide “explicit standards for those who apply them.” The phrase in question in this case, “offensive to good taste,” is not clearly defined in the language of the regulation. The court, therefore, looked to the plain and ordinary meaning of the phrase, and after applying the “reasonable person” standard, concluded that the regulation failed to provide explicit standards to DMV officials. This lack of clarity renders the regulation “so loosely constrained that it authorizes or even encourages arbitrary and discriminatory enforcement,” making it unconstitutionally vague and violating the vehicle owner’s free speech rights under the state’s constitution. In light of this conclusion, the court did not address the owner’s other, federal constitutional arguments. (Jacob Donald Cain)

Cowan v. Cleveland Sch. Dist., 748 F.3d 233 (5th Cir. 2014)

A district court’s decision allowing students to choose what school they will attend to help desegregation efforts in a historically segregated school is remanded because: (1) the district court failed to explain its finding that the plan was the most appropriate method of desegregation; and (2) the plan lacked any explanation that the plan was likely to work. The appellant was the United States, acting as an intervenor for the original plaintiff, Diane Cowen (“Cowen”). The appellee was the Cleveland School District (“School District”). The School District was one of several Mississippi school districts that practiced racebased de jure segregation in education, which required African- American and white students to attended segregated schools. Cowen sued in 1965 to enjoin the School District from maintaining segregated schools and the United States District Court for the Northern District of Mississippi ordered the School District to desegregate its schools. In response to this order by the district court, the School District implemented a plan that was intended to follow the order. However, after a federal mandate for desegregation of schools was implemented, the School District implemented the freedom of choice plan (“Plan”), which allowed students to choose what school they would attend. The Plan created east and west zones divided by railroad track. All students living west of the tracks attended one junior high and high school, while all students living east of the tracks attended a different junior high and high school. The Plan also included a transfer policy that required the School District to encourage and allow students in a school where they were in the racial majority to transfer to one where they would be in the racial minority. The Plan was meant to serve as the School District’s compliance with desegregation requirements and was subsequently approved by the district court. However, in early 2013, the United States appealed the district court’s approval of the Plan, arguing that it was inadequate and not justified as the most appropriate remedy for desegregation. On appeal, the United States Court of Appeals for the Fifth Circuit determined that the School District had the duty to not only eliminate express racial segregation in its schools where de jure segregation existed, but such school districts must also eliminate the effects of such segregation. Green v. Cnty. Sch. Bd. of New Kent Cnty., Va., 391 U.S. 430, 436 (1968). The Fifth Circuit ruled that the Plan was not necessarily an unconstitutional and unreasonable method of eliminating state-sponsored segregation, but found that retention of all-black schools within a dual system is unacceptable when there are reasonable alternatives that can be used. According to the court, the retention of single-race schools is especially unacceptable when a school district is small and was never desegregated in accordance with federal law, which was the case here. The court determined the district court and the School District failed to provide an explanation that such the Plan would work. Because the Fifth Circuit found deficiencies in the Plan that were not addressed by the district court, the case was remanded. Further, the Fifth Circuit held that while maintaining single race schools can be permissible in a limited context, the School District must justify that remedy where history suggests that it will not work to desegregate a school district. (Linda Adeniji)

Jackson v. City and Cnty. of San Francisco, 746 F.3d 953 (9th Cir. 2014)

