October 22, 2011
Under Heightened Pleading Standard, No Equal Protection Claim for Female Victims of Domestic Violence
A divided three-judge panel of the Seventh Circuit on Thursday ruled in McCauley v. Chicago that the father of a victim of domestic violence had no equal protection claim against the city for failing to protect his daughter. The case was decided on the defendants' motion to dismiss; the heightened pleading standard in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly played a key role in both the majority's and the dissent's analysis.
The case arose out of the shooting death of Mersaides McCauley. McCauley was shot by her ex-boyfriend, Glenford Martinez, who was on parole for an earlier homicide and who had a history of harassing and assaulting McCauley in violation of his parole and in violation of McCauley's protection order against him. Chicago police knew of Martinez's violations but did not issue a parole violation warrant or arrest him for violating the protection order.
McCauley's father sued in state court, alleging, among other things, an equal protection claim against the city. The defendants removed the case to federal court and moved to dismiss. The district court granted the motion, concluding that McCauley failed to allege an equal protection claim.
The Seventh Circuit affirmed (although it found deep flaws in the district court's reasoning). After reviewing the pleading requirements in Iqbal and Twombly, and two of its own rulings applying those decisions--two cases that illustrate the "factual heft required to survive a motion to dismiss after Twombly and Iqbal," op. at 10--it concluded that the plaintiff failed to plead "that the City maintained a policy, custom, or practice of intentional discrimination against a class of persons to which Mersaides belonged"--female victims of domestic violence--sufficiently to maintain a policy-or-practice claim under Monell v. Department of Social Services. The court:
The allegations in [the complaint] do not plausibly suggest that the City maintained a policy or practice of selective withdrawal of police protection. To the contrary, the complaint alleges that the City failed to have particularized practices in place for the special protection of domestic-violence victims. In essence, the complaint alleges that the City failed to promulgate specific policies for this particular class of crime victims, not that the City denied this class of victims equal protection. At most, the factual allegations in the complaint plausibly suggest the uneven allocation of limited police-protection services; they do not plausibly suggest that the City maintained an intentional policy or practice of omitting police protection from female domestic-violence victims as a class.
Op. at 14-15 (emphases in original).
Judge Hamilton dissented, with a lengthy, systematic, and scathing critique of the Iqbal "plausibility" standard. Judge Hamilton said that Iqbal is in tension with--even conflicts with--earlier Supreme Court rulings on the pleading standard, the Federal Rules of Civil Procedure, and the form pleadings that are a part of the FRCP, and that as a result of this tension (unresolved in Iqbal), "the lower federal court decisions seeking to apply the new 'plausibility' standard are wildly inconsistent with each other, and with the conflicting decisions of the Supreme Court." Op. at 23.
In addition to his point-by-point comparison and critique, he also offered this especially vivid thought experiment:
Imagine that as a federal district judge, you have read Twombly and Iqbal and now must act on a motion to dismiss an equal protection complaint in which the key paragraph reads:
The educational opportunities provided by defendants for infant plaintiffs in the separate all-Negro schools are inferior to those provided for white school children similarly situated in violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. The respects in which these opportunities are inferior include the physical facilities, curricula, teaching, resources, student personnel services, access and all other educational factors, tangible and intangible, offered to school children in Topeka. Apart from all other factors, the racial segregation herein practiced in and of itself constitutes an inferiority in educational opportunity offered to Negroes, when compared to educational opportunity offered to whites.
. . .
The paragraph . . . is, of course, taken directly from plaintiffs' amended complaint in Brown v. Board of Education. . . . We also know that the conclusory allegation of the third sentence eventually appeared as the holding of the unanimous Supreme Court in Brown v. Board of Education. Under the standards of Iqbal, however, it would be easy to argue that the plaintiffs in Brown failed to state a plausible claim for relief that could survive dismissal.
Op. at 33-34. Judge Hamilton wrote that the majority, in extending Iqbal here, "[ran] afoul of Leatherman, Rule 9(b), and the form complaints approved by the Supreme Court and Congress as part of the Federal Rules of Civil Procedure."
