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Charles W. Thompson, Jr.Executive Director/General CounselInternational Municipal LawyersAssociation

Court agrees to hear a little less than 1% of thecases brought to it.

Roughly 80% of the cases seeking review are informa pauperis cases.

For the past several years, the court has beenaccepting about 75 cases a year for argumenton the merits.

The Court reverses between 70 % to 80% of thecases it reviews. Last Term -72%.

4th Cir. 6 cases 3 affirmed 3 reversed = 50%.

9th Circuit batted .380 with 21% of the docket.

Need 4 Justices to agree to grant cert

Ideological bases for decision-making

The big picture

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The Amicus Brief

Can add facts not found in the record

Can suggest a different question presented (petitionstage) and reword the question

Cannot be authored by a party or financed by a party

Helpful to a Petitioner to highlight significant andvaried interests in court granting cert.

Helpful by expanding on arguments made by a party.

Must be a member for IMLA to file an amicus.

Supreme Court Counsel

"When Mullenix fired, he reasonablyunderstood Leija to be a fugitive fleeing arrest,at speeds over 100 miles per hour, who wasarmed and possibly intoxicated, who hadthreatened to kill any officer he saw if thepolice did not abandon their pursuit, and whowas racing towards Officer Ducheneaux'sposition".

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Qualified Immunity: “We have repeatedly toldcourts . . . not to define clearly established lawat a high level of generality.” al-Kidd, supra, at742. The dispositive question is “whether theviolative nature of particular conduct is clearlyestablished.” . . . This inquiry “‘must beundertaken in light of the specific context of thecase, not as a broad general proposition.’”

In this case, the Fifth Circuit held that Mullenixviolated the clearly established rule that apolice officer may not “‘use deadly force againsta fleeing felon who does not pose a sufficientthreat of harm to the officer or others.’” 773 F.3d, at 725. Yet this Court has previouslyconsidered— and rejected—almost that exactformulation of the qualified immunity questionin the Fourth Amendment context

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The relevant inquiry is whether existingprecedent placed the conclusion that Mullenixacted unreasonably in these circumstances“beyond debate.” al-Kidd, supra, at 741. Thegeneral principle that deadly force requires asufficient threat hardly settles this matter.

Even accepting that these circumstances fallsomewhere between the two sets of casesrespondents discuss, qualified immunityprotects actions in the “‘hazy border betweenexcessive and acceptable force.’”

Ultimately, whatever can be said of the wisdomof Mullenix’s choice, this Court’s precedents donot place the conclusion that he actedunreasonably in these circumstances “beyonddebate.”

Scalia: I join the judgment of the Court, but would notdescribe what occurred here as the application ofdeadly force in effecting an arrest.

That was a risky enterprise, as the outcomedemonstrated; but determining whether it violated theFourth Amendment requires us to ask, not whether itwas reasonable to kill Leija, but whether it wasreasonable to shoot at the engine in light of the risk toLeija. It distorts that inquiry, I think, to make thequestion whether it was reasonable for Mullenix to“apply deadly force.”

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Sotomayor: Chadrin Mullenix fired six rounds in thedark at a car traveling 85 miles per hour. He did sowithout any training in that tactic, against the waitorder of his superior officer, and less than a secondbefore the car hit spike strips deployed to stop it.Mullenix’s rogue conduct killed the driver, Israel Leija,Jr. Because it was clearly established under the FourthAmendment that an officer in Mullenix’s positionshould not have fired the shots, I respectfully dissentfrom the grant of summary reversal.

April 15-18 Washington DC - Omni Shoreham

IMLA Program on Section 1983 coupled withIMLA Annual Seminar

From Basic to Advanced discussions of Section1983

www.imla.org

City of Asheville v. North Dakota

Wasatch County v. Ute Indian Tribe

Hawaii Wildlife Fund v. Maui County

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Does Gilbert's mere assertion of a lack ofdiscriminatory motive render its faciallycontent--based sign code content-neutral andjustify the code's differential treatment ofPetitioners' religious signs?

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The court in a unanimous decision concludesthat the Town’s law violates the Constitution.

It gets a bit confusing –

Justice Alito writes a concurring opinion for himselfand 2 others saying don’t worry there are a legion ofsign regulations that are still ok including “onpremise vs off premise” regulations.

Justice Kagan writes an opinion for herself and 2others saying the result’s ok but the Court goes toofar in its opinion and may be creating a super “signboard” to hear sign law complaints.

So it’s 3-3-3 on signs regulations.

The holding: The Sign Code’s provisions arecontent-based regulations of speech that do notsurvive strict scrutiny.