A San Francisco Police Code provision requiring that handguns in residences be stored in a locked container or disabled by a trigger lock when not carried by a person over 18 does not destroy citizens’ Second Amendment right to bear arms. In addition, a second San Francisco Police Code provision prohibiting the sale of ammunition not used for sport that expands upon impact does not destroy citizens’ Second Amendment right to bear arms. Both of these ordinances were upheld because, while they burden conduct protected by the Second Amendment, the government’s stated objective for each is significant, substantial, or important and there is a reasonable relationship between the challenged ordinances and the asserted objectives. The plaintiffs — citizens of San Francisco, the National Rifle Association, and the San Francisco Veteran Police Officers Association — are handgun owners or represent handgun owners who sought preliminary injunctions of both ordinances. The defendant is the City and County of San Francisco. The handgun owners asserted that both ordinances are unconstitutional because they infringe upon the handgun owners’ Second Amendment right to bear arms. Countering the government’s claim that living with other people increases the risk of unauthorized access to handguns, the handgun owners argued that the first ordinance is over-inclusive because not all gun owners live with other people. Therefore, this risk is absent. The handgun owners also asserted that the second ordinance infringes their right to bear arms under the Second Amendment because hollow-point ammunition is preferred to fully jacketed ammunition for use in self-defense. Hollow-point ammunition “[is] less likely to over penetrate or ricochet.” Jackson v. San Francisco, 746 F.2d 953 (8th Ct. App. 2014). In response, the government stated that the handgun owners cannot bring a facial challenge to the first ordinance when they concede that there are certain situations where handguns should be locked in storage. As to the second ordinance, the government argued that the handgun owners lack standing because the handgun owners have not suffered an injury in fact — hollow-point ammunition is still available for purchase outside of San Francisco. In reaching its decision, the United States Court of Appeals for the Ninth Circuit used a two-step test to determine whether a statute violates the Second Amendment. For the first step, the court analyzes whether the Second Amendment historically protects the conduct restricted by the ordinance or, instead, the conduct falls within an area specifically unprotected by the Second Amendment. If a statute is within the scope of the Second Amendment, the court must determine which level of scrutiny to apply in the second step. The court examines “how close the law comes to the core of the Second Amendment” and “the severity of the law’s burden on the right” to determine the appropriate level of scrutiny. The Ninth Circuit first applied the test to the ordinance regarding storage of handguns in residences. The first ordinance was found to be within the scope of the Second Amendment because it regulates the storage of handguns, which is not an area historically excluded from Second Amendment protections. Requiring handguns to be stored in a locked container or disabled by a trigger lock inhibits an individual’s ability to use a handgun in his or her residence for selfdefense; therefore, the ordinance was found to affect the core of the Second Amendment’s purpose. Because the ordinance regulated the manner in which Second Amendment rights can be exercised but did not impose a complete ban on the use of handguns–an issue that is subject to strict scrutiny–the first ordinance was found to be subject to intermediate scrutiny. Intermediate scrutiny requires “the government’s stated objective to be significant, substantial, or important” and for there to be a reasonable relationship between the challenged regulation and the asserted objective. Id. at 965. The government’s stated objective in enacting an ordinance requiring handguns in residences to be stored in a locked container or disabled by a trigger lock is to reduce gun-related injuries and deaths. This interest is reasonably related to an ordinance that makes it slightly more difficult to access handguns in a residence: if handguns are more difficult to access in a residence, then it is less likely that individuals in the residence will suffer gun-related injuries or death. Because the first ordinance survives the two-prong test to determine whether a law violates the Second Amendment and satisfies intermediate scrutiny, it is constitutional. The court then applied the two-step test to the ordinance prohibiting the sale of certain ammunition. This ordinance falls within the scope of the Second Amendment because ammunition is required in order to use guns, the use of which is the core right of the Second Amendment. Banning the sale of hollow-point ammunition only indirectly burdens the ability of citizens to exercise their Second Amendment rights because other forms of ammunition are still available. In addition, this type of ammunition can still be used in San Francisco; it simply cannot be purchased there. Because this ordinance only slightly affects the manner in which an individual can exercise his or her Second Amendment rights, it is subject to intermediate scrutiny like the first ordinance. The government’s interest in enacting this ordinance was to decrease the number of fatal wounds from gunshots involving ammunition that expands on impact. This interest is reasonably related to a prohibition on selling hollow-point ammunition because, if this ammunition is not readily available, it is less likely to be used. Because the second ordinance survives the two-prong test to determine whether a law violates the Second Amendment and satisfies intermediate scrutiny, it is constitutional. (Madison Peak)

Wilkins v. Daniels, 744 F.3d 409 (6th Cir. 2014)