Counterclaims of Governor Brewer and Arizona in SB1070 Litigation Dismissed
United States District Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, dismissed the counterclaims filed by Arizona and Governor Jan Brewer in a 22 page Order late Friday.
Arizona's Count One, failure and refusal to achieve and maintain “operational control” of the Arizona-Mexico borde, Count Three, abdication of statutory responsibilities (enforcement of the federal immigration laws), and Count Four, declaratory relief regarding State Criminal Alien Assistance Program (“SCAAP”) reimbursement obligations were each denominated as "statutory claims."
The constitutional counterclaims - - - Count One, the failure and refusal to protect Arizona from invasion and domestic violence under Article IV, Section 4 and Count Five, declaratory relief under the Tenth Amendment - - - were analyzed as subject to issue preclusion given Bolton's previous order, but the Judge also further considered the claims. As to the "invasion and domestic violence" counterclaim, Judge Bolton found that the claim was nonjusticiable because it was a political question and cited the "six factors" from Baker v. Carr (1962):
 a textually demonstrable constitutional commitment of the issue to a coordinate political department;
 a lack of judicially discoverable and manageable standards for resolving it;
 the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
 the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
 an unusual need for unquestioning adherence to a political decision already made;
 the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Bolton emphasized the lack of "judicially discoverable and manageable standards" for determining what constituted an invasion and domestic violence.
Regarding the Tenth Amendment counterclaim, Judge Bolton found that Arizona was not being "comandeered" :
Arizona does not point to any federal immigration policy that mandates or compels
Arizona to take any action. The complained of expenditures arise entirely from Arizona’s
own policy choices and independent constitutional obligations and are not incurred as a result
of any federal mandate. These state costs do not give rise to a claim under the Tenth
While the ruling was not unexpected, it further focuses attention on the petition for writ of certiorari filed by Arizona and Jan Brewer, seeking review of the Ninth Circuit opinion which upheld Judge Bolton's preliminary injunction against SB1070.
October 20, 2011
Members of Congress Lack Standing to Sue Administration Over Libyan Engagement
Judge Reggie B. Walton (D.D.C.) ruled today in Kucinich v. Obama that ten members of the United States House of Representatives lack standing to sue President Obama for violating the War Powers Clause of the Constitution and the War Powers Resolution for the President's commitment of U.S. forces to Libya without explicit congressional consent. We previously posted on the issue here (OLC memo concluding that the President has authority without congressional consent); here, here, and here (congressional responses to the administration's campaign in Libya); here (administration's answers on claims that it lacks authority without congressional consent); and here (Kucinich's case).
Judge Walton wrote that the group lacked both legislative standing and taxpayer standing. Legislative standing is foreclosed by Kucinich v. Bush, a similar case from the same court in 2002 by the very same lead plaintiff--a fact not overlooked by Judge Walton, who wrote with some frustration that this case was a waste of the court's time. Taxpayer standing is foreclosed by basic taxpayer standing principles and the fact that the plaintiffs can't shoehorn it into the narrow exception in Flast v. Cohen. Judge Walton didn't even get to the administration's argument that this also a nonjusticiable political question.
The ruling is hardly a surprise. But, as Judge Walton noted, it obviously doesn't mean that Congress lacks a check on the President. It can still use its power of the purse, its oversight power, the Senate's advice-and-consent power to hold up appointments (a power it's demonstrated some competence wielding), and, ultimately though unlikely, its impeachment power.
October 20, 2011 in Cases and Case Materials, Congressional Authority, Courts and Judging, Foreign Affairs, News, Opinion Analysis, Separation of Powers, Standing, War Powers | Permalink | Comments (1) | TrackBack
The First Amendment and the Supreme Court - - - Building
The Supreme Court and the Supreme Court building have special status with regard to the First Amendment.
The Supreme Court is the institution with ultimate authority to interpret the First Amendment.
The Supreme Court Building has been awarded special status by Congressional statutes with regard to the usual First Amendment practices.
40 U.S.C. § 13k provides:
It shall be unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.
40 U.S.C. § 6135 provides:
It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.