Whether laws define regulated speech byparticular subject matter or by its function orpurpose, they are subject to strict scrutiny. Thesame is true for laws that, though faciallycontent neutral, cannot be “ ‘justified withoutreference to the content of the regulatedspeech,’ ” or were adopted by the government“because of disagreement with the message”conveyed.

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Did not address commercial signs orcommercial speech; i.e. billboards

Did not affect Cental Hudson or Metromedia

Did not address permanent signs.

Did not address off- premise vs on- premisedistinction

Alito said these distinctions can still be regulated

Noted traffic regulations might survive strictscrutiny if narrowly tailored

Thomas: A sign ordinance narrowly tailored tothe challenges of protecting the safety ofpedestrians, drivers, and passengers—such aswarning signs marking hazards on privateproperty, signs directing traffic, or streetnumbers associated with private houses—wellmight survive strict scrutiny.

Kagan: The majority could easily have taken Ladue’stack here. The Town of Gilbert’s defense of its signordinance—most notably, the law’s distinctionsbetween directional signs and others—does not passstrict scrutiny, or intermediate scrutiny, or even thelaugh test.

Accordingly, there is no need to decide in this casewhether strict scrutiny applies to every sign ordinancein every town across this country containing a subject-matter exemption. I suspect this Court and others willregret the majority’s insistence today on answering thatquestion in the affirmative.

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Kagan: And as the challenges to them mount,courts will have to invalidate one after theother. (This Court may soon find itself averitable Supreme Board of Sign Review.) Andcourts will strike down those democraticallyenacted local laws . . .

Regulating signs –

Content neutral laws.

Balancing the rights of property owners with theaesthetic values of a community.

Balancing the rights of property owners with safetyconcerns.

Is a “STOP” sign ok if used to get a customer in thestore?

What’s an off-premise sign?

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Reed has been used to strike down:

South Carolina Robo-calling law - Cahaly v. Larosa

Panhandling laws

Florida statute which prohibits placing a surchargefor use of credit card (but allowing a cash discount)was deemed unconstitutional on the basis of speech,using Reed v Gilbert. 11th Cir.

Working on a model – 4th Draft available forcomments

Three programs at the IMLA annual conference

Additional programming via webinar and atIMLA Seminar in DC

Remember the vote count -

Traffic Control Devices on private propertyopen to the public

MUTCD

Identification of Address

Create uniform standards

Legally required signs

No Trespassing, No solicitation, High Voltage

Compelling governmental interest – public safety,protect property rights

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Off-site

[See Professor Tribe’s opinion]

Commercial signs – may be regulated underMetromedia and Central Hudson

Non-Commercial signs - No basis to preventwhere commercial signs allowed. Metromedia

Distinction must bear a relationship tointerests of regulation – Cincinnati vDiscovery Networks

Temporary. A banner, pennant, poster oradvertising display constructed of paper, cloth,canvas, plastic sheet, cardboard, wallboard,plywood or other like materials and thatappears to be intended or is determined by thecode official to be displayed for a limited periodof time.

Size?

How many?

When?

Duration?

Weekend signs in the right of way?

What to do with flags?

Complete ban means:

Old Glory, state flags and city flags are banned

Not a good idea.

Ban commercial flags?

Might survive Central Hudson/Metromedia if banlimited to residential areas

Limit number of flags

See Vero Beach -

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Government signs.

Traffic Control Devices

Directional Signs

Economic Development/Tourism banners, etc.

Holiday signs placed by government

Promotional signs

Don’t drink and drive

Click it or ticket

Content neutral

Those without permit where permit required.

Those not allowed by sign code or other law.

Other – Graffiti, etc.

Content specific

Obscene

Commercial in non-commercial location

Traffic device mimics

City requires hotels to keep guest registry andto make the registry available to police uponrequest.

Does this requirement violate the hotel’s 4th

Amendment rights?

Can there be a claim for a facial violation of the4th Amendment or must it be an as appliedchallenge?

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In a 5-4 opinion, the held that facial challengesunder the Fourth Amendment are notcategorically barred or even especiallydisfavored.

Regarding the ordinance in question, the Courtheld that the ordinance is faciallyunconstitutional because it fails to provide theoperators with an opportunity for pre-compliance review.

As explained above, nothing in our decisiontoday precludes an officer from conducting asurprise inspection by obtaining an ex partewarrant or, where an officer reasonablysuspects the registry would be altered, fromguarding the registry pending a hearing on amotion to quash.

JUSTICE SCALIA’s claim that these procedureswill prove unworkable given the large numberof hotels in Los Angeles is a red herring.

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The Dissent: The purpose of this recordkeepingrequirement is to deter criminal conduct, onthe theory that criminals will be unwilling tocarry on illicit activities in motel rooms if theymust provide identifying information at check-in. Because this deterrent effect will only beaccomplished if motels actually do requireguests to provide the required information, theordinance also authorizes police to conductrandom spot checks of motels’ guest registersto ensure that they are properly maintained.

