Supreme Court and Ninth Circuit Civil Rights Year in Review. Oregon Chapter of the Federal Bar Association Section 1983 CLE October 15, 2015

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1 Supreme Court and Ninth Circuit Civil Rights Year in Review Oregon Chapter of the Federal Bar Association Section 1983 CLE October 15, 2015 David Angeli Angeli Ungar Law Group LLC I. FIRST AMENDMENT A. Religion Clauses Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. July 23, 2015): Washington law requiring pharmacies to timely deliver all prescription medications did not violate the Free Exercise rights of pharmacy owner who raised religious objections to dispensing birth control. Freedom from Religion Foundation, Inc. v. Weber, No , 2015 WL (9th Cir. Aug. 31, 2015): Big Mountain Jesus, a 12-foot tall statue situated on U.S. Forest Service Land at a ski resort, did not violate the Establishment Clause, given the statue s cultural and historical significance for veterans, Montanans, and tourists; the statue s inclusion in the National Register of Historic Places; and the government s intent to preserve the site as a historic part of the resort. B. Speech Clauses Williams-Yulee v. Florida Bar, 135 S.Ct (Apr. 29, 2015) (5-4; 6 opinions): Florida s ban on solicitation of campaign contributions by judicial candidates was constitutional on its face and as applied to the mass mailing specifically at issue; ban was narrowly tailored to advancing compelling interest in preserving fact and appearance of judicial integrity. Walker v. Sons of Confederate Veterans, 135 S.Ct (June 18, 2015) (5-4; 2 opinions): Texas did not act unconstitutionally in rejecting specialty license plate proposed by Texas Division of the Sons of Confederate Veterans; license plates are a form of government speech and, therefore, are not subject to normal First Amendment prohibition on viewpoint discrimination. Reed v. Town of Gilbert, 135 S.Ct (June 18, 2015) (9-0; 4 opinions): The provisions of a municipality s sign code that impose more stringent restrictions on signs directing the public to the meeting of a non-profit group than on signs conveying other messages are content-based regulations of speech that cannot survive strict scrutiny. American Freedom Defense Initiative v. King County, No (9th Cir. Aug. 12, 2015): Public transit agency s rejection of proposed advertisement did not violate First Amendment; advertising space on buses created a nonpublic forum, and rejection of ad on falsity grounds was reasonable and viewpoint neutral. 1

2 II. III. IV. Arce v. Douglas, 793 F.3d 968 (9th Cir. July 7, 2015): Arizona statute prohibiting courses and classes designed primarily for students of a particular ethnic group in public schools was facially overbroad, but provisions prohibiting courses that promoted resentment toward a race or class of people, and prohibiting ethnic solidarity rather than treatment of students as individuals, were not. CPR for Skid Row v. City of Los Angeles, 779 F.3d 1098 (9th Cir. Mar. 10, 2015): California state law prohibiting disturb[ing] or break[ing] up any assembly or meeting that is not unlawful in character is not facially unconstitutional; statute and its exception pertained to the contexts in which speech was regulated, not to the subject matter of speech at such meetings, and statute was narrowly tailored to government s substantial interest in ensuring that some individuals unruly assertion of their rights of free expression does not imperil other citizens rights of free association and discussion. SECOND AMENDMENT Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. Mar. 4, 2015): Applying intermediate scrutiny, court concluded that district court did not abuse its discretion in determining that plaintiffs failed to establish likelihood of success on merits of their challenge to city s ordinance restricting possession of large-capacity magazines. Note: In June 2015, the Ninth Circuit, sitting en banc, reheard oral arguments in Peruta v. San Diego County, 742 F.3d 1144 (9th Cir. 2014), a case in which a panel struck down a law requiring applicants for concealed carry permits to demonstrate good cause (beyond concern for one s personal safety ). FOURTH AMENDMENT Heien v. North Carolina, 135 S.Ct. 530 (Dec. 15, 2014) (8-1; 3 opinions): A reasonable mistake of law can justify a traffic stop (just as a reasonable mistake of fact can). Grady v. North Carolina, 135 S.Ct (Mar. 30, 2015) (Per Curiam): Subjecting recidivist sex offender to a satellite-based monitoring system constitutes a search. Rodriguez v. United States, 135 S.Ct (April 21, 2015) (6-3; 4 opinions): Absent reasonable suspicion, traffic stop cannot be extended to conduct a dog-sniff once the purpose of the stop has ended. City of Los Angeles v. Patel, 135 S.Ct (June 22, 2015) (5-4; 3 opinions): Administrative search statute, which required hotel operators to record and keep specific information about their guests on the premises for a ninety-day period and to make those records available to any officer of the Los Angeles Police Department for inspection on demand, was facially unconstitutional because it failed to provide the operators with an opportunity for pre-compliance review. Order on Objections to Reports of Findings & Recommendations, United States v. Phua, et al., No. 2:14-cr APG-PAL (D. Nev. April 17, 2015): FBI violated defendants Fourth Amendment rights when they convinced Caesar s Palace to deactivate internet connection to defendants villa, prompting defendants to call Caesar s to investigate, after which FBI posed as technicians to conduct covert search of the villas. DUE PROCESS (FIFTH/FOURTEENTH AMENDMENTS) Obergefell v. Hodges, 135 S.Ct (June 26, 2015) (5-4; 5 opinions): Due Process and Equal Protection Clauses of the Fourteenth Amendment require states to license 2

