First, the court must determine whether the restriction burdens conduct protected by the Second Amendment. If so, the court must determine, and apply, the appropriate level of scrutiny. The court stated that in order to determine whether the gun control legislation infringes upon conduct protected by the Second Amendment, it must be shown that the weapons at issue are (a) “in common use” and (b) “typically possessed by law-abiding citizens for lawful purposes.” Here, the court determined that the assault weapons and large capacity magazines prohibited by the gun control legislation are “in common use” because the record establishes that Americans own millions of each. While these high-capacity magazines and assault weapons are not as prevalent as the handguns at issue in Heller, nothing in that case, nor any subsequent Supreme Court case, limits that holding to handguns. The court also concluded that the weapons and magazines at issue are “typically possessed by law-abiding citizens for lawful purposes.” Assuming for the sake of argument, the court found that these “commonly used” weapons and magazines are also “typically possessed by law-abiding citizens for lawful purposes.” Therefore, under the first level of inquiry, the court concluded that the gun control legislation restricted conduct protected by the Second Amendment. Moving to the second step, the court must determine the appropriate level of scrutiny to apply. In making this determination, the court found that gun control legislation did not effectively disarm individuals or substantially affect their ability to defend them- selves. The Second Circuit explained that while the burden imposed by the gun control legislation was real, it did not rise to the level of “severe.” Therefore, the court determined that intermediate, rather than strict, scrutiny was appropriate. The court stated that the key question for intermediate scrutiny analysis is whether the challenged statutes are “substantially related” to the government’s interest in crime prevention and public safety. Concerning the statutes prohibition on assault weapons, the court found the gun control legislation to be substantially related to crime prevention and public safety. The record showed that “assault weapons” are disproportionately used to kill law enforcement officers. Furthermore, the military combat features associated with assault weapons result in an increased capacity for lethality (as compared with other weapons like handguns), leading to more serious wounds in more victims. Additionally, the court supported its conclusion by pointing to evidence provided by the States, which suggested that the gun control legislation will ultimately reduce the circulation of assault weapons among criminals. With all of this evidence in mind, the court concluded that the gun control legislation’s prohibition on the possession of semi-automatic assault weapons and large capacity magazines passed intermediate scrutiny. In making this determination, the court cited the disproportionate use of large-capacity magazines in mass shootings, such as Sandy Hook. The court then turned to the Gun Supporters’ second argument, vagueness. The court dismissed the Gun Supporters’ vague- ness challenge to each provision of the New York and Connecticut laws. The Second Circuit explained that vagueness doctrine requires only that the statute provide “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” United States v. Farhane, 634 F.3d 127, 139 (2d Cir. 2011). The challenged provisions of the gun control statutes were specific enough to meet this standard. Therefore, the Second Circuit con-luded that even where gun control legislation restricts conduct prohibited by the Second Amendment, it will be constitutional when the gun control legislation is substantially related to crime prevention and public safety. (Timothy Bowman)
Heller v. Dist. of Columbia
801 F.3d 264 (D.C. Cir. 2015). Firearm registration regulations, such as re-registration, knowledge of the law exams, physical presence of the weapon, and time period limitations, will fail to promote a substantial government interest, such as public safety, when sufficient evidence is lacking with respect to the close fit between the interest and the registration regulation. Dick Anthony Heller and other gun owners (“Gun Owners”) appeal the district court’s order granting summary judgment in favor of the District of Columbia (“District”), challenging the constitutionality of long-gun registration regulations under the Firearm Amendment Act of 2012, D.C. Law 19-170. The constitutionality of the registration regulation depends on: (1) whether the provision impinges on a right protected by the Second Amendment; and (2) if the provision passes muster under intermediate scrutiny by showing that it “promotes a substantial governmental interest that would be achieved less effectively absent the regulation.” Heller v. Dist. of Columbia, 670 F.3d at 1252-53 (D.C. Cir. 2011). The harm must be prevented by the regulation in a direct and immediate way. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 662, 662-64 (1994). Sufficient evidence must exist to reasonably infer the harm to be prevented by the regulation. Turner Broad. Sys. V. FCC, 510 U.S. 180, 185 (1997). Gun Owners contested whether the regulations fit closely with the public safety interest and whether the District provided sufficient evidence reasonably concluding a fit between the interest and the regulation. The court determined there was sufficient evidence of close fit between public safety and several of the registration regulations, but that evidence lacked for the others. The court determined, for example, that requiring a gun registrant to be finger- printed and photographed, pay reasonable fees, and pass a firearm safety test all had a close fit in promoting a public safety interest and therefore did not violate the Second Amendment. In contrast, the court noted the District’s lack of substantial evidence when determining the constitutionality of several other regulations. First, the District argued that requiring an individual to re-register a weapon every three years would prevent prohibited people from owning a firearm. However, the District failed to present sufficient evidence that re- registration furthered public safety, and the court determined that background checks could be conducted to promote public safety with- out burdening the owner with a re-registration regulation. Next, the court found unconstitutional a regulation that tested one’s knowledge of the law, determining that the District did not present sufficient evidence that testing one’s knowledge of the law would make gun owners more accountable for firearm safety. Accordingly, the court determined the regulation as not being closely tied to public safety. The third regulation, requiring the presence of a weapon upon the time of registration, was determined to increase public risk rather than promote public safety. The District argued that bringing the weapon would increase public safety by verifying the firearm was not switched for another or altered. However, the court determined that bringing the weapon to register suggested more of a threat to public safety due to the potential of the weapon being stolen en route, and common sense would suggest bringing the weapon might actually increase the risk of a firearm incident. As for the fourth regulation, which prohibited the registration of more than one pistol in a thirty-day period, the District argued it would limit the number of guns in circulation, therefore lowering the number of gun crimes. The District offered evidence that limiting gun purchases might reduce weapon trafficking; however, the court found this was not sufficient evidence because the regulation did not promote public safety any more than if the regulation were not in effect. Because the District was unable to present sufficient evidence that reasonably demonstrated the promotion of public safety with respect to these specific regulation, they did not pass muster under intermediate scrutiny and were struck down as violative of the Second Amendment. (Kelsey Berkley)
Pub. Integrity Alliance, Inc. v. City of Tucson
