Constitutional Law Prof Blog

Ninth Circuit on Federal Aviation Administration Authorization Act Preemption

A divided three-judge panel of the Ninth Circuit on Monday ruled on the preemptive effects of the Federal Aviation Administration Authorization Act in American Trucking Associations, Inc. v. City of Los Angeles.  The case involves five provisions of concession agreements that the Port of Los Angeles required of all drayage truck operators as part of the Port's Clean Truck Program.  (Drayage trucks tranport cargo from the Port to customers, railroads, or other trucks.)  Those provisions are:

• The "employee-driver provision," which requires drayage truck operators to transition over five years to using 100% employee drivers rather than independent owner-operators.
• The "off-street parking provision," which requires drayage truck operators to submit an off-street parking plan for its trucks to maintain compliance with parking restrictions of local municipalities.
• The "maintenance provision," which makes drayage truck operators responsible for vehicle maintenance and safety.
• The "placard provision," which requires drayage truck operators to post a placard on all its trucks covered by a concession agreement; the placard must display a phone number to report concerns about truck emissions, safety, and compliance.
• The "financial capability provision," which requires a drayage truck operator to demonstrate that it possesses the financial capability to perform these and other obligations under the concession agreement.

The FAAA Act says as a "general rule" that "a State [or] political subdivision of a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property."  49 U.S.C. Sec. 14501(c)(1).  The relevant saving clause says that the FAAA Act does not "restrict the safety regulatory authority of a State with respect to motor vehicles."  49 U.S.C. Sec. 14501(c)(2)(A).

Thus the court wrote that it must first determine whether each concession agreement provision "relate[s] to a price, route, or service of a motor carrier."  If so, then the court must next determine "whether the provision 'has the force and effect of law'--that is, whether the provision was enacted pursuant to the State's regulation of the market, rather than the State's participation in the market in a proprietary capacity."  If the provision meets the market participant exception, it is not preempted.  But if the provision has the force of law, then the court must determine whether it fits within the saving clause.

Here's what the court said about whether the FAAA Act preempted each provision:

• The employee driver provision isn't saved from preemption by the market participant exception: it has the force of law (it doesn't meet the market participant exception) because it seeks to impact third-party (driver) wages--a subject of negotiation between the drayage operators and the drivers alone, and not the Port.
• The off-street parking provision is not preempted, because it meets the market participant exception.
• The maintenace provision is not preempted, because it is a safety regulation and fits within the saving clause.
• The placard provision is not preempted, because it is a safety regulation and fits within the saving clause.
• The financial capability provision is not preempted, because it does not relate to prices, routes, or services.

Judge Smith dissented, arguing that the market participant exception didn't apply (because "drayage services (not port services) form the relevant market, and the [Port] acts a as a regulator of drayage services; even if the Port qualifies under the exception, the off-street parking provision is preempted, because it affects "parties unrelated to contractual obligations to the Port"; and the placard provision is preempted under another provision of the FAAA Act.

The ruling affirms the lower court ruling that the provisions on off-street parking, maintenance, placard, and financial capability are not preempted.  But it reverses the lower court ruling that the employee driver provision was saved by the market participant exception.

SDS

Occupy Movements and the First Amendment: Focus on Ft Myers

As the "Occupy Wall Street” movement has spread to other locales, so too have controversies surrounding the First Amendment's scope.  The public-private status of NYC's Zuccotti Park which we discussed here, has indeed proven to be unique, and most other occupations are occurring in public spaces placing the First Amendment and local government regulations center-stage.

Today in federal district court in Ft. Myers, Florida, for example, there is a hearing on an amended motion for preliminary injunction filed on behalf of “Occupy Ft. Myers” resisting the city’s attempts to strictly enforce what the plaintiffs describe as a “series of City Code provisions which severely circumscribed politically-oriented speech, assembly and association within the city.”  Like most permit schemes, Ft. Myers' regulations (excerpted on the “Occupy Ft Myers site here) can be articulated as a prior restraint.  Indeed, the plaintiffs in "Occupy Fort Myers" note that “Fort Myers Code § 86-153 prohibits any parade, procession, or “open-air meeting” without first having obtained a special permit from the chief of police. However, more problematical under the First Amendment are the details in the permit scheme that may make it a content (or even viewpoint) regulation.  In "Occupy Fort Myers," the plaintiffs argue that "Fort Myers Code § 58-156, governing park policy, by its terms, targets all political speech and conduct to be burdened with the requirement of shutting down at 10:30 p.m. or not beginning prior to 6:30 a.m., while exempting athletic events, cultural and civic activities, and other non-political association and assembly.” 

