Illinois Local Government Lawyers Association 25 th Annual Conference February 19, 2018

Transcription

1 FEDERAL CIVIL RIGHTS AND ILLINOIS TORT IMMUNITY CASE LAW UPDATE Illinois Local Government Lawyers Association 25 th Annual Conference February 19, 2018 By: Mike Bersani Hervas, Condon & Bersani, P.C.

2 USSC Cases Packingham v. North Carolina, 137 S. Ct (2017) USSC struck down North Carolina statute which made it a felony for a registered sex offender to gain access to commercial social networking websites. Barring access to social media violates First Amendment

3 USSC Cases Manuel v. City of Joliet, 137 S. Ct. 911 (2017) Plaintiff sued police for false arrest and malicious prosecution under Section 1983 and 4 th Amendment for allegedly fabricating drug field test. 7 th Circuit affirmed dismissal of suit: False arrest claim barred by statute of limitations No 4 th Amendment right once person detained per legal process Once person detained per legal process, 14 th Amendment governs USSC reversed and remanded: Fourth Amendment right to be free from unreasonable seizure continues beyond legal process (unlawful detention claim) Remanded to determine when claim accrues.

4 USSC Cases Cty. Of Los Angeles v. Mendez, 137 S. Ct (2017) 9 th Circuit affirmed $4 million jury award to plaintiffs shot by police officers based on provocation theory. An officer who intentionally or recklessly provokes a violent confrontation while committing an independent 4 th Amendment violation (i.e., unlawful entry) may be liable for use of deadly force. USSC vacated and remanded: The provocation rule is fundamentally flawed in that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.

5 USSC Cases District of Columbia v. Wesby (Jan. 22, 2018) Plaintiffs arrested for unlawful entry into home sued for false arrest. Lower courts denied officers qualified immunity defense. USSC reversed: Officers had probable cause to arrest based on reasonable inferences they could draw about crimes committed. Officers could have reasonably, but mistakenly concluded that probable cause existed thus entitling them to qualified immunity. No existing case law clearly established that a suspects protestation of innocence vitiated probable cause.

6 USSC Cases Murr v. Wisconsin, 137 S. Ct (2017) Regulatory takings case USSC held: 7 th Circuit correctly analyzed the lot owners property as a single unit in assessing the effect of the challenged governmental action on the parcel as a whole.

7 USSC Cases Trinity Lutheran Church v. Comer, 137 U.S (2017) Church sued State for denial of grant to replace school playground with recycled tires under State program. Lower courts dismissed suit because 1 st Amendment Free Exercise Clause did not prohibit denial of affirmative benefits to church. USSC reversed: Denying a generally available benefit solely on account of religion violates the First Amendment. States denial of benefit based solely on religion imposed a penalty on the free exercise of religion that cannot withstand strict scrutiny.

8 USSC Cases Cases to watch: Byrd v. U.S., 679 Fed. Appx. 146 (3d 2017) (whether driver of rental car has 4 th Amendment privacy interest in search of car when he has permission from renter but not listed as authorized driver) U.S. v. Carpenter, 819 F.3d 880 (6 th Cir. 2016) (whether police may seize historical cellphone records without warrant) Collins v. Virginia, 790 S.E.2d 611 (Va. 2017) (whether auto exception to warrant requirement applies to search vehicle parked few feet from house) Lozman v. City of Riviera Beach, 681 Fed. Appx. 746 (11 th Cir. 2017) (whether 1 st Amendment retaliation claim exists when there is probable cause for arrest)

9 USSC Cases Additional cases of interest to watch: Janus v. AFSCME, 851 F.3d 746 (7 th Cir. 2017) (whether state law allowing unions to collect fair share dues from non union members violates 1 st Amendment) Minnesota Voters Alliance v. Mansky, 849 F.3d 749 (8 th Cir. 2017) (whether state law banning political apparel at polling place violates 1 st Amendment)

10 7 th Circuit Cases First Amendment Tagami v. City of Chi., 875 F.3d 375 (7 th Cir. 2017) Plaintiff filed 1983 suit for violating public nudity ordinance during Go Topless Day th Circuit affirmed dismissal of suit: Public nudity ordinance regulated conduct, not speech. While some forms of expressive conduct are protected under the First Amendment, this extends only to conduct that is inherently expressive. Nudity is not an inherently expressive condition. Combined speech and non-speech elements justify regulating the non-speech element. No Equal Protection claim because ordinance treats men and women alike equally prohibiting public exposure of male and female body parts.

11 Seventh Circuit Cases First Amendment Forgue v. City of Chi., 873 F.3d 962 (7th Cir. 2017) Police officer sued under 42 U.S.C alleging First Amendment retaliation, equal protection, and procedural due process. 7 th Circuit held: Officers internal complaints of police misconduct were intimately connected to his job and he was not entitled to First Amendment protection per Garcetti v. Caballos.

12 Seventh Circuit Cases Due Process Simpson v. Brown Cnty., 860 F.3d 1001 (7 th Cir. 2017) Plaintiff sued under 1983 over Countys revocation of business license to install and repair septic systems without notice or hearing. 7 th Circuit reversed dismissal of suit: Government-issued licenses are constitutionally protected. Plaintiff was denied procedural due process. Revocation was not a random and unauthorized act such that pre-deprivation due process was impractical. Even if pre-deprivation due process was impractical, postdeprivation state law remedies were inadequate to compensate plaintiff for his financial losses.