805 F.3d 876 (9th Cir. 2015). A voting system that excludes out-of-ward residents from voting in a ward-based primary election for a partisan nominee, who will represent their interest after a general election, violates the Equal Protection Clause of the United States Constitution despite allowing the out-of-ward residents to vote for the ward-based nominee in the general election, because any electoral residency requirement that does not result in all constituents having an equal opportunity in the entire election process will violate the Constitution. Here, six individuals and an Arizona nonprofit organization (“Residents”), appealed from a decision by the United States District Court for the District of Arizona holding the city of Tucson’s hybrid voting system for city council constitutional. The Residents appealed the district court’s ruling in favor of the appellees — the city of Tucson, its mayor, and its current city council (collectively, “City”) — notably arguing the unconstitutionality of Tucson’s voting system. The city, split into six wards, uses a residency requirement to vote for city council nominees during the ward- based primaries, but then removes that requirement during the general election. This hybrid system results in residents of each ward electing partisan nominees in the strictly ward-based primaries, and then anyone from the entire Tucson area, including the out-of-ward residents, votes for one of those nominees to the city council. While ward-based elections are not uncommon, Tucson’s hybrid system mixes two typical electoral formats. The Ninth Circuit Court of Appeals concluded that the hybrid system’s ultimate effect allowed voters’ primary votes in certain wards to carry more weight than other Tucson residents, skewing the general election results. As Tucson votes mainly Democrat, not having a voice to vote for the Democratic nominee during the primary, i.e. who will represent the Democratic Party in the general election, creates a disadvantage for those out-of-ward residents. Because a primary and general election make up a unitary voting process, “a citizen’s right to vote in the general election may be meaning- less unless he is also permitted to vote in the primary.” Smith v. Allwright, 321 U.S. 649, 660 (1944). An electoral system that does not give all citizens an equal opportunity to participate in the complete voting cycle thus violates the United States Supreme Court’s “one per- son, one vote” standard. Reynolds v. Sims, 377 U.S. 533, 560-64 (1964). The first part of the court’s analysis hinged on how the hybrid system should be viewed. The city contended that the ward-based primary and the general election are two separate contests. But the court found that it was one voting cycle, for the two contests were co-dependent, i.e. a candidate must win the primary to qualify for the general election. Next, the court relied on Gray v. Sanders, 372 U.S. 368, 379 (1963) to determine the geographical scope of the election. The Court in Gray defined a geographical unit as the “people whose interests elected officials will represent.” 372 U.S. at 379, 83. Here, the relevant geographical unit was Tucson as a whole and not the individual wards. Since the ward-based primary only encompassed a portion of the city’s entire population, the latter being the aforementioned geographical unit, this difference would deter the “one person, one vote” standard set out in Reynolds. If the city were permitted to change the geographical unit between the primary and general elections, it could decouple the representative to be elected from his constituency. Being that the non-ward Tucsonans did not have a voice in electing the partisan nominee in the primary — despite potentially voting for that same candidate during the general election — the partisan nominee would disproportionately favor the residents from his or her own ward. As such, the Residents’ inopportunity to participate in the ward-based primary failed to meet the “one person, one vote” standard. The City then argued that the hybrid system was a reasonable residency restriction, and the City had met its burden. But the court analogized the voting interests of ward and out-of-ward residents with Town of Lockport v. Citizens for Comm. Action at the Local Level, Inc., 430 U.S. 419, 422-26 (1977), where the Court held a city’s electoral system unconstitutional unless the electoral classifications (i.e., voting groups) have genuinely different interests in said election. Considering the out-of-ward residents had an equal interest in the governing of Tucson as the in-ward residents, the hybrid system did not meet Lockport’s reasonableness test. The court concluded that an electoral system electing city-wide councilman that prevented citizens from voting in a primary election determining the electorates in a general election arbitrarily discriminates against those citizens and thus violates the Equal Protection Clause. The dissenting opinion, however, states that the majority overstepped its power in applying the “one person, one vote” standard in overruling the local law because: (1) states traditionally have a right to limit primary elections; and (2) the Ninth Circuit Court of Appeals had previously found this right in Arizona not to be in violation of the Fourteenth Amendment. Ziskis v. Symington, 47 F.3d 1004, 1005 (9th Cir. 1995). Overall, the dissent argues for a clearer standard of review because Tucson’s interest in maintaining its electoral system, one already established by the appellate court, at least equals the burden put on the out-of-ward residents in not being allowed to participate in the primary elections. (Michael Laurila)
Comm’r of Ind. Bureau of Motor Vehicles v. Vawter
45 N.E.3d 1200 (Ind. 2015). A state’s denial of personal license plates applications or revocations of previously admitted personal license plates did not violate the First Amendment protection of free speech because the content on license plates constitutes government speech. Indiana’s Bureau of Motor Vehicles (“BMV”) appealed from a summary judgment decision in favor of appellees, a certified class of personal license plate applicants (“Applicants”), holding the state’s ordinances violated the First Amendment and also the Due Process Clause of the Fourteenth Amendment by providing insufficient and vague reasoning for rejection or revocation. Because the state court found the state statute that authorizes the Bureau of Motor Vehicles (“BMV”) to reject or revoke personal license plates (“PLPs”) to be unconstitutional, the state’s supreme court had exclusive jurisdiction over the case. PLPs may be applied for in a particular alphanumeric order, which can be approved by the BMV. Ind. Code Ann. § 9-13-2-125; see also Ind. Code Ann. § 9-18-15-4(a). The BMV may reject an application if it offends good taste or decency, could be misleading, or if the BMV in their discretion deems it improper for issuance. Ind. Code Ann. § 9-18-15-4(b). A PLP may be revoked if too many complaints are filed about it, or if the BMV determines a previously issued plate violates state law. 140 Ind. Admin. Code 2-5-4(a). Although the court addressed forum arguments and due process arguments against constitutionality, the state supreme court predominately held these procedures to be constitutional because they were government speech by weighing the factors of the “Walker Test” as applied by the Supreme Court in Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), which considers, “First, whether the government has historically used the medium to speak to the public; second, whether the message is closely identified in the public mind with the state; and third, the degree of control the state maintains over the messages conveyed.” Considering the state’s historical use of license plates, the court found that the government had primarily used license plates for the government purpose of identifying motor vehicles. License plates have also been used for the government purpose of conveying state messages either through images or a slogan. The Applicants argued that because the license plates in question are personalized, that this historic practice should not support the conclusion of government speech. The court, however, notes that this practice is secondary, and it does not dilute the primary purpose or historical view of license plates as firstly for government use. Considering the second factor, the court found that PLPs are closely related to the government in the mind of the public. The application process must go directly through the government. Most importantly, the personalized plates act as vehicle identification and not as a personal assertion as the Applicants argue. Lastly, in considering the control over the PLPs, the Applicants argued that the state did not have “effective control” over the plates because members of the public decided what would be displayed. The court held, however, that the BMV’s final discretionary decision making constituted effective control because ultimate power to reject or accept any PLP was still vested in the government. Ultimately, all three factors from the Walker Test weighed against the Applicants. The Applicants next argued that even if PLPs are considered government speech, PLPs were private speech held in a public forum. Although the court found that analyzing the Walker Test factors would be enough, modeling their analysis after the Supreme Court, the court also addressed forum analysis. The Applicants argued that the speech should be considered a traditional public forum, a designated and limited public forum, or, in the alternative, a non-public forum. The court found in no way was the license plate a traditional public forum, such as a street or a park. Id. (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)). The court found that a designated or limited public forum — one not traditionally found, but specially designated by the government — also did not apply because personal license plates could not reasonably promote a meaningful public discourse. A non-public forum analysis would apply when the government only manages government property, which is used for private speech — such as an interschool mailing system — but when that government property is used for government speech over any private speech, the analysis does not apply as in the case here. Walker, 135 S. Ct. at 2243. The court concludes by dismissing the claim under the Due Process Clause because the PLPs were found to be a benefit which could be approved or denied solely at the government’s discretion. Accordingly, the Applicants did not have a property right protectable by the Fourteenth Amendment. (Clint Mann)
Amerijet Int’l, Inc. v. Miami-Dade Cnty.