SCALIA: This proposal is equal parts 1984 andAlice in Wonderland. It protects motels fromgovernment inspection of their registers byauthorizing government agents to seize theregisters (if “guarding” entails forbidding theregister to be moved) or to upset guests by aprolonged police presence at the motel.

IMLA working on model to respond to thisdecision.

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Issue: (1) Whether Title II of the Americans withDisabilities Act requires law enforcement officers toprovide accommodations to an armed, violent, andmentally ill suspect in the course of bringing thesuspect into custody; and (2) whether it was clearlyestablished that even where an exception to the warrantrequirement applied, an entry into a residence could beunreasonable under the Fourth Amendment by reasonof the anticipated resistance of an armed and violentsuspect within. (Breyer, J., recused.)

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Court dismisses ADA issue as improvidentlygranted.

Be careful what you wish for –

the Court had believed the city would argue the ADAdid not apply to arrests of armed and dangerousindividuals, however, that issue was not briefed

On Qualified Immunity

Did not decide constitutional question of whether adisabled person must be accorded anaccommodation under the 4th Amendment

Concluded the law is not clear and officers areentitled to immunity.

The Court reversed the decision of the Ninth Circuit,“repeatedly told courts – and the Ninth Circuit inparticular – not to define clearly established at a highlevel of generality…Qualified immunity is no immunityat all if ‘clearly established’ law can simply be definedas the right to be free from unreasonable searches andseizures.”

Under the circumstances, a reasonable officer couldhave concluded that the second entry into Sheehan’shome was justified both under the continuous searchrationale and the exigent circumstances rationale.

Blanchard and Walworth County v. Brown

Petition stage at Supreme Court

IMLA Amicus Brief to be filed

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Issue(s): Whether a police officer’s mistake oflaw can provide the individualized suspicionthat the Fourth Amendment requires to justifya traffic stop.

Issue(s): Whether a document from a state orlocal government stating that an applicationhas been denied, but providing no reasonswhatsoever for the denial, can satisfy theCommunications Act’s “in writing”requirement.

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The Communications Act requires a localgovernment to issue a denial in writing butdoes not specify that the writing cannot be inmultiple documents.

Reasons do not have to appear in the writtendenial letter as long as they appear in someother written record, are sufficiently clear, andare provided or made accessible to theapplicant essentially contemporaneously withthe written denial notice. 6-3

Arkansas prison policy only allows inmates tohave ¼ inch beards and then only if they have askin condition.

Holt, a devout Muslim, asked prison officialsfor permission to grow a half-inch beard – acompromise from the full beard that hebelieves his religion requires.

When denied, he sues under RLUIPA.

The lower court defers to Arkansas prisonadministrators and upholds the policy.

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Supreme Court concludes (9-0) that the banviolates RLUIPA and reverses.

Most states allow prisoners to wear a half inchbeard.

The distinction between a ¼ inch beard and a½ inch beard could not be supportedrationally.

Search the same

State allows ½ inch long head hair

Not likely to find a cell phone in there!

Anti-trust, State Action Exemption

Question Presented: Whether, for the purposesof the state-action exemption from federalantitrust law, an official state regulatory boardcreated by state law may properly be treated asa “private” actor simply because, pursuant tostate law, a majority of the board’s membersare also market participants who are elected totheir official positions by other marketparticipants.

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In a 6-3 opinion delivered by Justice Kennedy,the Court held that because a controllingnumber of the Board’s decision makers areactive market participants in the occupation theBoard regulates, the Board can invoke state-action antitrust immunity only if it was subjectto active supervision by the State, and here thatrequirement was not met.

Local regulatory boards?

Question Presented: Whether disparate-impact claimsare cognizable under the Fair Housing Act.

This was the third time the Court has accepted a caseinvolving the issue of whether disparate-impact claimscan be brought under the Fair Housing Act (FHA).(The prior two cases settled).

In a 5-4 opinion delivered by Justice Kennedy, theCourt held that disparate impact claims do exist underthe FHA.

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The Court appeared to place new limits onwhen and how disparate impact claims can bebrought.

Disparate-impact claims cannot be based solelyon statistical disparities;

A plaintiff must show that a defendant’s policyactually caused that disparity.

“Although the Court is reluctant to approve ordisapprove a case that is not pending, it shouldbe noted that Magner was decided without thecautionary standards announced in thisopinion and, in all events, the case was settledby the parties before an ultimate determinationof disparate-impact liability.”

