NLC Federal Advocacy Update. October 23, 2018

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1 NLC Federal Advocacy Update October 23, 2018

2 Fall Action By The Numbers Fiscal Year 2019 Began on October 1 st 14 Days Until Election Day Lame Duck Session 16 Legislative Days Currently Scheduled

3 2018 Snapshot: A Race to Control Congress House Race Ratings Senate Race Ratings

4 NLC Legislative Priorities in 2018 Appropriations Infrastructure America s Water Infrastructure Act of 2018 Small Cell Wireless Autonomous Vehicles, FAA Reauthorization, Drones Opioid Crisis

5 Additional Priorities Census Emergency and Disaster Prep Marijuana Medicare Secondary Payer

6 Take Action!

7 Thank you and Questions? Stephanie Martinez-Ruckman #RebuildWithUs

8 REGISTER AT: CITYSUMMIT.NLC.ORG

9 Supreme Court & Federal Update for Pools Lisa Soronen State and Local Legal Center

10 Overview of Presentation Supreme Court cases of interest to pools (decided at the of the last term) Supreme Court cases of interest to pools (to be decided this term) Update on the attack on qualified immunity Justice Kavanaugh and issues of importance to pools Federal court update

11 Lozman v. City of Riviera Beach, Florida Issue the Supreme Court was supposed to decide: whether the existence of probable cause defeats a First Amendment retaliatoryarrest claim as a matter of law The Court didn t decide this issue instead it held: the Petitioner in this case did not have to prove the absence of probable cause to bring a First Amendment retaliatory-arrest claim against a City

12 Lozman v. City of Riviera Beach, Florida In 2006 Fane Lozman moved his floating house boat to the City owned marina Discovered the city planned to redevelop the marina using eminent domain Became an outspoken critic of the plan Spoke frequently during the public comment period at city council meetings Sued the city violating Florida s open meeting law

13 Plot Thickens In June 2006 the Council held a closed-door session, in part to discuss the lawsuit that Lozman recently had filed Councilmember Elizabeth Wade suggested that the City use its resources to intimidate Lozman Later in the meeting a different councilmember asked whether there was a consensus of what Ms. Wade is saying, and others responded in the affirmative Lozman alleges that these remarks formed an official plan to intimidate him The City says the only consensus reached was to invest the money and resources necessary to prevail in the litigation

14 Arrest At a board meeting 5 months later during the public comment period Lozman started talking about corruption of a Rivera County official and the arresting of a former official from a nearby city Rivera has a policy of only allowing people to speak about city business at board meetings Councilmember Wade told him to stop talking he refused and he was arrested Watch the video on youtube

15 Lawsuit Lozman was charged with disorderly conduct and resisting arrest; charges are dismissed Lozman sued the city for violating his First Amendment free speech rights He claims he was arrested in retaliation for opposing the City s plan to redevelop the marina and his lawsuit against the city

16 Lozman Loses at Trial Lozman concedes there was probable cause to arrest him presumable for refusing to leave the podium after being told to do so Eleventh Circuit precedent held that if an arrest is supported by probable cause a First Amendment retaliatory arrest claim fails as a matter of law

17 Supreme Court Holds We are not sure if a typical plaintiff can bring a First Amendment retaliatory arrest case where their was probable cause to arrest the plaintiff Lozman isn t the typical retaliatory arrest plaintiff Lozman is suing the City and not the police officer Lozman claims the City had adopted a policy of retaliation against him not that an officer was making a split second decision Lozman was complaining to the government high value First Amendment speech

18 Nieves v. Bartlett Bartlett was attending Arctic Man, an Alaskan snowmobile race, when for whatever reason he declined to talk to Police Officer Nieves who was patrolling the large outdoor party Bartlett later began yelling at a separate officer, Weight, not to talk to a minor on the premises, Weight pushed him away Nieves believing Bartlett posed a danger to Weight, Nieves arrested him. Nieves said then said to Bartlett bet you wish you had talked to me now in the process of the arrest Bartlett sued claiming he was arrested for refusing to talk to Nieves