2015 U.S. App. LEXIS 16700 (11th Cir. 2015). A county ordinance requiring companies using the airport to pay their workers wages higher than the applicable federal or state minimum rates is not preempted by the Airline Deregulation Act (“ADA”) because any effect the ordinance may have on an air carrier’s services is “indirect, remote, and tenuous,” and consequently lacks the requisite “significant impact” to bring it within the scope of the ADA’s preemption clause. Appellants, Amerijet International, Inc. (“Amerijet”), challenged the ordinance, arguing that it is preempted by the ADA, or is unconstitutional under the Constitution’s dormant Commerce Clause and Equal Protection Clause. Amerijet is a small all-cargo airline which serves the United States, the Caribbean, and Latin America. In 2005, Amerijet expanded its operations to include a variety of other services, generally referred to as cargo and ground handling services (“cargo handling services”). Such services largely consist of the loading, unloading and delivery of cargo for other airlines. The appellee is Miami-Dade County (“County”), in sup- port of the ordinance. The County’s Living Wage Ordinance (“LWO”) requires companies that use the facilities of Miami International Air- port (“MIA”) to pay a “living wage” to all employees who perform “covered services.” Miami-Dade County, Fla., Code of Ordinances, ch. 2, art. I, § 2-8.9(f )(2)(A). The County enacted the LWO to pro- mote the creation of full-time, permanent jobs that would pay Miami-Dade residents a sustainable wage and thereby ease the burden on local taxpayers who would otherwise be required to pay for social services. The LWO was designed to help workers meet basic needs, such as food, shelter and medical care, without reliance on government programs. In 2010, Amerijet executed a lease with the County, the owner and operator of MIA, for warehouse space to regularly provide cargo handling services at the airport. The lease contained a provision requiring Amerijet to comply with all of the County’s applicable ordinances, including the LWO. In 2010, Amerijet employees raised allegations that Amerijet was providing cargo handling services without paying the minimum living wage rate, as required by the LWO. Amerijet argued that the LWO only applied to covered service contractors, and did not apply to air carriers like itself. Amerijet asserted that the ADA preempts the LWO due to the ordinance’s “significant impact” on air carriers’ provision of services. The United States Court of Appeals for the Eleventh Circuit stated that the ADA prohibits states or their political subdivisions from enforcing any law, regulation, or other provision relating to the rates, routes, or services of any air carrier. 49 U.S.C. § 41713(b)(1). The ADA included a preemption clause “[t]o ensure that the States would not undo federal deregulation [of domestic air transport] with regulation of their own.” Morales v. Trans World Airlines Inc., 504 U.S. 374, 378 (1992). The court explained that while ADA preemption might apply to a state law that has a “significant impact” on the services of an air carrier, it does not extend to one that is “too tenuous, remote, or peripheral . . . to have preemptive effect.” Am. Airlines Inc. v. Wolens, 513 U.S. 219, 224 (1995). To sup- port its position, Amerijet relied on Rowe v. N.H. Motor Transp. Ass’n, where the Supreme Court held pre-emption occurs where state laws have a significant impact related to the deregulatory and preemption- related objectives of Congress. 552 U.S. 364 (2008). Amerijet argued that the LWO has a “significant impact” on air carriers’ services in two ways. First, compliance with the LWO’s requirements creates a substantial burden in the form of additional administrative labor and costs. Second, the LWO alters the manner in which Amerijet provides services by compelling it to undertake the impracticable task of dividing its workforce into two groups: (1) employees who perform “covered services” per the LWO, and (2) those who do not. The Eleventh Circuit disagreed. The court stated that while Rowe contemplated a state’s substitution of its own laws for “competitive market forces” in determining to a significant degree the services provided by carriers, here the LWO neither bound Amerijet to the types of services it must provide, nor did it preclude Amerijet from choosing to provide certain services. The court found that because the LWO merely altered the incentives facing an air carrier, the ordinance was no different from myriad state laws in areas traditionally subject to local regulation, which Congress could not possibly have intended to eliminate. The court explained that any increase in Amerijet’s administrative costs which might raise the price of baggage handling services amounts to indirect economic influences insufficient to trigger preemption. Furthermore, the Eleventh Circuit also rejected Amerijet’s argument that a pay structure with different wage rates for cargo handlers performing “covered services” constrained the services provided by air carriers. The court reasoned that employers routinely pay their employees different wage rates, even to those whose duties fall within the same job description. In conclusion, The Eleventh Circuit affirmed the district court’s dismissal of Amerijet’s ADA preemption claim, finding that any effect the LWO may have on an air carrier’s services fell short of the “significant impact” necessary for application of ADA preemption. (W.A. Teachey)
Dana’s R.R. Supply v. AG
807 F.3d 1235 (11th Cir. 2015). A state statute criminalizing businesses for imposing a surcharge to customers who prefer to pay by credit card violates the First Amendment’s right to free speech because it is (1) a regulation affecting commercial speech and (2) not narrowly tailored to serve a compelling state inter- est. Four, small Florida businesses (the “Businesses”) challenged the district court’s judgment dismissing the Businesses claims on the grounds that the statute fell within the state’s broad discretion to regulate economic affairs. The appellee is the state of Florida (“State”), in support of the statute. The statute makes it a second-degree misdemeanor for a “sellor or lessor in a sales transaction” to “impose a sur- charge on the buyer or lessee for electing to use a credit card.” Fla. Stat. § 501.0117(1)-(2) (“credit card surcharge statute”). Additionally, the credit card surcharge statute expressly provides the “offering of a discount for the purpose of inducing payment by cash.” Fla. Stat. § 501.0117(1). The Businesses each informed customers that they would be charged a fee for using a credit card as payment, and were each subsequently sent cease and desist letters by the State. The Businesses argued that the credit card surcharge statute was invalid under the First Amendment because it served as an unconstitutional restriction on speech. The United States Court of Appeals for the Eleventh Circuit stated that “restrictions directed at commerce or conduct” may be upheld — assuming they further a substantial government interest and are narrowly tailored — even if they “impose incidental burdens on speech.” See Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011). The court explained that the credit card surcharge statute proved difficult to categorize, skirting the line between targeting commercial speech and restricting writ large. However, the court determined that it was not necessary to decide on which side of that line the credit card surcharge statute ultimately fell because it crumbled under any level of heightened First Amendment scrutiny. The court explained that the credit card surcharge statute discriminated on the basis of the speech’s content, the identity of the speaker, and the message being expressed — subjecting it to First Amendment scrutiny. The Eleventh Circuit bolstered its conclusion by assessing the credit card surcharge statute under the four-part test from Central Hudson, used to determine when restrictions on commercial speech violate the First Amendment. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 558, (1980). Applying the Central Hudson test, the court must consider whether (1) the challenged law regulates speech that is neither misleading or related to unlawful activity, (2) the government has a substantial interest at stake, (3) the law directly advances the government interest and (4) a more limited restriction would be insufficient for that interest to be served as well. See id. The court concluded that the credit card surcharge statute failed each step of the Central Hudson test. The Eleventh Circuit first stated that calling a fee a surcharge is not in the least bit misleading or unlawful. Second, the court explained that there could not be any plausible governmental purpose for enacting the credit card surcharge statute, finding the State’s arguments — regarding (a) anti-fraud measures against bait-and-switch tactics, (b) protection from unpleasant surprises at the register, and (c) leveling the playing field among merchants — to be wholly unconvincing. The Eleventh Circuit found no substantive state interest that could be furthered by the credit card surcharge statute. The court explained that the issue of bait and switch would be better addressed by prohibiting all dual-pricing, not surcharge fees only. In conclusion, the Eleventh Circuit struck down the credit card surcharge statute as an unconstitutional abridgement of free speech. (Matthew Quinn)
Dibbs v. Hillsborough Cnty
625 Fed. App’x 515 (11th Cir. 2015). A community plan aimed to protect the rural nature of a county did not violate a property developer’s substantive due process rights, because there was a rational basis to believe the adoption of the plan, and its application to the developer’s property, would further the plan’s legitimate government goals. Nor did the plan violate a property developer’s equal protection rights, due to the developer being unable to identify any “similarly situated” individuals. Appellant, Steven Dibbs, (“Land Owner”) appealed the district court’s grant of summary judgment to appellee, Hillsborough County (“County”), on his 42 U.S.C. § 1983 claim, arguing the County’s community plan (“Plan”), which regulates land use and development, is unconstitutional. The purpose of the Plan is to preserve the “predominant[ly] rural residential character” of the community, and consistent with this purpose, the Plan set out guidelines for the use of the land in that area, including density restrictions, regulations governing new residential developments and the construction of roads and streets, and directives for the appropriation of natural resources. After the Plan was adopted, Land Owner purchased three properties within the area that the Plan governed, for which he made several development proposals, including a request to re-zone his property in order to build a golf course, and to build a “denser residential development” than allowed for by the Plan. The County rejected them as being inconsistent with the Plan. Following these rejections, Land Owner filed a § 1983 suit against the County, claiming both facial and as-applied Due Process and Equal Protection violations. The court analyzed Land Owner’s substantive Due Process claim using a rational basis standard. Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1214 (11th Cir. 1995). The court used a two-step procedure in its application of the rational basis standard, which (1) attempted to “identify a legitimate government purpose–a goal – which the [County] could have been pursuing,” and (2) “ask[ed] whether a rational basis exists for the [County] to believe that the [Plan] would further the hypothesized purpose.” Id. Quoting Restigouche, the court first determined that the County’s goals, as stated in the Plan, to preserve natural areas and resources, maintain the ecological balance, improve design aesthetics, and protect the area from suburban and urban sprawl were all legitimate government goals, because “maintenance of community aesthetics is a legitimate government purpose.” Second, the court explained that there was a rational basis for the County to believe that its adoption of the Plan — and its application to Land Owner’s property – furthered these objectives, because his development proposals were directly contradictory to the Plan’s legitimate government goals. Specifically, the court noted that the County’s goal of “maintaining ecological balance” was served by its denial of Land Owner’s request to build a golf course on his property, and similarly, its rejection of Land Owner’s proposed “dense residential development” promoted its objective of reducing urban sprawl. The court then analyzed Land Owner’s Equal Protection claim, stating that to succeed he “must show (1) that [he was] treated differently from other similarly situated individuals, and (2) that [the County] unequally applied a facially neutral ordinance for the purpose of discriminating against [him].” Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1314 (11th Cir. 2006). Additionally, since the Land Owner did not allege being a member of a protected class, the court was required to apply the “similarly situated” requirement rigorously. Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009). Therefore, the Land Owner’s Equal Protection claim failed because, although he claimed he was treated disparately in relation to others who succeeded in opting out of the Plan, he failed to identify anyone who was in fact able to opt out. (Bryce Moore)
Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay
2015 U.S. Dist. LEXIS 117926 (E.D.N.Y 2015). A county ordinance prohibiting a person from soliciting employment from a public right-of-way violates the First Amendment because it (1) regulates speech of a communicative nature, (2) is content-based, and (2) not narrowly tailored to serve a compelling government interest. The plaintiffs, Centro de la Comunidad Hispana de Locust Valley and The Workplace Project (“Plaintiffs”), challenged the ordinance. The Plaintiffs are organizations that advocate on behalf of immigrant workers and day laborers by sending employees out to educate immigrant workers on matters such as the English language, safety standards, and labor rights. The defendant is the Town of Oyster Bay (“Town”), in support of the ordinance. The ordinance prohibits day laborers from stopping or attempting to stop a motor vehicle for the purpose of soliciting employment of any kind. Town of Oyster Bay Code, 205-32 (Sept. 29, 2009). Solicit or solicitation is defined as “any request, offer, enticement, or action which announces the availability for or of employment or which seeks to offer or secure employment.” The Town argued that the ordinance falls outside the purview of First Amendment protection because it does not affect speech, but rather, regulates only conduct. The United States District Court for the Eastern District of New York determined that the ordinance does not merely restrict the stopping or attempting to stop a vehicle for the purpose of soliciting, but rather it prohibits such conduct only when accompanied with expression of the availability of a job or of a person for employment (“roadside solicitation of employment”). As such, the ordinance does not merely regulate conduct, but rather affects “speech as well as conduct of a communicative nature.” See Loper v. New York City Police Dept., 999 F.2d 699, 702 (2d Cir. 1993). The court employed the thee-factor test from Bolger v. Youngs Drug Products Corp, used to determine whether an expressive activity constitutes commercial speech, particularly where the speech combines both commercial and noncommercial elements. 