13 7 th Circuit Cases Wrongful Conviction Stinson v. Gauger, 868 F.3d 516 (7 th Cir. 2017) Plaintiff spent over 23 years in jail for a murder he didnt commit. After DNA exonerated him, he filed 1983 suit, alleging violation of due process right to a fair trial claiming evidence was fabricated. 7 th Circuit (rehearing en banc) dismissed appeal from denial of qualified immunity because defendants failed to take the facts and reasonable inferences in plaintiffs favor and were in effect challenging the sufficiency of the evidence as opposed to presenting a legal issue for review.

14 Seventh Circuit Cases Title VII Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7 th Cir. 2017) Plaintiff filed suit under Title VII alleging that she was blocked from full time employment due to her sexual orientation. 7 th Circuit reversed district courts dismissal: Discrimination based on sexual orientation is a prohibited employment practice under Title VII.

15 Seventh Circuit Cases Equal Protection Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7 th Cir. 2017) Suit by transgender high school male who was denied use of boys restroom per school board policy. 7 th Circuit affirmed the district courts decision. There was irreparable harm because use of boys restroom was integral to students transition and emotional well-being. The balance of the hardship favored an injunction particularly because the student had used the bathroom for nearly six months without incident. There was no adequate remedy and the student was likely to succeed on his Title IX and equal protection claims.

16 Illinois Tort Immunity Cases Rozsavolgyi v. City of Aurora, 2017 IL , 2017 Ill. LEXIS 1077 (October 19, 2017) Plaintiff filed wrongful termination claim under Illinois Human Rights Act. The circuit court certified whether the Illinois Tort Immunity Act applies to damages claim under the Illinois Human Rights Act. The Appellate Court (2 nd Dist.) answered the question in the affirmative, but Illinois Supreme Court vacated the Appellate Courts decision on multiple procedural grounds and refused to address the certified question.

17 Illinois Tort Immunity Cases Corbett v. Cty. Of Lake, 2017 IL , 2017 Ill. LEXIS 1295 Plaintiff sued for injuries from falling off bike on county bike trail. Illinois Supreme Court held that immunity under section 3-107(b) of the Tort Immunity Act did not apply: Section 3-107(a): absolute immunity for injury caused by condition of hiking, riding, fishing or hunting trail. Court held that 3-107(a) only applied to primitive or rustic trails and thus the bike path within developed area was not a riding trail within the meaning of the statute.

18 Illinois Tort Immunity Cases Cohen v. Chi. Park Dist., 2017 IL (2017) Plaintiff sued for injuries after fall off bike on Lakefront Trail. Illinois Supreme Court rejected 3-107(a) because the trail was not in primitive area and was not a road. But, City was immune under 3-106, which provides immunity for injuries occurring on recreational property except for willful and wanton conduct. Park districts maintenance of trail was not willful and wanton.

19 Illinois Tort Immunity Cases Colella v. Lombard Park Dist., 2017 IL App (2d) (2017) Plaintiff sued for injuries after falling on path and her leg was impaled by a nail protruding from a piece of rebar. The court granted the park districts motion to dismiss because plaintiff was injured on a hiking trail and the spiked rebar constituted a condition of the trial within the meaning of section 3-107(b) of the Tort Immunity Act.

20 Illinois Tort Immunity Cases Lewis v. City of Chi., 2017 IL App (1 st ) U Plaintiff fell and injured his ankle after stepping into a pothole in the street when exiting a CTA bus. Defendants immune under section The City owed no duty of care to plaintiff because pedestrians are not the intended users of the street.

21 Illinois Tort Immunity Cases Hollenbeck v. City of Tuscola, 2017 IL App (4 th ) Plaintiff fell on metal storm drain or catch basin in parkway. The lid was lower than turf causing 10.5 depression to form. Appellate Court affirmed summary judgment for city: The catch basis was in a customary condition at a proper depth and was intact and did not amount to a pitfall, trap or snare giving rise to a duty of care as codified in of Tort Immunity Act.

22 Illinois Tort Immunity Cases Krivokuca v. City of Chi., 2017 IL App (1 st ) Plaintiff, whose vehicle struck pothole, sinkhole opened and entire car fell into sinkhole, sued city for negligence and res ipsa loquitur. Appellate Court affirmed dismissal of complaint: Under 3-102(a), city not is liable for negligence unless it had actual or constructive notice of condition that caused injury. Statutory notice requirement imposes additional element not present in res ipsa claims thus is incompatible with notice requirement. No evidence of actual notice and mere knowledge about age of pipe did not put city on constructive notice of the specific condition that caused the injury.

23 Illinois Tort Immunity Caselaw Monson v. City of Danville, 2017 IL App (4th) Plaintiff sued over injuries sustained when she tripped and fell on public sidewalk. Appellate Court affirmed summary judgment based on discretionary immunity. See 745 ILCS 10/2-201 and The City made discretionary and policy determinations relating to the repair, replacement, or removal of sidewalks on a case-by-case basis using numerous factors developed over multiple years in consultation and collaboration between City departments and personnel.