There have been challenges to the statutes on First Amendment grounds by those arrested for violating them. For example, in 2005 several protesters were arrested for violating the statute as they protested against Abu Ghraib and Guantanamo Bay by wearing a black hood; an orange jumpsuit and black hood; or holding a sign that read “no taxes for war or torture.” As the DC Circuit, upholding their convictions in 2007, described the facts, they "ascended several steps from the sidewalk to the plaza in front of the Supreme Court building. Supreme Court Police repeatedly asked appellants to return to the sidewalk and arrested them when they refused to do so."
In 2007 several protesters stepped out of their line on the Supreme Court plaza and unfurled a banner that read "Stop Executions." Their conviction was affirmed in an opinion by the DC Court of appeals in Lawler v. United States. Their petition for certiorari to the United States Supreme Court was denied (131 S.Ct. 3065, June 27, 2011).
In 2008 many protesters were arrested in a protest against Guantanamo Bay - - - again with the DC Court of Appeals upholding the convictions and rejecting the First Amendment challenge. According to the 2011 DC Ct of Appeals opinion in Kinane v. US, one group of protesters in the plaza "knelt down with their hands behind their backs. Some of the demonstrators were wearing orange jump suits, and others were carrying signs that stated, “Shut Down Guantanamo.”" Another group "gathered in the Upper Great Hall of the first floor of the Supreme Court building" chanting and wearing "orange t-shirts that stated, “Shut Down Guantanamo,” or dressed in orange jump suits; a few also had black hoods."
With recent arrests - - - including the high profile arrest of Cornel West outside the United States Supreme Court in conjunction with the "Occupy Wall Street" movement (video below) - - - the status of the Supreme Court Building as a "First Amendment free-zone" is again meriting attention.
The charges against West and those arrested with him were dropped. The status of the Supreme Court Building and the First Amendment, however, remains a troubled one. While some other public buildings and spaces have been "insulated" from the First Amendment, it does seem rather odd that the Supreme Court itself should be granted such status.
Indeed, in United States v. Grace, Justice Marshall, concurring and dissenting, found this state of affairs "ironic." In Grace, the Court declared that the special status could not extend to the sidewalks around the building, given their status as a traditional public forum. Mary Grace had been holding a sign with the text of the First Amendment.
October 19, 2011
Doe v. Reed: On remand, federal district court rejects as-applied challenge and orders names disclosed
In a remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes.
Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA), RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiative. The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization. The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.
The Court's opinion in Doe v. Reed was a clear rejection of the facial challenge, with only Justice Thomas dissenting, but two concurring opinions proffered views on the as-applied challenge to be decided by the district court on remand. Alito's concurrence contended that the plaintiffs have a "strong" First Amendment argument in light of the "widespread harassment and intimidation suffered by supporters of California’s Proposition 8." On the other hand, Stevens (joined by Breyer) wrote that " Any burden on speech that petitioners posit is speculative as well as indirect. . . . there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures."
United States District Judge Benjamin Settle agreed with Justice Stevens. In a careful and detailed 34 page opinion resolving the cross motions for summary judgment, Judge Settle considered all the evidence before him that the John Doe plaintiffs were harassed, which included "harassing" acts such as being "glared" at or receiving an angry text from one's own brother. Here is one of the more extensive examples:
Roy Hartwell, John Doe # 4. Roy Hartwell (“Hartwell) testified about R-71 [the referendum] in front of the Washington State legislature, gathered signatures for the petition in public places, and participated in television interviews regarding R-71. Stafford Decl., Ex. D (Hartwell Dep.) 7:13-8:18, 16:1-17:16, 25:17-23, 30:24-31:10. Hartwell testified in his deposition that one harassing incident involved two ladies that glared at him and one said “we have feelings too.” This occurred while Hartwell was collecting signatures for R-71 at a grocery store. Id. 18:3-12 (also discussing that the comment appeared to shake an older lady up, who signed the petition anyway). Hartwell also testified about others who he believed harassed him about the R-71 petition. See, e.g., id. 19:1-20:25 (discussing a woman who approached him at the grocery and asserted she would bring her friends to the church, which did not occur); 21:10-22:16 (discussing a lady who took Hartwell and Hartwell’s wife’s picture while they were collecting signatures at a Wal-Mart and said she would post them on Facebook to enable her friends to see what the Hartwells look like; Hartwell is unaware if the Facebook posting occurred); 22:23-23:10 (discussing a customer at Wal-Mart that asked a manager to ask the Hartwells to leave; the manager did not ask them to leave). In none of the events described by Hartwell did he feel the need to contact the police. See id. 23-11-25:9.