463 U.S. 60, 66 (1983). According to Bolger, the court must consider whether (1) the communication is an advertisement, (2) the communication makes reference to a specific product, and (3) the speaker has an economic motivation for the communication. Id. The court determined that measured against the three Bolger factors, the roadside solicitation of employment is commercial speech. To support its conclusion, the court stated that the solicitation at issue here is an advertisement of a specific product — the availability of the day laborer for work and the availability of a job by vehicle operators. Moreover, both the day laborers and the vehicle operator have an economic motivation — the day laborer to make money and the vehicle operator to secure labor at low cost. Third, the district court determined that because the ordinance regulates commercial speech, its constitutionality is governed by the four prong test set forth in Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557 (1980). The court explained that under Central Hudson, commercial speech is entitled to First Amendment protection only where (1) it concerns lawful activity and is not misleading and (2) the government asserted a substantial interest to be achieved by the restriction. Id. at 563-66. If both these conditions are met, the court must ask whether the regulation (3) directly advances the government interest asserted and (4) is not more extensive than necessary to serve that interest. Id. In Sorrell v. IMS Health Inc., the Supreme Court couched Central Hudson’s fourth prong for restrictions on content-based commercial speech as requiring the government to show, at minimum, that the ordinance directly advances a substantial government interest and that the measure is drawn to achieve that interest. 131 S. Ct. 2653 (2011). Thus, according to the clarification provided in Sorrell, the Central Hudson test requires the court to determine whether the ordinance is content based. The district court stated that government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. See Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). This commonsense meaning of the phrase content based requires the court to consider whether a regulation of speech on its face draws distinctions based on the message a speaker conveys. Id. The district court concluded that on its face, the ordinance is content based because it was addressed to only one type of speech — the roadside solicitation of employment — and did not address other types of roadside solicitation or nonsolicitation speech. The court provided further support for its conclusion by stating that the obvious purpose of the ordinance — to address “traffic caused by the solicitation of employment” — confirms that it is content based. After determining that the ordinance was content-based, the court turned to the first prong of the Central Hudson test. The Town argued that the roadside solicitation of employment here is not entitled to First Amendment protection and may be freely regulated by the government, or banned altogether, because it relates to an unlawful activity. However, the court disagreed. In doing so, the court relied on Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973). In Pittsburgh Press, the Supreme Court held that a municipal ordinance prohibiting newspapers from publishing gender designated “help-wanted” advertising columns (which were effectively marketing efforts targeting prostitutes and drug dealers) did not violate the publisher’s rights under the First Amendment. Id. The court explained that the pivotal distinction between the scenario in Pittsburgh Press and the issue at hand, is that in Pittsburgh Press the illegality was embodied as part and parcel of the prohibited speech. In contrast, the speech banned under the Town’s ordinance targets efforts to solicit employment, which is not in and of itself illegal. As such, the court concluded that the roadside solicitation of employment here is lawful activity and thus entitled to First Amendment protection. Moving forward, the court stated that Central Hudson’s second prong requires a substantial interest to be achieved by the restriction. The Town asserted that the ordinance’s purpose was to protect the health, safety, and welfare of pedestrians and motorist form the dangers brought about by street solicitation. In affirming the Town’s argument, the court recognized that a substantial interest may be furthered by promoting the free flow of traffic, both on streets and sidewalks. See McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014). Next, the court stated that Central Hudson’s third prong requires the ordinance to directly advance the asserted interest. The Town argued that the ordinance’s support was insufficient because any solicitation would be equally as dangerous to the public. However, the court disagreed, in part. The court conceded that the under inclusiveness of the ordinance may raise doubts that the government is not actually advancing its asserted interest. See Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015). Nevertheless, the court explained that the Town need not address all aspects of the problem, and may address only the most pressing concerns. Id. The court concluded that permitting taxicabs, limousines, public transportation, and ambulances to operate may be a reasonable belief by the Town that these types of solicitation do not present an acute problem, and merely raise a question of fact as to the Town’s satisfaction of the third prong. See Metromedia, Inc. v. San Diego, 453 U.S. 490, 511-12 (1981). Lastly, the court stated that Central Hudson’s forth prong re- quires that the ordinance not be more extensive than necessary to serve the particular governmental interest. The court determined that the ordinance was “extremely far-reaching” because the breadth of the prohibited solicitations ranged from day labors seeking employment, students advertising for a school carwash, to as far as children’s lemonade stands. The ordinance also applied to all streets and road- ways in the Town regardless of the traffic flow. The district court concluded that the ordinance failed the fourth prong of the Central Hudson test because the speech prohibited did not necessarily pose an actual threat to the asserted interest, and the Town may not impose a prophylactic ban merely to spare itself the trouble of distinguishing the harmless from the harmful. See Alexander v. Cahill, 598 F.3d 79, 96 (2d Cir. 2010). Furthermore, the court recognized the existence of less burdensome laws that were already in place that would address the problems. The Town argued that they needed one law that would address all of the government’s concerns and that current laws were not within the jurisdiction of its public safety officers. Un- persuaded by the Town’s argument, the court stated that the ordinance violated the Plaintiffs’ First Amendment rights because it was more extensive than necessary to serve the Town’s interest. (Jim McClure)
Schwartz v. Phila. Zoning Bd. of Adjustment