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This case “involves a novel theory of liability,”

The FHA “does not put housing authorities andprivate developers in a double bind of liability,subject to suit whether they choose torejuvenate a city core or to promote new low-income housing in suburban communities,”

They can show that a policy is necessary toachieve a valid goal and avoid liability.

Questions Presented: (1) Whether the messages andimages that appear on state-issued specialty licenseplates qualify as government speech immune fromany requirement of viewpoint neutrality; and (2)whether Texas engaged in “viewpointdiscrimination” by rejecting the license-plate designproposed by the Sons of Confederate Veterans,when Texas has not issued any license plate thatportrays the confederacy or the confederate battleflag in a negative or critical light.

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Supreme Court held that Texas's specialty licenseplate designs constitute government speech andtherefore Texas was entitled to refuse to issue aparticular license plate containing an image of theconfederate flag.

The Court noted that "[j]ust as Texas cannot require[a person] to convey 'the State's ideologicalmessage,' [a person] cannot force Texas to include aConfederate battle flag on its specialty licenseplates."

The Court noted that "as a general matter, when thegovernment speaks, it is entitled to promote aprogram, to espouse a policy, or to take a position"and that it "is not easy to imagine how governmentcould function if it lacked the freedom to select themessages it wishes to convey."

State law can limit government speech as canthe Constitution.

Issue(s): Whether an employer can be liable underTitle VII of the Civil Rights Act of 1964 forrefusing to hire an applicant or discharging anemployee based on a “religious observance andpractice” only if the employer has actualknowledge that a religious accommodation wasrequired and the employer's actual knowledgeresulted from direct, explicit notice from theapplicant or employee.

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Instead the employee/applicant only mustshow that his or her need for anaccommodation was a “motivating factor” inthe employer’s decision.

the Court concluded that Abercrombie at leastsuspected the applicant wore a head scarf forreligious reasons so the Court did not decidewhether the motive requirement could be metwithout the employer at least “suspecting” apractice is a religious one.

Florida elects its judges.

Yulee wanted to be a judge so she sent out amailer to the community expressing herinterest in election to the bench, touting hervirtues, asking for money.

Florida prohibits candidates for judicial officefrom personally soliciting campaigncontributions.

Yulee was sanctioned by public reprimand anda $1000 fine.

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“A candidate, including an incumbent judge,for a judicial office that is filled by publicelection between competing candidates shallnot personally solicit campaign funds, or solicitattorneys for publicly stated support, but mayestablish committees of responsible persons tosecure and manage the expenditure of funds forthe candidate’s campaign and to obtain publicstatements of support for his or her candidacy.Such committees are not prohibited fromsoliciting campaign contributions and publicsupport from any person or corporationauthorized by law.”

Yulee defended based on a claim that theprohibition violated her First AmendmentRights.

In a 5-4 decision, the Supreme Court upheldthe prohibition against Yulee’s challenge.

“In sum, we hold today what we assumed inWhite: A State may restrict the speech of ajudicial candidate only if the restriction isnarrowly tailored to serve a compellinginterest.”

In an effort to preserve public confidence in theintegrity of their judiciaries, many of thoseStates prohibit judges and judicial candidatesfrom personally soliciting funds for theircampaigns. We must decide whether the FirstAmendment permits such restrictions onspeech. We hold that it does.

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“Here, Canon 7C(1) advances the State’scompelling interest in preserving publicconfidence in the integrity of the judiciary, andit does so through means narrowly tailored toavoid unnecessarily abridging speech. This istherefore one of the rare cases in which aspeech restriction withstands strict scrutiny.”

The Dissent: This Court has not been shy toenforce the First Amendment in recent Terms—even in cases that do not involve electionspeech. It has accorded robust protection todepictions of animal torture, sale of violentvideo games to children, and lies about havingwon military medals. See United States v.Stevens, 559 U. S. 460 (2010); EntertainmentMerchants, 564 U. S. ___; Alvarez, 567 U. S.___. Who would have thought that the sameCourt would today exert such heroic efforts tosave so plain an abridgement of the freedom ofspeech? Scalia, J.

Excessive force claims involving an arrest arebrought under the Fourth Amendment whileexcessive force claims brought against aconvicted prisoner are brought under theEighth Amendment. What about pretrialinmates? Should they involve a subjectivecomponent under the Fourteenth Amendmentor should these claims be analyzed like FourthAmendment claims brought by arrestees?

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In a 5-4 decision, the Court held that to provean excessive force claim under 42 U.S.C. §1983, a pretrial detainee must show only thatthe officers’ use of that force was objectivelyunreasonable; he does not need to show thatthe officers were subjectively aware that theiruse of force was unreasonable.

The difference likely means more trials on thequestion of whether the force used was“reasonable”.