Judge Settle found that the John Doe plaintiffs did not produce the type of serious and widespread harassment necessary to prevail on their as applied challenge. Additionally, the John Doe plaintiffs "supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made." While certainly people should be civil in their disagreements - - - the "very foundation of preserving a free and open society" - - - the judge found that the facts simply did not "rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State."
The judge therefore lifted the injunction preventing the signers of the petition and granted summary judgment in favor of the defendants.
October 17, 2011
Taser-Wielding Law Enforcement Officers Granted Immunity by Ninth Circuit
In an opinion today in the companion cases of Mattos v. Knight & Maui County and Brooks v. City of Seattle, the Ninth Circuit sitting en banc reversed two district judges who denied summary judgment motions by law enforcement officers that they were entitled to qualified immunity as a matter of law.
In both situations, law enforcement officers wielded tasers against a woman who was arguably not threatening. Brooks entered a school zone, dropping her child off at school, and was charged with not adequately reducing her speed. Mattos was the victim of a domestic assault. Both women were tasered: Brooks because she refused to sign the citation and was placed under arrest, Mattos while she was asking why her partner was being arrested and attempting to defuse the situation. Brooks, 7 months pregnant was tasered three times; Mattos was subject without warning to a dart-taser.
The Ninth Circuit held that in each case the law enforcement officers used excessive force. For example, the court summarized its conclusions regarding Brooks:
In sum, Brooks’s alleged offenses were minor. She did not pose an immediate threat to the safety of the officers or others. She actively resisted arrest insofar as she refused to get out of her car when instructed to do so and stiffened her body and clutched her steering wheel to frustrate the officers’ efforts to remove her from her car. Brooks did not evade arrest by flight, and no other exigent circumstances existed at the time. She was seven months pregnant, which the officers knew, and they tased her three times within less than one minute,
inflicting extreme pain on Brooks.
As Judge Schroeder, concurring, noted, both women's conduct was nonthreatening:
I write separately only to emphasize the non-threatening nature of the plaintiffs’ conduct. Both were women, with children nearby, who were tased after engaging in no threatening conduct. In Mattos, a domestic violence victim wanted the officers outside her home so they would not awaken her children. In Brooks, the police stopped the pregnant plaintiff for speeding in front of her child’s school — when she refused to sign the traffic ticket and exit the vehicle, the police tased her. Her behavior may be difficult to understand, but it certainly posed no immediate threat to the officers.
Yet applying the increasingly stringent requirement after last term's decision in Ashcroft v. al-Kidd that there was a clearly established right at the time of the occurrence, the court found the officers were entitled to qualified immunity. The test, as the court distilled it was that "every reasonable officer at the time of the respective incidents would have known—beyond debate—that such conduct violates the Fourth Amendment." (Emphasis added). The court rehearsed several taser cases and concluded that the actions the court found were excessive force were not - - - beyond debate - - - excessive force.
The dissenting and concurring opinion of Kozinski, joined by Bea, is less sympathetic to the women. For Kozinski,
Brooks and Mattos breached the covenant of cooperation by refusing to comply with police orders. When citizens do that, police must bring the situation under control, and they have a number of tools at their disposal.
The "traditional tools" such as choke-holds can be "distasteful" according to Kozinski; "The Taser is a safe alternative." It is certainly to be preferred to "pepper-spray," which Kozinski maligns in two separate instances, including rhetorically rejecting "pepper spray or some other noxious chemical, which would be absorbed into her bloodstream and go straight to the fetus" as an alternative to control Brooks.