Perhaps the Ft. Myers litigation will be resolved as amicably as that in Dallas, Texas.  The motion for a preliminary injunction filed on behalf of Occupy Dallas members (Florence v. City of Dallas), was opposed by the city,  but the parties reportedly reached a negotiated settlement which moves the protest but allows it to continue with certain conditions.

On the other hand, the specter of the situation involving Occupy Oakland involving tear gas, rubber bullets and serious injuries is one that both parties presumably seek to avoid.

RR
[image: Poster by Jimmy via Occupy Together]

Caught Between Election Reform and Early Primary

The State of Florida last spring enacted sweeping changes to its election laws, including provisions that tighten requirements on third party voter registration groups, reduce the number of early voting days from 14 to 8, and require voters who changed addresses to file a provisional ballot (instead of simply filing an affidavit), among others.  (Floridaelectionlaw.com covered the changes here.)  The arguments were familiar: The State said the changes would ensure election integrity; critics cried vote suppression.

But five counties in Florida are covered jurisdictions under the Voting Rights Act.  The State must therefore get preclearance before it can enact the changes in those counties.  (The changes can go into effect in the rest of the State.)  Florida filed for preclearance with the Attorney General but later pulled four changes (including the three mentioned above) from the administrative process and sought preclearance for those four before a three-judge district court.  The State then added a claim that the VRA preclearance provision is unconstitutional. 

Most recently, Florida moved for an expedited schedule in an effort to get an opinion before its January 31 primary--which Florida pushed earlier.  Not surprisingly, the court denied the motion, writing that it can't possibly turn the case around on Florida's tight timeline.

The court also noted that Judge Bates's ruling just last month in Shelby v. Holder, upholding the preclearance provision against a constitutional challenge, is now on appeal to the D.C. Circuit, with oral argument scheduled for January 19.  The court said that any ruling on the constitutionality of the VRA here is best put off until the court gets word from the D.C. Circuit in Shelby.

SDS

Servicemembers File Complaint Challenging Constitutionality of DOMA

DOMA - - -  the Defense of Marriage Act - - - already suffering from legislative efforts at repeal and seriously questionable constitutional status, including the Obama DOJ's decision not to defend its constitutionality, has been challenged again. 

In a Complaint filed today, the Servicemembers Legal Defense Network representing several plaintiffs, challenged the constitutionality of DOMA in conjunction with several other statutes that govern benefits for military servicemembers.  The Complaint was filed in the United States District Court for the District of Massachusetts, the same district in which Judge Tauro found DOMA unconstitutional in companion cases in July 2010.

Paragraph 67 of the Complaint distills the argument:

The current military family benefits regimes of Title 10, Title 32 and Title 38, particularly as modified by DOMA, fail to address the modern military. These laws were crafted at a time when gays and lesbians were precluded from openly serving in the military, and when same-sex marriages were not legal in the United States. While Congress may have assumed that Title 10, Title 32 and Title 38 effectively covered all military spouses in the past, that is not the current reality. The military is a reflection of our society as a whole. Now that same-sex marriages are legal, and gays and lesbians can serve openly in the military, service members -- such as the Plaintiffs -- with same-sex spouses do serve in the ranks. To maintain the uniformity of benefits that Congress believed it was creating in Title 10, Title 32 and Title 38, the definition of "spouse" must include these same-sex spouses as well.

The Constitutional grounds include Equal Protection, the Tenth Amendment, the fundamental constitutional right to marry (without a specific constitutional text), and Bill of Attainder. 