No. 1334 C.D. 2014 2015 Pa. Commw. LEXIS 413 (Commw. Ct. Sep. 24, 2015). A municipality’s zoning code, which defines “family” to prohibit more than three unrelated individuals from residing in property zoned for single-family residential use, is subject to a rational basis review and not facially unconstitutional under the due process clause of the U.S. Constitution. Sheldon Schwartz and Paul Abeln (collectively “Property Owners”) appeal orders of the Court of Common Pleas of Philadelphia County in separate actions which held that Section 14- 102(49) of the former Philadelphia Zoning Code (“Code”), which defined family as excluding three or more unrelated persons, is constitutional both on its face and as applied to the property owners. Appellants owned properties in the city of Philadelphia that were zoned for single-family residential use and admittedly rented to groups of more than three unrelated individuals, primarily consisting of college students. These students, comprised of friends and sorority sisters, testified that they paid their rent with one check, each had access to all parts of the house, and regularly cooked, dined, completed chores, and furnished the house together. The Property Owners argued that even if the definition of family in the Code is constitutional, the use of the properties by the unrelated groups of students is the functional equivalent to the use of the properties by a “family.” The court applied the well-established precedent that zoning ordinances serve as a constitutionally protected application of police power. Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926). The use of police power extends beyond the prevention of crime, blight, and disease, and includes the authority to create different kinds of spaces within a community. Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974). In reviewing the constitutionality of such ordinances, courts must defer to the legislative judgment and find them unconstitutional only when the ordinance is clearly arbitrary and unreasonable. Euclid, 272 U.S. at 386. While the application of biological and legal relationships to limit use of a single-family residence is not facially unconstitutional (Albert v. Zoning Hearing Bd., 854 A.2d 401, 407 (2004)), the court must further determine that the ordinance is not unconstitutional as applied to the specific use at issue. Appeal of Lynch v. Community Homes, Inc., 554 A.2d 155, 158 (Pa. Cmwlth. 1989). First, the court held the Property Owners did not establish that the Code’s definition of family is unconstitutional as applied to single-family residential zoning. The Property Owners argued that the court should no longer follow the Belle Terre majority but instead follow Justice Thurgood Marshall’s dissent principled on the concern that such zoning ordinances are ripe for abuse by discriminatory municipalities. The court rejected the Property Owners’ argument on the basis that the Code’s ordinance served to prohibit more than three unrelated persons from cohabitating within the areas specifically zoned for single-family residences, not within the municipality as a whole. Further, the court noted that Justice Marshall him- self determined a single-family zoning ordinance to be constitutional that defined family as being restricted to no more than four unrelated individuals. Belle Terre, 416 U.S. at 17. Next, the court found the ordinance passed the rational basis standard. The court noted that zoning ordinances are presumed to be constitutional as they are presumed to be enacted for the benefit of the general welfare. Upper Salford Town- ship v. Collins, 669 A.2d 335, 336 (Pa. 1995). Citing a long history of legislative attempts to best define family for zoning ordinances, the court finally relied on previous Pennsylvania Supreme Court holdings that the utilization of blood and marriage was constitutional because it recognized and attempted to cure inadequacies in previous definitions. Albert v. Zoning Hearing Bd. of North Abington Township, 854 A.2d 401, 410 (Pa. 2004). Therefore, the Code’s ordinance is constitutional on its face. Finally, the court held that the Property Owners did not demonstrate that the ordinance was unconstitutional as applied to their properties. The Property Owners argued that the groups of unrelated individuals that rented their properties served as the functional equivalent of a family. Despite the testimony that the tenants had access to the entire house, paid the rent with a single check, performed household chores together, and often cooked and dined together, the court determined the tenants did not serve as the functional equivalent of a family. Instead, the only common bond that brought the tenants together was their college experience. While the court recognized that there exists some degree of fluidity in the common family, the college experience that bound the tenants together involved far too regular of change to resemble a family. Therefore, the court held the Code’s ordinance was neither unconstitutional on its face nor as applied to the Property Owners. (Harrison Blue)
Save Mount Diablo v. Contra Costa Cnty
193 Cal. Rptr. 3d 611 (Cal. Ct. App. 2015). A county taking of two narrow strips of land crossing a property and intersecting each other, which physically separated the property into four parts, does not constitute a division of land under Cal. Gov. Code § 6642 (2014) (“Land Subdivision Act”). Ronald E. Nunn and Shirley Nunn (the “Nunns”), owners of a 586-acre parcel in Contra Costa County (the “property”), challenged the trial court’s decision to deny the issuance of certificates of compliance. A certificate of compliance assures that a parcel of land is in compliance with the Land Subdivision Act. The appellee is Contra Costa County (“County”), in support of the trial court’s finding that the taking did not create a “subdivision” of land under the Land Subdivision Act. A “subdivision” of land occurs when one parcel is legally divided. The Nunns purchased the property in 2006. However, prior to their purchase, the property was divided by condemnation proceedings in 1997. The condemnation proceedings flowed from the construction of a dam in the eastern part of Contra Costa County. The project re- quired the Contra Costa Water District to acquire 20,000 acres of property from about 40 county landowners. The project also required relocation of 13 miles of road and installation of 20 miles of water pipeline and 12 miles of gas line. The previous owners of the Nunns’ property were ultimately awarded $964,000 in compensation for the taking. The Nunns’ deed describes the land property as a single parcel, defined by metes and bounds, with the County-owned land excluded. As a result of the exclusions, the property consists of four parts, separated from each other by the narrow strips of County-owned land. Irrespective of the narrow strips owned by the County, the Nunns have ready access between them. The land above the buried pipeline is covered in gravel and is freely passable, and the road, which is two lanes wide as it passes through the property, can be crossed on the surface and by way of underpasses. Two years after buying the property, the Nunns applied to the County for issuance of a certificate of compliance for each of the property’s four parts. The Nunns argued that they were entitled to a certificate for each part because the County’s condemnation had the effect of subdividing the property. The County denied the Nunns’ request for the four certificates, stating that the property’s separation, as a result of the dam project, did not constitute a “subdivision” under the Act. The trial court affirmed the County’s denial, stating that such an “automatic subdivision” would set a “wide-ranging precedent potentially applicable to many property owners in the area” whose properties had been separated in some manner by public acquisition of the property. The Nunns appealed, arguing that the issuance of the certificates were proper because the separation of land by eminent domain was a separation of property as a matter of law. The Court of Appeals of California stated that generally, a landowner who wants to subdivide property is required to obtain local approval of a parcel or final map demonstrating that the division complies with applicable state and local laws governing land use and development. The Land Subdivision Act serves the purpose of allowing city and county governing bodies the ability to control the design and improvements of land by requiring them to adopt ordinances regulating such activity. The Land Subdivision Act allows for parcels of land to be divided into separate parcels by: (1) applying for a parcel map effecting the division of property, (2) applying for certificates of compliance, which can be sought when a division of land has already occurred and a statutory exemption from the map requirement applies or (3) applying for