3 marriages between two people of the same sex and to recognize marriages between two people of the same sex when their marriage was lawfully licensed and performed out-ofstate. Kerry v. Din, 135 S.Ct (June 15, 2015) (5-4; 3 opinions): Government did not violate due process rights of a U.S. citizen when it denied an immigrant visa to her noncitizen husband on national security grounds. Kingsley v. Hendrickson, 135 S.Ct (June 22, 2015) (5-4; 3 opinions): To prove claim that officers used excessive force in violation of the Fourteenth Amendment s Due Process Clause, a pretrial detainee must show only that the officers use of force was objectively unreasonable; he need not show that the officers were subjectively aware that their use of force was unreasonable. United States v. Mazzarella, 784 F.3d 532 (9th Cir. April 20, 2015): Trial court abused its discretion in refusing to permit discovery or hold an evidentiary hearing into whether one government witness was implicitly promised immunity in exchange for testimony favorable to the government: There is a serious need for constant vigilance in both prosecutors offices and federal courtrooms to safeguard individuals Fifth Amendment rights as explained in Brady and Giglio. McCormack v. Herzog, 788 F.3d 1017 (9th Cir. May 29, 2015): The following provisions of Idaho s Pain-Capable Unborn Child Protection Act were facially unconstitutional: (1) categorical ban on abortion of fetuses 20 or more weeks postfertilization; and (2) requirement that all second trimester abortions take place in a hospital. In addition, requirement that first trimester abortions take place in a hospital, physician s office, or clinic that is properly staffed with satisfactory arrangements was held to be unconstitutionally vague. V. SIXTH AMENDMENT VI. Ohio v. Clark, 135 S.Ct (June 18, 2015) (9-0; 3 opinions): Introduction at trial of hearsay statements made by 3-year old victim of child abuse to his teachers did not violate the Confrontation Clause because those statements, which were not made with the primary purpose of creating evidence for the Government, were not testimonial in nature. EIGHTH AMENDMENT Glossip v. Gross, 135 S.Ct (June 29, 2015) (5-4; 5 opinions): Oklahoma s protocol for execution by lethal injection which relied on a sedative rather than a barbiturate to act as an anesthetic did not violate Eighth Amendment because there was no known and available better alternative. o Note: In dissent, Justice Breyer (joined by Justice Ginsburg) wrote that it is highly likely that the death penalty violates the Eighth Amendment. Note: On August 31, 2015, the Ninth Circuit heard argument in Jones v. Chappell, Case No , a case in which the district court concluded that the long delays inherent in California s death penalty system, which threatens prisoners with the slight possibility of death, almost a generation after their sentencing, violates the Eighth Amendment s prohibition against cruel and unusual punishment. 3