An Ohio statute requiring the owner of a dangerous wild animal or restricted snake to obtain a permit and to microchip the animal does not violate owner’s First Amendment rights to freedom of association and speech or effect a taking without just compensation because: (1) possessors of wild animals are not compelled to join the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA) and (2) Ohio is permitted to pass regulations for the general welfare of its citizens. The plaintiffs are owners of dangerous wild animals or restricted snakes regulated by the Ohio Dangerous Wild Animals and Restricted Snakes Act, OHIO REV. CODE ANN. §§ 935.01-935.99 (West 2014). The defendants are the Director of the Ohio Department of Agriculture, named in his official capacity, and the Ohio Department of Agriculture. The owners challenged a law requiring those who own a dangerous wild animal or restricted snake to obtain a permit requiring the owner to implant a microchip under the skin of the animal; owners are not reimbursed for implantation of the microchip. Id. All persons who possess a dangerous wild animal or restricted snake, as defined in sections 935.91(C) and (L), are also required to register with the Ohio Department of Agriculture. The Act provides fourteen exemptions allowing those eligible for an exemption not to register their animal with the Ohio Department of Agriculture. The owners argued that the law violated their First Amendment rights of freedom of association and freedom of speech. First, the owners argued that the caging requirements set forth by the state were significantly more financially burdensome than the AZA’s and ZAA’s requirements. Second, the owners asserted that the AZA and ZAA were their political and ideological rivals. If the owners joined the AZA or ZAA, then their speech would be substituted by the AZA or ZAA. Therefore, the owners’ only feasible option to conform to the requirements of the act was to join the AZA or ZAA. The owners also argued that the microchipping requirement of the Act violated the Takings Clause of the Fifth Amendment because they are not reimbursed for the cost of implanting the chip. The United States Court of Appeals for the Sixth Circuit determined that the Act did not compel the owners to join either the AZA or ZAA. The court reached this conclusion citing the plain language of the Act, finding that the owners had the ability to fall within thirteen other exemptions of the Act. Their unwillingness to conform to a different exemption did not mean that the Act compelled the owners to join the AZA or ZAA. The court further stated that the owners’ subjective belief that they were compelled to join the AZA or ZAA did not fall within the protections guaranteed by the First Amendment. The court determined that the requirement of microchipping a dangerous wild animal or restricted snake was not a taking of property without just compensation. The court explained that the Takings Clause does not prohibit a state’s ability to pass laws that benefit the general welfare of its citizens and that every physical invasion does not give rise to a taking of property as defined in the Takings Clause. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). For a government regulation to amount to a taking, the government must physically take possession of property or authorize the occupation of property by a third party. The microchipping requirement was not a taking but rather a regulation of the owners’ property. The court analogized the requirement of microchipping with the requirement of landlords to comply with building codes, such as handrails in an apartment building. Furthermore, the court reasoned that after the owners implant microchips in their animals, they still retain possession of their animals. (John Carroll)

Kagan v. City of New Orleans, 753 F.3d 560 (5th Cir. 2014)

A New Orleans law requiring those who conduct tours for hire in the city to have a tour guide license does not violate the tour guides’ First Amendment free speech rights because New Orleans is a touristheavy spot and the city seeks to promote and protect its visitors by ensuring that the licensees know the city without affecting the content of their speech. The plaintiffs are four tour guides who object to the licensing requirements. The defendant is the City of New Orleans. The tour guides challenged a law requiring those who conduct tours for hire to “the [c]ity’s points of interest and/ or historic buildings, parks or sites, for the purpose of explaining, describing or generally relating to the facts of importance thereto” to have a tour guide license. The licensee must pass an examination that tests his or her knowledge regarding the historical, cultural, and sociological developments in the city. Furthermore, the licensee must: (1) pass a drug test, (2) not be convicted of a felony within five years, and (3) pay a $50 fee when he or she first applies and a $20 renewal fee after two years. The tour guides argued that the law was a violation of their First Amendment right to free speech because it restricted their ability to say what they wanted. They further argued that the law must be reviewed using strict scrutiny, which would require the government to have “narrowly tailored the content restriction to a compelling interest without other means to do so.” The United States Court of Appeals for the Fifth Circuit denied the plaintiffs’ arguments, holding that the New Orleans law did not regulate what the tour guides say and therefore served the government’s interest without infringing upon the tour guides’ First Amendment rights. The court reasoned that the law is not a violation of the tours guides’ free speech rights because “what they say is not regulated or affected by New Orleans.” The court rejected the strict scrutiny argument based on the Supreme Court’s holding in Ward v. Rock Against Racism, 491 U.S. 781 (1989), where the Court held that a regulation is content-neutral as long as the “regulation is justified without reference to content or speech.” This regulation was reviewed with intermediate scrutiny and satisfied the narrow tailoring requirement because it promoted a substantial interest that would not be achieved as effectively without the regulation. Here, the court upheld the constitutionality of the New Orleans licensing scheme for tour guides because it promoted the government’s interest in having well-informed tour guides without regulating the content of their speech. (Arooj Zafar)