19 Cautionary Tale This case doesn t call into question time limits on public comments or even limiting comments to subjects relevant to the city That said I would be careful about Viewpoint and content-based limits on speech during the public comment period Any exclusion of a person during the public comment period you have had problems with Any plot to exclude anyone from the public comment period

20 Lozman v. City of Riviera Beach, Florida Three final interesting facts about this case Issue was before the Court in 2012 (Reichle v. Howards) Lozman and the City of Riviera Beach have been to the Supreme Court before; the issue in the earlier case was whether a floating home is a vessel per a federal admiralty statute Racial aspect of the case

21 Masterpiece Cakeshop v. Colorado Civil Rights Commission Court reverses a ruling against the owner of a cake shop who refused to create a wedding cake for a same-sex couple because of his religious beliefs And decides nothing? 7-2 (dissenters would have ruled against cake shop owner)

22 Masterpiece Cakeshop v. Colorado Civil Rights Commission Charlie Craig and Dave Mullins filed a complaint against Masterpiece Cakeshop claiming it violated Colorado's public accommodations law, which prohibits discrimination in public accommodations on the basis of sexual orientation, when it refused to create a wedding cake for them The cake shop owner, Jack Phillips, explained: To create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.

23 Masterpiece Cakeshop v. Colorado Civil Rights Commission Legal basis of lawsuit: First Amendment free speech and free exercise of religion Colorado public accommodations statute which protects people on the basis of sexual orientation Numerous cities have adopted similar ordinances Is anyone defending one of these cases?

24 Masterpiece Cakeshop v. Colorado Civil Rights Commission Colorado Civil Rights Commission acted with hostility toward religion inconsistent with the First Amendment s guarantee that our laws be applied neutral[ly] toward religion I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be I mean, we we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to to use their religion to hurt others.

25 Masterpiece Cakeshop v. Colorado Civil Rights Commission Court did not: Rule that Phillips had a First Amendment free speech or free exercise of religion right to not make a wedding cake for a same-sex couple Rule that Phillips lacked a First Amendment free speech or free exercise of religion right to not make a wedding cake for a same-sex couple Suggest how this case would have decided this case had the commissioners not demonstrated a bias against religion or how similar, future cases should be decided

26 Masterpiece Cakeshop v. Colorado Civil Rights Commission Will this be the enduring take away? Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. Nine Justices agree with this Brush & Nib Studio v. City of Phoenix

27 NIFLA v. Becerra Is this case a big deal? I don t think so but I have been told I am wrong so

28 NIFLA v. Becerra Crisis pregnancy clinics Don t offer abortions Do have pictures of women in white on their website Over 1,000 more crisis pregnancy clinics in the United States than abortion providers California legislature Licensed clinics: disclose they did not provide abortions and abortions (including state paid for abortions) were available elsewhere Unlicensed clinics: disclose unlicensed

29 NIFLA v. Becerra This should be an easy case since the Supreme Court said in Reed v. Gilbert (2015) that content-based restrictions on speech are subject to strict scrutiny These disclosure are clearly content-based But since a 1985 Justice White concurrence in Lowe v. SEC some lower court had said that professional speech wasn t protected by the First Amendment or received less protection

30 NIFLA v. Becerra Ninth Circuit applied intermediate scrutiny to the licensed clinic notice because it was professional speech and held the requirement was constitutional In a 5-4 decision the Supreme Court ruled that both provisions likely violate the First Amendment Supreme said it has never recognized a category of professional speech Court held the licensed clinic notice was content-based so it applied strict scrutiny; notice failed intermediate scrutiny Notice doesn t apply to numerous other community clinics which serve low-income women, who are the intended target of the licensed notices

31 Impact Government required notices at pregnancy clinics about abortions aren t all that common but state and local governments require all kinds of notices Only Hawaii and Illinois have laws similar to California's Does strict scrutiny now apply to all of them? Justice Breyer points out [v]irtually every disclosure law could be considered content based. The majority opinion states it does not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products. But this generally phrased disclaimer would seem more likely to invite litigation than to provide needed limitation and clarification.