conditional certificates of compliance, which can be sought when no map has been recorded and no statutory exemption applies. The Nunns argued that the eminent domain action caused a de facto division of property. However, the California Court of Appeals disagreed. The court explained that while a piece of land may be described in parcels due to physical boundaries, it is only entitled to certificates of compliance if the prior division is one recognized by the Land Subdivision Act. Simply because a piece of land is not fluidly touching throughout, does not mean it is divided for purposes of the Land Subdivision Act. Moreover, just because a piece of land was physically separated by legal means does not entitle the owners to division of the land within the meaning of the Land Subdivision Act. Next, the Nunns alternatively asserted that they are entitled to certificates of compliance under the Land Subdivision Act because the property was conveyed through condemnation proceedings. The court concluded that the condemnation exemption did not apply. The court supported its conclusion by explaining that § 66428(a)(2) of the Land Subdivision Act provides an exemption of map requirements for “[l]and conveyed to or from a governmental agency [or] public entity. . .for rights-of-way, unless a showing is made in individual cases, upon substantial evidence, that public policy necessitates a parcel map.” The court noted that the plain language of this section does not apply to the Nunns because the property at hand was never transferred to or from a city or government agency or entity. Rather portions of the original property were transferred to a government entity prior to the Nunns’ ownership. The land in dispute has only been conveyed through private ownership. Finally, the Nunns argued that a division of property can occur through a conveyance of a piece of property for which no map has been recorded, entitling them to a conditional certificate of compliance. However, as the court determined, such a conveyances is in violation of the Land Subdivision Act and is seen as an illegal conveyance. The court found that the Nunns’ acquisition of the property was a legal conveyance. The parcel was a whole both before and after condemnation, as shown by a single deed. In conclusion, the court determined that regular and conditional certificates of compliance are limited to property that has already been divided and are in need of legitimizing such division. Because the Nunns’ property was not considered divided within the meaning of the Land Subdivision Act, the Nunns were not entitled to either certificate of compliance. (Mallory McDonald)
Hopkins v. City of Mendenhall
2015 Miss. App. LEXIS 507 (Miss. Ct. App. 2015). Adoption of a city ordinance that mandates closure of a portion of a public street may be upheld where (1) the proponent of the street closure is the only interested and abutting landowner, and (2) the closing of the street causes only minimal inconvenience to the general public because there were numerous alternative streets. Appellants, The First Baptist Church of Mendenhall, Mississippi (“Church”), filed a petition with the city of Mendenhall (“City”) requesting closure of a portion of East Court Street (“Street”). Appellees — Miriam Hopkins, Eldon Sewell, Dina Sewell, Abbie Patrick, Jaris Patrick, Jovita Boggan, Rita Wigginton, and Ann Womack (“Property Owners”) — who owned property near the Church, challenged the ordinance. On June 1, 2010, the City accepted the Church’s request and adopted Ordinance 244. City of Mendenhall Zoning Reg., § 244 (June 1, 2010) (“Ordinance”). The Ordinance vacated and closed a portion of East Court Street lying between East Street and Oak Street. Id. In support of the Ordinance, the Church argued (1) it holds the only interest as single adjoining landowner, (2) it would cause minimal in- convenience to the general public, and (3) it was in the best interest of the city and its citizens. The district court found that the basis for closing the Street was the safety of the citizens of Mendenhall that attend functions at the Church or the Church’s Family Life Center. The Property Owners appealed. The Appeals Court of Mississippi stated that it would not strike down the street closing ordinance unless it was clearly shown to be “arbitrary, capricious, discriminatory, illegal, or without evidentiary basis.” Precision Commc’ns, Inc. v. Hinds Cnty., Miss., 74 So. 3d 366, 369 (Miss. Ct. App. 2011). An act is arbitrary or capricious if it is done at pleasure, without reasoned judgment, or with disregard to the surrounding circumstances. Id. Furthermore, the court explained that a public road cannot be closed until it is found that (1) the closing is for the public good and (2) abutting landowners are compensated. Id. The court stated that closing a road for traffic and safety may be upheld where the closure is for the public good, but a city may not close a road just to benefit one private party. Mill Creek Props., Inc. v. City of Columbia, 944 So. 2d 67, 69-70 (Miss. Ct. App. 2006). If a landowner is not abutting the closed portion of the road, he must prove special damages in order to recover. Id. at 71. The court concluded the closure of the Street was not solely for the purpose of benefitting the Church. The court found that the Church only benefitted from the street’s closure because it was closed for the public good regarding the safety of the citizens who attended functions at the church. The City’s evidentiary basis was founded on the testimony of nine citizens, six of whom supported the closing of the Street. The court also determined that the Property Owners were not entitled to compensation without proving special damages because they were not abutting landowners. To support its conclusion, the court found that there was no testimony from any citizen in regards to special damages, and the Property Owners’ attorney conceded during trial that no right to special damages existed. Accordingly, the court upheld the adoption of the Ordinance because the closure of the Street was for the public good. (Lydia Townsend)
Raef v. Appellate Div. of Superior Court
240 Cal. App. 4th 1124 (Cal. Ct. App. 2015). A state statute increasing the punishment for reckless driving and other traffic offenses committed with the intent to capture an image, sound recording, or other physical impression of another person for commercial purposes does not violate the First Amendment because (1) it is a law of general application that does not target speech or single out the press for special treatment and (2) is neither vague nor overbroad. After being charged with two violations of the statute, appellant Paul Raef (“Raef ”) challenged the statute. Raef, a journalist, argued that the increased penalties are directed specifically at celebrity photographers or paparazzi, and unduly infringe on the freedom of news gatherers in general, in violation of the First Amendment. Appellee, the People of Los Angeles County (the “People”), supported the statute. The People contended that the statute is a neutral law of general application that regulates traffic conduct and implicates the First Amendment only incidentally, if at all. The statute provides in relevant part that “any person who violates Sections 21701, 21703, or 23103, with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose, is guilty of a misdemeanor and not an infraction and shall be punished by imprisonment in a county jail for not more than six months and by a fine of not more than two thousand five hundred dollars.” Los Angeles County, C.A. Vehicle Code § 40008(a) (the “Anti-Paparazzi Statute”). Of the traffic violations contained in the above listed statutes, interfering with the driver’s control of a vehicle and tailgating are infractions, and reckless driving is a misdemeanor. Effectively, under the Anti-Paparazzi Statute, if any of sections 21701, 21703, or 23103 