Most unique is the Bill of Attainder argument, based on Article I, Section 9 of the United States Constitution which states that "No Bill of Attainder or ex post facto Law shall be passed."  The Complaint alleges that the "Bill of Attainder clause prohibits as unconstitutional any law that legislative determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial."  The argument is that as a result of DOMA's application to federal military benefits,

the federal government imposes a disability upon a clearly identifiable class of persons involved in legally-recognized same-sex marriages, including Plaintiffs, for no purpose other than to punish them. Plaintiffs were denied federal military benefits that they would otherwise be entitled to if not for their membership in this clearly identifiable class. Thus, through DOMA, Plaintiffs have been subjected to an unconstitutional Bill of Attainder.

The defense of DOMA is expensive: the original contract awarded by House Speaker John Boehner to Bush-era Solicitor General Paul Clement and capped at $500,000 was reportedly raised to three times that amount - - -  $1.5 million dollars - - - earlier this month.  This newest lawsuit may occasion even higher costs. 

RR

Court Rejects Claim Against Municipality for Failure to Meet Pleading Standards

Judge Amy Berman Jackson (D.D.C.) yesterday dismissed a plaintiff's civil rights suit against the District of Columbia for failure to meet the pleading standard under Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly.

The plaintiff in the case, Garabis v. Unknown Officers, Elena Garabis, alleged assault and battery, excessive force, and unreasonable seizure in violation of the Fourth Amendment after District officers arrested her.  As part of her claims, Garabis alleged that officers used Tasers excessively and unnecessarily.  Garabis sued the officers and the District, alleging, under Monell v. Department of Social Services, that the District had a policy of deliberate indifference to the widespread use of Tasers.  (Under Monell, a plaintiff may sue a municipality for civil rights violations, but only if the plaintiff can show that the municipality had an official policy that led to the violations.  A plaintiff may not sue a municipality in vicarious liability, for the acts of its officers.)

But Garabis neglected to include this allegation in her complaint.  Instead, Garabis only wrote that the District employed the officers and that it was responsible for the police department.  Garabis offered more particular facts in support of her theory of Monell liability only in response to the motion to dismiss--too late for a ruling on a 12(b)(6) motion on the complaint.

Garabis can amend her complaint to include more particular facts in support of her Monell theory, and, in any event, the ruling does not affect her on-going case against the officers.

We only just recently posted on another Monell case that failed to meet the heightened pleading standard in Iqbal and Twombly, McCauley v. Chicago, out of the Seventh Circuit.  That ruling includes a lengthy and scathing dissent that roundly criticizes the standard set in those cases. 

SDS

North Carolina "Speech and Display" Ultrasound Requirement for Abortion Preliminarily Enjoined

United States District Judge Catherine Eagles has preliminarily enjoined N.C. Gen. Stat. § 90-21.85 on the basis of the First Amendment in a 19 page Opinion and Order  The statute was passed last summer, over the Governor's veto, and scheduled to become effective today.

The  statutory provision at issue, known as "speech and display," required:

• that a woman undergo an ultrasound at least four hours before an abortion
• that the physician or qualified technician working with the physician display the images produced from the ultrasound “so that the [patient] may view them,” 
• that the providers give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and
• that the providers give “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

Judge Eagles noted that it was undisputed that these provisions compelled content-based speech, that the State mandated regardless of the provider's medical opinion, whether or not the provider wanted to deliver the message, and whether or not the patient wanted to receive the message.

The State argued against the usual standard of strict scrutiny to evaluate such compelled content speech by claiming that the speech should be evaluated under an undue burden standard, or that the speech evaluated under the lesser standard for commercial speech.  Judge Eagles rejected both of these arguments because they had little, if any, support in precedent.

Judge Eagles thus found that the "speech-and-display requirements of the Act are subject to strict scrutiny under traditional and longstanding First Amendment principles" and that the State "must establish that the compelled speech required of the providers furthers a compelling state interest and that the requirements are narrowly tailored to achieve that interest."  She quickly added that the State had "not established either element."

Yet in her analysis, Judge Eagles tended to rely on the "narrowly tailored" prong of the strict scrutiny test.  As to the State's first asserted interest, "protecting abortion patients from psychological and emotional distress," Judge Eagles concluded that even if this was a compelling interest, the evidence in the record tended not to support a claim of protection, and indeed, tended to support a claim of the harm to "the psychological health of the very group the state purports to protect."  Similarly, as to the State's second asserted interest, "preventing women from being coerced into having abortions," Judge Eagles noted that the State did not articulate the relationship between the speech and display requirements and the interest, and that "none is immediately apparent." 