Annex Books, Inc. v. City of Indianapolis, 740 F.3d 1136 (7th Cir. 2014)

An ordinance requiring adult bookstores, but not other businesses, to close between midnight and 10 a.m. every day and all day Sunday is unconstitutional because it is so restrictive of one narrow class of speech as to indicate that it is content-based. The plaintiffs, Annex Books, New Flicks, Lafayette Video & News, Keystone Video, and Southern Nights (“bookstores”), were owners of adult entertainment establishments in Indianapolis. The bookstores challenged the constitutionality of a city ordinance requiring adult bookstores to close between midnight and 10 a.m. every day, and all day on Sundays. Other establishments in the city were not limited by these restrictions. The city argued that the ordinance contributed to the prevention of armed robberies at or near adult bookstores during the restricted hours. Furthermore, while the city conceded that the ordinance was restrictive, the city argued that there is no loss of free speech because “anyone who wants any magazine, book, or movie can get it, eventually — and some gain in the reduction of armed robbery.” 740 F.3d at 1138. The United States Court of Appeals for the Seventh Circuit, however, disagreed, finding the decrease in armed robbery too insignificant, and that robberies at adult bookstores were no more frequent than robberies at other establishments not subject to the ordinance’s restrictions. In reaching this conclusion, the court relied on the United States Supreme Court precedent set forth in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). In Alameda Books, Justice Kennedy stated that “a city may not regulate the secondary effects of speech by suppressing the speech itself.” 535 U.S. at 427. Furthermore, the court struck down the city’s rationale by generating a hypothetical in which the city prohibited the distribution of the Sunday newspaper. Such a scenario, the court reasoned, would (1) reduce traffic accidents caused by trucks delivering papers, (2) reduce the number of robberies committed against newspaper deliverers, and (3) better benefit the environment by reducing the paper’s carbon footprint. Concluding that both the ordinance and the hypothetical were in violation of the First Amendment, the court found that the underlying reason for the ordinance was the content of the material. Moreover, the court found no existing precedent to support a governmental body halting distribution of books simply because the content is objectionable unless the content is obscene. The Seventh Circuit had previously determined that pornographic material that is not obscene cannot be suppressed. American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985). Thus, the court reversed the district court’s decision and remanded with instructions against the enforcement of the ordinance. (Mahdi Abdelaziz)

Biery v. United States, 753 F.3d 1279 (Fed. Cir. 2014)

Certain conveyances of land abutting a 2.88 mile stretch of railroad are not compensable takings under the Fifth Amendment of the United States Constitution because the language in various deeds conveying real property interests in portions of the land in question may or may not convey fee simple interests in those portions of the land. Three appellants, Biery, Chalfant and American Packing Corporation (“Landowners”), all owned land abutting a rail corridor and claimed the language in their deeds was not sufficient to transfer a fee simple interest to a railroad. The defendant, the United States Department of Justice (“United States”), contended that the Landowners did not hold a compensable interest sufficient for a takings claim under the Fifth Amendment. The United States Court of Federal Claims found that, since none of the Landowners possessed a fee simple property interest, the Landowners’ land could not be subject to a takings claim under the Fifth Amendment and granted summary judgment in favor of the United States. On appeal, the Landowners argued that, under Kansas law, railroads do not acquire fee simple title to narrow strips of land taken as rights-ofway. Harvest Queen Mill & Elevator Co. v. Sanders, 370 P.2d 419, 423 (Kan. 1962). The Landowners also contended that using words such as “over and across” and “right-of-way” refer to land use restrictions and are indicative of the actual type of conveyance intended by the grantor. The Landowners believed they held fee simple title to land that had a compensable property interest for purposes of a takings claim. The United States argued that if the deeds did not contain any restrictions or other limitations, then the deeds may have conveyed more than an easement or right-of-way, thus conveying fee simple ownership interest to the railroad. First, the United States Court of Appeals for the Federal Circuit ruled the Chalfant deed contained no language indicating that the parties intended to limit the railroad’s interest to a right-of-way. The court ruled that a deed containing no use restrictions and other language limiting or otherwise restricting a conveyance of real property may convey more than a right-of-way usage and conveyed the entire fee simple property interest held by the grantor at that time. Furthermore, the words “over and across” were simply used to describe that the tracks ran over and across the land and did not relate to a land use restriction. Summary judgment was affirmed on Chalfant’s claim because there was no compensable property interest. Regarding the Biery deed, the court noted it recited the words “fee simple” and contained no use restrictions or reversionary clause. But, Biery’s title described the track of land in the deed to the railroad in accordance with a previous condemnation proceeding. The court ruled that, if the deed describes a track of land that relates to a previous condemnation proceeding, that description counts as limiting language enough to characterize the conveyance only as an easement. The court found this descriptive language conveyed only a “right-of-way” or easement to the railroad, even though the deed contained fee simple language. The court reversed summary judgment and remanded the case back to the Federal Claims Court to determine the merits of the Biery deed. Finally,the American Packing Corporation deed listed a series of lots that matched the description of an earlier condemnation proceeding. The deed also described the conveyance as a right-of-way, which was later confirmed in a proceeding conveyance as referencing an existing right-of-way held by the railroad. The court ruled that the Federal Claims Court failed to properly apply Kansas law in that Kansas law is not so restrictive that the term “right-of-way” must be used in a way that expressly restricts the use of the land. Since the deed referred to an earlier condemnation proceeding, like the Biery deed, and described the conveyance as a right-of-way, the court reversed summary judgment and remanded the case back to the Federal Claims Court to determine the merits of the American Packing Corporations deed. Ultimately, the court ruled that just because the deed states it is a “right-ofway” deed, it does not mean that the deed can only convey an easement. The language of the deed determines whether it conveys more. However, if the deed describes a track of land that relates to a previous condemnation proceeding, that description counts as limiting language enough to characterize the conveyance only as an easement. (Evan Halloran)