are violated with the requisite intent, the statute allows the violation to be charged as a misdemeanor and imposes increased penalties. The California Court of Appeals determined that in order to prevail in a facial validity challenge, Raef must show that either (1) no set of circumstances exists under which the Anti- Paparazzi Statute would be valid, or (2) that the statute lacks any “plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 472 (2010). Raef first argued that on its face, the Statute unduly imposes a burden on paparazzi because it is not limited to paparazzi chasing celebrities or reporters gathering news. Rather, the Statute targets “any person” who commits an enumerated traffic offense with the intent to capture the image, sound, or physical impression of “another person” for a commercial purpose. In rejecting Raef ’s argument, the court explained that the Anti-Paparazzi Statute applies without limitation, whether the intended image or recording is of a celebrity or someone with no claim to fame, whether it qualifies as news or is a matter of purely private interest, and whether it will be sold to the mass media or be put to purely private use. The First Amendment does not immunize the press from the “enforcement of civil or criminal statutes of general applicability.” See Branzburg v. Hayes 408 U.S. 665, 682 (1972); Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991). The court supported its conclusion by stating that generally applicable laws do not offend the First Amendment simply because their enforcement has incidental effects on the ability to gather and report the news. The court noted that Raef incorrectly relies on Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Rev., for its proposition of invalidating a generally applicable use tax law that “as a practical matter” burdened the press. See 460 U.S. 575, 577–578 (1983). As the court in that case explained, the Minnesota use tax on the cost of paper and ink products consumed in the production of publications was a “special tax,” “without parallel” in the state’s tax scheme. See Id. The court here further distinguished Minneapolis Star Tribune Co. by explaining that the tax applied only to publications, and evidence before the court showed that after the enactment of a $100,000 exemption, only the largest publications had to pay the tax. Here, in contrast, the Anti-Paparazzi Statute applies generally to persons committing traffic offenses with the intent to gather certain types of audiovisual material for personal gain, regardless of the ultimate use of the material. The court found that Raef failed to supply any evidence that the Statute’s enforcement has imposed an actual burden on the media, and as such, the Anti-Paparazzi Statute does not impose any direct penalty on the publication of material gathered in violation of traffic laws. Based on the foregoing, the Superior Court for the County of Los Angeles determined that the Anti-Paparazzi Statute does not violate the First Amendment of the United States Constitution. (Carly Iverson)
Schlessinger v. Chi. Hous. Auth.
No. 12 C 3733, 2015 U.S. Dist. LEXIS 124503 (N.D. III. Sep. 16, 2015). A plaintiff fails to establish constitutionally protected speech under 28 U.S.C. § 1983 when (1) a plaintiff cannot give any details as to what the allegedly impinged speech entailed or (2) the communication is entirely internal and of a personal nature. Plaintiff Schlessinger (“Landlord”) is a landlord who participated in a Housing Choice Voucher (“HCV”) program, a federal section 8 program that reimburses the landlord but only if the property passes housing inspections. The defendant, Chicago Housing Authority (“Housing Authority”), managed the HCV program. In 2009, Landlord began complaining about the Housing Authority’s inspections on his properties at council meetings, stating that the inspections of his properties were in error. Between March and August of 2011, he attended other Housing Authority meetings where he raised “[t]he same complaints that [he made] in 2009.” On August 10, 2011, the Housing Authority sent Landlord a notice of intent to remove one of Landlord’s properties (“Property”) from the HCV program for failing inspections. On August 16, 2011, Landlord emailed (“August Email”) the Housing Authority regarding several alleged problems that caused “major and unnecessary monetary losses to both [Landlord] and HUD fiduciary funds.” Thereafter, the Housing Authority re-inspected the Property, which again failed the inspection but now with notice of life threatening conditions that required repair within 24 hours. The Landlord alleges that the Housing Authority retaliated against him in violation of his rights under the First and Fourteenth Amendments pursuant to 28 U.S.C. § 1983. To be successful, Landlord “must prove that (1) he engaged in constitutionally protected speech; (2) the defendants, as public officials, engaged in adverse conduct against him; and (3) the defendants were motivated, at least in part, by his protected speech.” Bivens v. Trent, 591 F.3d 555, 559 (7th Cir. 2010). Landlord asserts that he engaged in constitutionally protected speech when he (1) complained at the Housing Authority meetings about its inefficiencies alleging they constitute government waste, and (2) sent the August Email regarding several problems that caused major monetary losses to himself and to HUD. Speech is constitutionally protected if the plaintiff engaged in speech that addressed a matter of public concern and if that employee’s interest in commenting on such matters outweighs the employer’s interest in efficient public services. Chicago United Indus., Ltd. v. City of Chicago, 685 F. Supp. 2d 791, 812 (N.D. Ill. 2010); Gazarkiewicz v. Town of Kingsford Heights, Indiana, 359 F.3d 933, 940 (7th Cir. 2004). To be a matter of public concern, the speech must relate “to any matter of political, social, or other concern to the community.” Wainscott v. Henry, 315 F.3d 844, 849 (7th Cir. 2003). However, speech is not a matter of public concern if it “involves a personal grievance of interest only to the [speaker].” Gazarkiewicz, 359 F.3d at 940-41. Regarding his assertions at the meetings, Landlord argues that this speech was constitutionally protected because he was protesting government waste, which could be recognized as a matter of public concern. However the United States District Court for the Northern District of Illinois held that Landlord could not show that the speech was a matter of public concern because Landlord could not give a clear indication of what actually was said. Landlord not only could not remember any of the specifics of the statements he made at the 2011 meeting, but he also could not remember when or where the meeting was. The only details Landlord provided were that he made the same complaints as he did in his 2009 complaints. Because Landlord could not show he had expressed any protected speech, the court granted the motion for summary judgment. In regards to Landlord’s August Email, while this speech provides more specific statements the court could evaluate, it was not protected speech. The form of speech was an email that was entirely internal between Landlord and the Housing Authority representatives. While the fact the speech was entirely internal does not in itself cause the speech to be unprotected, it suggests that the speech was personal in nature. Bivens, 591 F.3d at 561. The court found that the August Email was self-serving with the goal of furthering his private interests. In the court’s eyes, Landlord was not attempting to “bring an issue of wrongdoing . . . to public light.” See id. The primary focus of the email was so Landlord could get his properties approved, not because he was raising a matter of public concern. Because the Landlord failed to establish constitutionally protected speech, the court did not address the remaining elements. (Anthony Hernandez)