Kozinski rejects any concern for the women's status as women:
I thought we were long past the point where special pleading on the basis of sex was an acceptable form of argument. Women can, of course, be just as uncooperative and dangerous as men, and I would be most reluctant to adopt a constitutional rule that police must treat people differently because of their sex.
The opinion as a whole, and certainly Kozinski's remarks regarding gender and pepper spray, have special resonance to recent events at the "occupation" of Zuccotti Park near Wall Street. The pepper spraying of a woman protester by a senior law enforcement officer was captured on video and distributed widely.
Chelsea Elliot, the woman in the video being pepper sprayed by an officer identified as Anthony Bologna, is reportedly bringing a civil suit for excessive force. The NYPD is reportedly also investigating Bologna and other senior officers.
For those teaching constitutional litigation, civil rights, and similar courses this semester, the video and the case would make a great pairing for discussion or an individual student project.
"Stolen Valor Act" to be heard by United States Supreme Court
The United States Supreme Court today granted a petition for certiorari filed by the United States regarding the constitutionality of the "Stolen Valor Act." The Ninth Circuit in US v. Alvarez found the Act unconstitutional under the First Amendment.
The Act, codified at 18 U.S.C. § 704(b), criminalizes false representations, verbal or written, that one has been "been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item." In Alvarez, the defendant, a member of a water district board, falsely claimed he was a marine who had been awarded the Congressional Medal of Honor.
The majority of the Ninth Circuit panel analyzed the Stolen Valor Act as one that clearly regulated "only words" and targeted "words about a specific subject: military honors." It was thus a content-based regulation subject to strict scrutiny under the First Amendment. The dissenting judge argued that because the representations were false First Amendment scrutiny should be minimal.
Note that just last month the Ninth Circuit upheld the constitutionality of another provision of the Stolen Valor Act in United States v. Perleman that criminalized the fraudulent wearing of a military medal with intent to deceive. Mr. Perleman had actually been awarded the Purple Heart, but based upon a fraudulent claim that his self-inflicted wound was a war-related schrapnel injury. The Perleman panel specifically distinguished Alvarez: Perleman did not involve "only words" and had a scienter requirement.
With the grant of certiorari, the Court is set to explore First Amendment protection for false statements in the military context but accompanied by a criminal sanction. As the Ninth Circuit stated in Alvarez, "criminally-punishing lies" is not the best way to achieve the government's purpose: "it seems just as likely that the reputation and meaning of such medals is wholly unaffected by those who lie about having received them. The greatest damage done seems to be to the reputations of the liars themselves."
October 16, 2011
No Rehearing for Mt. Soledad Cross Case
The Ninth Circuit on Friday denied a petition for rehearing and for rehearing en banc of unanimous ruling by a three-judge panel on January 4, 2011, in Jewish War Veterans v. City of San Diego, holding that the Mt. Soledad cross violated the Establishment Clause.
The Mt. Soledad cross, the centerpiece of a veterans memorial in San Diego, has been the subject of lengthy litigation under the Establishment Clause and the California Constitution's No Preference Clause. The cross is a mammoth, 43-foot structure that sits atop Mt. Soledad, surrounded by plaques honoring veterans, U.S. flags, and other secular symbols. Here's a picture:
The earlier three-judge panel exhaustively surveyed the history of the cross and the site as it exists today. It ruled that while there are some indicia of a secular purpose, and while the site includes some secular symbols, "[t]aking these factors into account and considering the entire context of the Memorial, the Memorial today remains a predominantly religious symbol." The panel ruled that the cross violated the Establishment Clause under either Lemon v. Kurzman or Van Orden v. Perry.
The Ninth Circuit declined to rehear the case over a sharp dissent by Judge Bea and joined by Judges O'Scannlain, Tallman, Callahan, and Ikuta. Judge Bea would have ruled that the cross did not violate the Establishment Clause under Van Orden alone. In particular, Judge Bea said that the government's use of the symbol was secular, the context is secular, and the history--especially how long it has stood without being challenged--was secular.
If the government appeals, the case would give the Supreme Court a good opportunity to clarify Lemon and Van Orden--when exactly to use one or the other, and more precisely what Van Orden means.