32 Impact Is anyone going to sue you over a content-based notice requiring landlords or restaurants to disclose particular information? These notices probably would pass strict scrutiny? Licensing requirements involving people who only speak for a living might be in trouble (tour guides, fortune tellers)

33 Fourth Amendment Search Cases Carpenter v. United States: The Fourth Amendment requires the government to receive a warrant to obtain cell-site location information Byrd v. United States: the driver of a rental car generally has a reasonable expectation of privacy in the rental car even if he or she isn t listed as an authorized driver on the rental agreement Collins v. Virginia: Fourth Amendment automobile exception does not permit police officers to search vehicles parked in the curtilage of a home without a warrant

34 Guido v. Mt. Lemmon Fire District How many of you insure special districts? Issue: does the federal Age Discrimination in Employment Act (ADEA) applies to state and local government employers with less than 20 employees? John Guido was 46 and Dennis Rankin was 54 when they were terminated by the Mount Lemmon Fire District due to budget cuts They claim they were terminated because of their age in violation of the ADEA They were the oldest of the district s 11 employees

35 Why Care about this Case? Very small special districts are very common and can t be very flexible when it comes to budget cuts Large and medium size cities may rely on special districts (to do things more cheaply than they can) Federalism: Small state and local government entities must have the latitude to staff their projects as they see fit, responsive to local needs and in line with particular project goals. The fact that these needs differ is illustrated by the different age discrimination statutes enacted by the States with a variety of minimum employee thresholds.

36 Guido v. Mt. Lemmon Fire District The term employer is defined in the ADEA as a person engaged in an industry affecting commerce who has 20 or more employees The definition goes on to say [t]he term also means (1) any agent of such a person, and (2) a State or political subdivision of a State Is State or political subdivision of a State basically a stand alone category with no size limit

37 Guido v. Mt. Lemmon Fire District Guido argued, and the Ninth Circuit agreed, that employer means [A person] and also means (1) [B agent of person] and (2) [C State-affiliated entities]. The clause describing state-affiliated entities contains no size requirement. The Ninth Circuit opined that the word also supports its interpretation. The word also is a term of enhancement; it means in addition; besides and likewise; too. As used in this context, also adds another definition to a previous definition of a term it does not clarify the previous definition.

38 Knick v. Township of Scott Issue: Should the Supreme Court overturn Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985)? The Supreme Court held that before a takings claim may be brought in federal court landowners must comply with state law procedures and remedies enacted to provide just compensation in a takings case The Constitution s Takings Clause states that private property [shall not] be taken for public use, without just compensation

39 Knick v. Township of Scott The Township of Scott adopted an ordinance requiring cemeteries, whether public or private, to be free and open and accessible to the public during the day Code enforcement could enter any property to determine the existence and location of a cemetery Rose Mary Knick sued the county in federal (rather than state) court claiming the ordinance was invalid per the Takings Clause after code enforcement went onto her property without a warrant looking for a cemetery

40 Knick v. Township of Scott The Third Circuit agreed with the Township that Knick failed to comply with the Williamson County because she filed her case in federal court instead of pursuing her takings claim under Pennsylvania s Eminent Domain Code Knick argues that the Supreme Court should overturn Williamson County because it deprives property owners of reasonable judicial access for a takings claim, impedes the orderly development of takings law, and causes a tremendous waste of judicial and litigant resources The Township of Scott defended Williamson County s state court first requirement as founded in the very language of the Fifth Amendment, and... consistent with Article III s requirement of a case or controversy, with other principles of federalism, and with the recognition of the uniquely complex and local issues presented by land use regulation

41 Knick v. Township of Scott State and local governments prefer state court for a number of reasons Faster Cheaper State judges know state property law better State judges will understand state statutory claims that often accompany takings claims better

42 Knick v. Township of Scott The Supreme Court has repeatedly and recently refused to hear petitions arguing Williamson County should be overturned What s changed? This case will provide Justice Gorsuch his first opportunity to participate in takings case on the Supreme Court Conservative judges tend to be unsympathetic of state and local governments in takings cases Justice Kavanaugh did not participate in oral argument in this case