4 VII. VIII. CIVIL RIGHTS STATUTES (NON-TITLE VII) A. Voting Rights Act Alabama Legislative Black Caucus v. Alabama, 135 S.Ct (Mar. 25, 2015) (5-4; 3 opinions): The district court s analysis of a racial gerrymandering claim as referring to the state as a whole, rather than district by district, was legally erroneous. Furthermore, the district court did not properly calculate predominance in its alternative holding that race was not the predominant motivating factor in the creation of any of the challenged districts. Finally, the district court s other alternative holding that the challenged districts would satisfy strict scrutiny rested on a misperception of the law: Section 5 of the Voting Rights Act does not require a covered jurisdiction to maintain a particular numerical minority percentage. Instead, it requires the jurisdiction to maintain a minority s ability to elect a preferred candidate of choice. B. Fair Housing Act Texas Dep t of Housing and Community Affairs v. Inclusive Communities Project, 135 S.Ct (June 25, 2015) (5-4; 3 opinions): Disparate-impact claims are cognizable under the Fair Housing Act, i.e., plaintiff may properly challenge practices that have a disproportionately adverse effect on minorities and are otherwise unjustified by a legitimate rationale. C. Religious Land Use and Institutionalized Persons Act Holt v. Hobbs, 135 S.Ct. 853 (Jan. 20, 2015) (9-0; 3 opinions): Arkansas officials violated the RLUIPA when they refused to allow a Muslim inmate to grow a ½ inch beard. BIVENS ACTIONS AND IMMUNITY ISSUES A. Bivens Suits Mendia v. Garcia, 768 F.3d 1009 (9th Cir. Sept. 29, 2014): Immigration detainee did not have standing to seek damages from ICE agents under Bivens for any period of pre-trial detention on state criminal charges which he suffered after the state court granted him release, which he refused because of fear that ICE, which had lodged an immigration detainer against him, would re-arrest and deport him. B. Immunity Issues City and County of San Francisco v. Sheehan, 135 S.Ct (May 18, 2015) (6-2; 2 opinions): Police officers who forcibly entered the room of a woman with a mental disability and shot her were entitled to qualified immunity from a lawsuit seeking redress for the woman s injuries, because there was no clearly established right under the Fourth Amendment for police to specially accommodate mentally-disabled suspects who threaten violence. Carroll v. Carman, 135 S.Ct. 348 (Nov. 10, 2014) (Per Curiam): Police officers were entitled to qualified immunity in 1983 case alleging that officers violated the Fourth Amendment by entering plaintiffs property through carport (which was usually open to visitors) rather than the front door. Taylor v. Barkes, 135 S.Ct (June 1, 2015) (Per Curiam): Correction officials were entitled to qualified immunity in 1983 case brought by family of prisoner who 4

5 committed suicide in jail; right to adequate prevention protocols, if it exists at all, was not clearly established at the time of the suicide. Carillo v. City of Los Angeles, Nos , , 2015 WL (9th Cir. Aug. 26, 2015): Police officers not entitled to qualified immunity in 1983 case alleging that officers failed to disclose evidence that would have cast serious doubt on the credibility of key prosecution witnesses; any reasonable officer would have understood that Brady required the disclosure of the specific evidence allegedly withheld. Lisker v. City of Los Angeles, 780 F.3d 1237 (9th Cir. Mar. 20, 2015): Detectives were not absolutely immune from former inmate s 1983 claim that the detectives notes, investigative reports, and photographs of crime scene were fabricated; absolute immunity for testimony in judicial proceedings is reserved for conduct intimately associated with the judicial phase of the criminal process, and outside of that context, qualified immunity is presumed sufficient to protect government officials in the exercise of their duties. 5