Kanerva v. Weems, 13 N.E.3d 1228 (Ill. 2014)

A pension protection clause in a state constitution is broad enough to prohibit the state from reducing health and life insurance subsidies for public pension system retirees because the subsidy amounts are calculated by the number of years the employee contributed to a public employee pension plan. The appellants, retirees of the public pension system (“Retirees”), brought four class action suits against defendant Malcom Weems in his role as Director of the Department of Central Management Services (“State”). The Retirees alleged that an Illinois law, Public Act 97-695 (“Act”), violated the state constitution because the Act would allow the State to reduce insurance subsidies in violation of the pension clause. The Act modified certain provisions of the State Employees Group Insurance Act of 1971 (“Group Insurance Act”), replacing the provision that mandated a minimum state contribution to the Retirees’ health and life insurance premium with a new provision allowing the state to recalculate the state contribution percentage annually. This change would have allowed the State to eliminate the subsidy entirely. The circuit court granted the State’s motion to dismiss and the Retirees appealed directly to the state’s supreme court. Before the Act, the state was required to subsidize at a percentage until the retiree reached twenty years of pension contribution, at which time the state would pay one-hundred percent of the premiums. The Retirees argued that the pension plan clause in the state constitution protected the subsidy and so the contribution percentage could not be diminished or impaired. The State argued that, although years of participation in a public pension plan determined the percentage of the subsidy, the subsidy itself was not a pension benefit and could be reduced by statute. Noting that the issue is one of first impression, the Illinois Supreme Court wrote that the language of the pension plan clause was based on New York’s pension protection clause. The court first examined whether the health insurance subsidy was a benefit of public pension system membership and thus subject to contractual enforcement. By its plain and ordinary meaning, the court held that the clause was broad enough to include the subsidy of insurance premiums. Holding that the New York decision over twenty years ago in Lippman v. Bd. of Educ. of the Sewanhaka Cent. High Sch. Dist., 487 N.E.2d 897 (N.Y. 1985), was distinguishable, the court agreed with the more recent decision in Everson v. State of Hawai’i, 228 P.3d 282 (H.I. 2010), because the Retiree’s eligibility for the subsidy was determined by participation in a public pension plan. Additionally, the Illinois court held that the volatility of health insurance prices was of no legal consequence in determining whether the benefit should be afforded protection under the pension protection clause. The court held in favor of the Retirees, noting that the constitutional provision must be construed broadly in favor of the Retirees as nothing in the language or legislative history of the pension protection clause indicated that “pension benefits” specifically excluded insurance premium subsidies. Justice Burke dissented, arguing that the method for determining the subsidy percentage did not fundamentally transform the subsidies into pension benefits. (Abigail E. Clark)