Judge Eagle did squarely address the "compelling" quality of the State's third and final interest - - - added at oral argument - - - of "promoting life and discouraging abortion," with contradictory language from Casey.  But again, Judge Eagles stressed the relationship prong: "In any event, even if the state has a compelling interest, the state has provided no evidence that alternatives more in proportion to the resulting burdens placed on speech would not suffice."

North Carolina is not alone is passing these restrictive and controversial mandates regarding ultrasounds, although as Judge Eagles' decision demonstrates, they are deeply problematical under First Amendment doctrine.

RR

Seventh Circuit Dismisses Free Speech, Patronage Case

The Seventh Circuit today rejected the free speech claim of a frustrated candidate for promotion in the Cook County Sheriff's Office.  The case, Brown v. County of Cook, arose out of a sargeant's claim that he was denied promotion to lieutenant after he failed to support the Sheriff--and indeed supported his opponent--in the Sheriff's earlier election and re-election campaigns.

The plaintiff, Thomas Brown, brought the case under Rutan v. Republican Party of Illinois, another political patronage case coming out of Illinois, holding that "[u]nless these patronage practices are narrowly tailored to further vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms."

But Brown didn't even get that far.  Instead, the case turned on whether patronage was even a motivating factor.  Judge Posner wrote that the Seventh Circuit just this month affirmed its burden-shifting approach to that question:

If Brown presented evidence at the summary judgment phase of the litigation that could convince a reasonable jury that his political affiliation was a motivating factor in his being passed over, the burden would shift to [Sheriff] Sheahan to present evidence that could convince a reasonable jury that Brown's political affiliation was not a "but for" cause of the discrimination. . . .

To restate [our standard] in simpler terms, if Brown can prove that he would have been denied promotion because of his political affiliation alone, then to avoid an adverse judgment Sheahan would have to show that even so Brown would have been denied promotion for some other reason, in which event his political affiliation had no causal significance.  If Sheahan can meet that burden, it is as if he had told Brown "I can't promote you because there's no opening for another lieutenant, but if there were I still wouldn't promote you, because you made a donation to my opponent five years ago."  There would be no constitutional violation because if Sheahan was being truthful Brown would not be worse off as a result of his political affiliation than if he'd contributed to Sheahan's campaign instead.

Op. at 2-3.

The problem here: Brown had no evidence.  None.  And what he did produce did far more to entertain Judge Posner than it could ever do to prove his case.  The opinion's a good read, and the case is a good lesson in how not to win a First Amendment claim under Rutan.

SDS

Florida's Mandatory Drug-Testing for "Welfare Recipients" Enjoined by Federal Judge

In an Order today, Federal District Judge Mary Scriven issued a preliminary injunction against the enforcement of Florida Statute §414.0652, a law championed by controversial governor Rick Scott requiring drug testing for each individual who applies for benefits under the federally funded TANF (Temporary Assistance for Needy Families) program to take a drug test, which must occur at an "approved laboratory" and be paid for by the applicant. 

In Lebron v. Wilkins, the challenger sought a preliminary injunction and argued that the statute violated the Fourth Amendment's protection against unreasonable searches.  The State argued the requirement for acquiescence to a drug test is not a search within the meaning of the Fourth Amendment; the statute is justified by the “special needs” of the State to conduct drug testing within the ambit of its administration of TANF funds; the plaintiff will suffer no irreparable harm in the absence of an injunction because he is free to refuse the drug test; and the public interest lies in ensuring that public funds are expended for their intended purposes and not in ways that will endanger the public.

Judge Scriven rejected each of these contentions. 

Certainly drug tests are within the ambit of the Fourth Amendment, Judge Scriven held, with a surfeit of citations to support her conclusion. 