43 Update on Attack on Qualified Immunity Is Qualified Immunity Unlawful? (2017), William Baude Justice Thomas: maybe we should look and see what immunities were available to police officers in 1871 Ginsburg and Sotomayor: criticize the Court for routinely display[ing] an unflinching willingness to summarily reverse courts for wrongly denying officers the protection of qualified immunity but rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases

44 Notre Dame Law Review Articles Alexander A. Reinert, Qualified Immunity at Trial Karen M. Blum, Qualified Immunity: Time to Change the Message Alan K. Chen, The Intractability of Qualified Immunity* Scott Michelman, The Branch Best Qualified to Abolish Immunity Aaron L. Nielson & Christopher J. Walker, A Qualified Defense of Qualified Immunity* John F. Preis, Qualified Immunity and Fault Joanna Schwartz, The Case Against Qualified Immunity* David M. Shapiro & Charles Hogle, The Horror Chamber: Unqualified Impunity in Prison Fred O. Smith, Jr., Formalism, Fragmentation, and the Future of Qualified Immunity

45 CATO Attack on Qualified Immunity The Cato Institute is a public policy research organization a think tank dedicated to the principles of individual liberty, limited government, free markets and peace Watch this event: Qualified Immunity: The Supreme Court s Unlawful Assault on Civil Rights and Police Accountability

46 CATO Attack on Qualified Immunity CATO website: Expect to see CATO briefs in the lower courts attacking qualified immunity Allah v. Milling (Supreme Court) (settled) Pauly v. White (Supreme Court) (cert denied) Rafferty v. Trumbull County (Sixth Circuit) Spencer v. Abbott (Supreme Court) (cert denied) Williams v. Cline (Seventh Circuit) Allah v. Milling CATO asks the Supreme Court to overturn qualified immunity

47 Beyond CATO Attack on Qualified Immunity Alliance Defending Freedom American Association for Justice American Civil Liberties Union Foundation Americans for Prosperity Cause of Action Institute Due Process Institute Freedom Partners Chamber of Commerce Institute for Justice Law Enforcement Action Partnership Roderick & Solange MacArthur Justice Center National Association of Criminal Defense Lawyers National Police Accountability Project Public Justice Reason Foundation Second Amendment Foundation

48 How Has this Transpired? Right and Left Join Forces on Criminal Justice, Adam Liptak, New York Times Regarding criminal justice, both the right and left are interested in less government, less intrusion, less regulation has taken hold Astounding number and vagueness of federal criminal law Advocates From Left and Right Ask Supreme Court to Revisit Immunity Defense, Alan Feuer, New York Times

49 Judicial Opinions Criticizing Qualified Immunity Thompson v. Clark (E.D.N.Y.) ( Qualified immunity has recently come under attack as over-protective of police and at odds with the original purpose of section 1983 )(plaintiff claims officers beat him after he refused to allow them to enter his house without a warrant; police had child abuse report; court denied qualified immunity) Zadeh v. Robinson (Tenth Circuit)(Texas Medical Board executed an administrative subpoena against a doctor; qualified immunity granted)(judge Willett concurs qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior no matter how palpably unreasonable as long as they were the first to behave badly )

50 Judicial Opinions Criticizing Qualified Immunity Manzanares v. Roosevelt County Adult Detention Center (D. N.M.) (county employee was killed by a violent innate assigned to help him; court granted warden qualified immunity) ( Moreover, in a day when police shootings and excessive force cases are in the news, there should be a remedy when there is a constitutional violation, and jury trials are the most democratic expression of what police action is reasonable and what action is excessive. If the citizens of New Mexico decide that state actors used excessive force or were deliberately indifferent, the verdict should stand, not be set aside because the parties could not find an indistinguishable Tenth Circuit or Supreme Court decision. )

51 Sause v. Bauer Decided June 2018 Tenth Circuit case Expected a summary reversal denying officers qualified immunity Instead: unanimous per curiam (unauthored) opinion remanding the case back to the lower court to reconsider its decision granting qualified immunity to police officers who ordered a person to stop praying