Her most pointed analysis, however, concerned the State's argument of "special needs" for testing applicants for TANF.  The State's argument was undermined by the State's own evidence.  Florida's first drug-testing regime started in 1996 as a "Demonstration Project" to study and evaluate the “impact of the drug-screening and drug-testing program on employability, job placement, job retention, and salary levels of program participants” and to make “recommendations, based in part on a cost benefit analysis, as to the feasibility of expanding the program,” including specific recommendations for implementing such an expansion.   This program was allowed to expire by the Florida lesgilature under the statutory sunset provisions because the studies showed that TANF applicants rarely tested positive for substance abuse.  Indeed, they tested positive at a lower rate than the estimate for the Florida population at large.   Thus, the "exceptional circumstances" necessary to support "special needs" was contradicted by the State's own evidence.

As Judge Scriven wrote:

the State invokes the government’s general interest in fighting the “war on drugs” and the associated ills of drug abuse generally to contend that TANF funds should not be used to fund the drug trade. The Court agrees. But, if invoking an interest in preventing public funds from potentially being used to fund drug use were the only requirement to establish a special need, the State could impose drug testing as an eligibility requirement for every beneficiary of every government program. Such blanket intrusions cannot be countenanced under the Fourth Amendment.

What the Fourth Amendment requires is that such incursions by the Government must be reserved for demonstrated special needs of government or be based on some showing of reasonable suspicion or probable cause. The State has made no showing that it would be “impracticable” to meet these prerequisites in the context of TANF recipients. Any suggestion that it would be impracticable should be based on some evidentiary showing, and any such showing would likely be belied by the fact that other states competently administer TANF funds without drug tests or with suspicion-based drug testing and no other state employs blanket suspicionless drug testing.

The judge entered a preliminary injunction as to the individual plaintiff Lebron and noted the State's stipulation to apply the court's ruling to all persons similarly situated.

RR
[image: William Harper, Florida Landscape via]

Bork’s “75 page” Memo to Goldwater on the 1964 Civil Rights Act’s Unconstitutionality?

Did Robert Bork, as a law professor, write a “75 page” brief to Presidential Candidate Barry Goldwater arguing that the bill that would become the 1964 Civil Rights Act was unconstitutional?

Bork (pictured left) the controversial conservative and rejected Supreme Court nominee, has reappeared on the political scene as the co-chair of the legal advisory team of potential GOP Presidential candidate Mitt Romney.   He has recently also made news for opining that women are no longer discriminated against and do not need constitutional attention.

Bork has also long been famous for his argument that the 1964 Civil Rights Act, including Title VII, is unconstitutional.  Rand Paul has also made this argument, although at least one commentator distinguishes Rand Paul’s position from Goldwater’s based upon Goldwater’s “constitutional concerns” rooted in the “75 page brief” Bork sent to Goldwater as well as future Chief Justice William Rehnquist’s concerns.

When internet references to the “75 page” memo or brief mention a source, they cite to Richard Perlstein’s Before the Storm: Barry Goldwater.   Speaking on C-Span (written transcript provided), Perlstein in 2001 discussed Goldwater’s agonizing over the 1964 Civil Rights Bill which was resolved by the influence of Rehnquist’s statements and Bork’s 75 page memo against the Act.   In Perlstein’s book, he sources the Bork brief to James Perry, [A Report in Depth on] Barry Goldwater: A New Look at A Presidential Candidate.   Perry’s “Report in Depth” is a “Newsbook” peppered with photographs, published by the National Observer in 1964.   In the chapter “Men Around Goldwater,” the author names Bork as a “Goldwater favorite” and one of a number of law professors to whom “the Goldwater idea men went for advice” on the 1964 Civil Rights Bill.  Perry wrote:

The Goldwater staff asked for an objective, legal analysis by Professor Bork of the civil-rights bill.  They received a 75-page critique, which was used (along with other analyses) in preparing Mr. Goldwater’s statement against the bill.

 (at 25).

Scholars wishing to read the “75-page critique” by Bork sent to Goldwater - - - or to Goldwater’s staff - - - will have a difficult time obtaining it, as I learned when I asked faculty law librarians.  The memo is not in the seven volumes of Bork nomination materials compiled by Roy Mersky and J. Myron Jacobstein in their series of Supreme Court Nominees.  The Mersky and Jacobstein Volume 14-F, however, does include Bork’s notorious piece for The New Republic, “Civil Rights—A Challenge,” (August 31, 1963), arguing that the Act would be a “loss of liberty,” as well as the New Republic Editors’ reply and Bork’s rejoinder (here).  It is apparently not in the Goldwater papers at the Arizona Historical Foundation at Arizona State University or in the papers of Dean Burch, also at ASU, the Chair of the RNC in 1964.   As for the papers of Robert Bork, there may be some at the Library of Congress, although apparently Bork retains the authority to grant access.