52 Sause v. Bauer Officers visited Mary Anne Sause s apartment in response to a noise complaint They then allegedly proceeded to engage in a course of strange and abusive conduct, including ordering her to stop when she knelt and began to pray Sause sued the officers for violating her First Amendment right to free exercise of religion Tenth Circuit affirmed a lower court granting the officers qualified immunity

53 Sause v. Bauer Sause argued she had a clearly established right to pray The Court agreed that the First Amendment protects the right to pray but there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place In this case the Supreme Court concluded the lower court needed answers to numerous questions before it could decide whether Sause s First Amendment or Fourth Amendment rights (to be free from an unlawful search) were violated As the case comes before us, it is unclear whether the police officers were in [Sause s] apartment at the time in question based on her consent, whether they had some other ground consistent with the Fourth Amendment for entering and remaining there, or whether their entry or continued presence was unlawful. Nor does her complaint state what, if anything, the officers wanted her to do at the time when she was allegedly told to stop praying.

54 Who is Justice Kavanaugh? We know three things about him for sure Very conservative (could be an even more reliable conservative) In between Thomas and Gorsuch/Alito Over 1/3 of his opinions involve administrative law He hasn t ruled on a lot of cases involving bread and butter issues for states because he has been on the D.C. Circuit

55 What We Have Seen So Far/Can Guess Good for pools Pro-employer Pro-law enforcement (qualified immunity, Fourth Amendment) Pro-religion in public spaces Pro-closing the courthouse door Bad for pools Pro-property rights Pro-free speech

56 Five Solid Conservatives We have had a conservative Supreme Court for my entire lifetime Never a reliable conservative Supreme Court Powell O Connor Kennedy What will such a Court do? How long will it last?

57 Orin Kerr--Twitter With Brett Kavanaugh's confirmation likely tomorrow, here a few thoughts on what this might mean for the next 5-10 years of Supreme Court action. Most obviously, this will unleash a lot of test cases. Kavanaugh's confirmation will mean that, for the first time in most of our lifetimes, there is a clear majority of conservative Justices. No mushy middles of Powell, O'Connor, Kennedy, but rather five solid conservatives. Expect a lot of people with conservative causes to push their cases to SCOTUS to see what the new Court will do. These ideological windows may stay open only for a few years; think , when there was a strong liberal majority and a whole lot happened..

58 Orin Kerr--Twitter A justice to watch: Elena Kagan. She's brilliant, and she has some centrist impulses. She'll presumably be looking to create a centrist block with Roberts to push for narrower rulings. The common wisdom that Roberts will be a check on this is correct, I think. But note that the conservative 4 of CT, SAA, NMG, and BMK are enough to get cert granted -- and Roberts in most areas has been a reliable conservative. For lawyers, briefing in Supreme Court cases presumably will aim a lot for the Chief's vote in a lot of big cases, replacing attention to Kennedy's vote. I doubt you'll see a notable change in how much originalist briefing there will be, though.

59 Orin Kerr--Twitter Finally, a big question is how long the 5-Justice conservative majority will last. We don't know, but time matters a lot of course. On one hand, the conservatives have a big age advantage w/ life tenure: The two oldest Justices are on the left, Breyer and Ginsburg (80 and 85). On the other hand, you never know. If the Senate shifts to D following next month's midterm, that probably means no more vacancies that may arise would be filled until And who knows what will happen in 2020.

60 Federal Court Update Thanks to Doug Haney Carmel, Indiana city attorney International Municipal Lawyers Association

61 Post Janus Union Membership Speech Protected by First Amendment? Montero v. Yonkers (2d Cir.) (court declines to adopt a rule that whenever an officers speaks as a union member he speaks as a citizen) Palardy v. Wilburn Township (3d Cir.) (union membership alone is worthy of First Amendment protection)

62 First Amendment--This Should be Obvious Conard v. PA State Police (3d Cir.) (First Amendment violation to give a false and negative reference in retaliation for workplace complaints) Polk v. Sinegal (5 th Cir.) (no qualified immunity for county commissioner who field an employee who ran against an incumbent judge) McGlone v. Nashville (6 th Cir.) (officer violated preacher s First Amendment rights by ordering him to leave public side walk for preaching against homosexuality outside LGBTQ festival)

63 First Amendment--Sign of the Times Ross v. City of Jackson (8 th Cir.) (no qualified immunity for officers who arrested a 20-year old Facebook user who posted which do I need to shoot up a kindergarten? ; no exigent circumstances; officers should have investigated)

64 First Amendment--Headed for the Supreme Court American Humanist v. Maryland National Park (4 th Cir.) (no summary judgment for claim 40 foot cross at WWI memorial located on public lands violates the Establishment Clause) Kondratyev v. Pensacola (11 th Cir.) (Latin cross in city park violates the Establishment Clause)

65 Fourth Amendment--When Drug Dogs Fail US v. Villafranco-Elizondo (5 th Cir.) (officers may still have probable cause from the totality of the circumstances) Harris v. Klare (6 th Cir.) (doesn t always dispel probable cause; does dispel reasonable suspicion) US v. Edwards (8 th Cir.) (same as Villafranco-Elizondo)

66 Fourth Amendment--Private Search US v. Reddick (5 th Cir.) (government relying on private search by private company doesn t violate the Fourth Amendment)

67 Fourth Amendment--Get in the House Now What? US v. Iverson (2d Cir. 2018) (if police can enter so can their drug dog) US v. Lin (5 th Cir.) (permission to enter the house isn t cart blanche to search the entire house) US v. Meador (4 th Cir.) (homeowner must revoke consent explicitly)

68 Fourth Amendment--Prolong Stop Not just amount of time spent no fishing expeditions! US v. Clark (3d Cir.) (can t ask about criminal history when not tied to traffic stop) Johnson v. Thibodaux City (5 th Cir.) (after the traffic stop has ended officer can t as passenger for proper ID absent reasonable suspicion) US v. Espinoza (8 th Cir.) (okay to extend traffic stop and delve into other topics not related to the stop if the driver lacks a valid driver s license)

69 Next Fourth Amendment Topic to go to SCOTUS Forensic border searches of phones and computers (without warrants or probable cause) Not an issue for local governments

70 Excessive Force--Sign of the Times Kane v. Barger (3d Cir.) (no qualified immunity for officer who touched sexual assault victim inappropriately and photographed intimate areas)

71 Excessive Force--Force and Camera Use Church v. Anderson (8 th Cir.) (court will not presume excessive force where plaintiff has no memory of the force but officer failed to activate recording equipment)

72 Excessive Force--Medicating Thompson v. Cope ( 7 th Cir.) (qualified immunity to paramedic who gave a sedative to a man high on amphetamines and running naked in the street)

73 Excessive Force and Mental Health Issues In the road in his undershorts in freezing weather and mumbling incoherently Suicidal individual Mentally unstable man In the midst of a psychotic episode Disturbed man Courts are sympathetic Sanzone v. Gray (7 th Cir.) (not excessive force to shoot an agitated man who points a gun at officers and tells them he is only going to fire a warning shot)

74 Title VII Outstanding Cert Petitions Zarda v. Altitude Express (en banc 2d Circuit) (employees may bring sexual orientation discrimination claims under Title VII) Discrimination on the basis of transgender and transitioning status is discrimination on the basis of sex under Title VII, EEOC v. Harris Funeral Homes (6th Cir.)

75 Title VII Davenport v. Edward D. Jones (5 th Cir.) (qui pro quo sexual harassment includes a manager requesting an employee date a customer in exchange for a work bonus)

76 Title VII--Pro-Employer Moreland v. Neilsen (7 th Cir.) (not adverse employment action for employer to pay time and expenses for employees testifying in favor of the employer in a discrimination charge hearing but not against Rooney v. Rock Tenn (8 th Cir.) (employer does not have to state a basis for termination and is not bound by whatever reasons given to the employee at the time of termination) Nealis v. Coxcom (10 th Cir.) (4 month gap between protected act and employment termination is too long standing alone to infer a retaliatory purpose)