Does the “75 page” memo still exist - - - perhaps a Xerox of a carbon copy - - - in someone’s files?  Did it ever?     

Almost a half-century has passed.  It is not that a missing document is nefarious (indeed, it sometimes seems a wonder that anything is preserved) or that Bork should be assumed not to have changed his opinions (indeed, he has recently stated that the “transition to a non-discriminatory society was much easier” than he thought it would be).  But page-number precise references to a document that is not available is intriguing. 

So, if you have a copy or have read a copy of that "75 page" memo, I’d love to hear from you.

RR
[image: Robert Bork, 2007, via]

Next Steps for Libya

The Libyan National Transitional Council today declared Libya liberated from the Gaddafi regime and set the country on a path toward multiparty elections and a democratic constitution.  Prime Minister Mahmoud Jibril told the World Economic Forum yesterday that the NTC will set elections for a transitional national congress within 8 months.  The body will draft a new constitution, to be put to Libyans in a referendum, and form an interim government until the first presidential elections are held.  For more, check out reports from Al Jazeera, Reuters, allAfrica.com, and the Gulf Times.

Whatever the NTC and the new congress come up with, it'll surely be an improvement over Gadhafi's home-made rambling handbook on governance, the Green Book.

SDS

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."

SDS

 

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.

The Arizona/Brewer counterclaim asserted five claims and Judge Bolton rejected each one, although she found that Arizona had standing to raise the claims.

 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):

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department;
[2] a lack of judicially discoverable and manageable standards for resolving it;
[3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
[4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
[5] an unusual need for unquestioning adherence to a political decision already made;
[6] 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
Amendment.

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.

RR

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.

SDS

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.

RR

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.

RR

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.

RR

"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."

RR
[image via]

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.

SDS

Alabama Immigration HB56: Additional Provisions Stayed by the Eleventh Circuit

With little substantive discussion in its 16 page Order today, a panel of the Eleventh Circuit Court of Appeals issued an injunction pending appeal on two sections of Alabama's highly controversial immigration law, HB 56.

Recall that on September 28, the district judge enjoined various sections of the statute in very lengthy separate opinions in the companion cases of United States v. Alabama and Hispanic Interest Coalition of Alabama v. Bentley. 

Ruling on motions for injunction pending appeal, the Eleventh Circuit enjoined section 10 and section 28 of HB56:

Section 10(a) creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States. 

Section 28 requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.

  While granting injunctions on sections 10 and 28, the Eleventh Circuit panel denied the request to enjoin sections 12(a), 18, 27, and 30. Thus, the following provisions of HB56 remain in effect:

UPDATE HERE

H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.

H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.

H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.

H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.

Judge Barkett dissented as to sections 12 and 18. 

RR

Funeral Protests: The Saga Continues with a Circuit Split

UPDATE HERE

The United States Supreme Court's decision in Snyder v. Phelps last term has not solved the issue of the constitutionality of laws prohibiting protests at or near funerals. 

Such laws have become widespread in reaction to the activities of the same organization involved in Phelps with its penchant for protesting at funerals to express its views regarding "homosexuality," although the connection to sexuality is often tenuous at best.   

However, while Snyder v. Phelps involved a damages award in favor of the father of the deceased for infliction of emotional distress, the circuit split involves enactments that seek to directly regulate funeral protests.

For example, a Manchester, Missouri ordinance prohibits "picketing or other protest activities . . .
within three hundred (300) feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one (1) hour before or one (1) hour after the conducting of any actual funeral or burial service at that place."

On the other hand, an Ohio statute provides that "no person shall picket or engage in other protest activities, nor shall any association or corporation cause picketing or other protest activities to occur, within three hundred feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one hour before or one hour after the conducting of an actual funeral or burial service at that place...."

One would assume that both of these enactments would share the same constitutional fate.  They are identical in their essentials: time (one hour before and after an actual funeral) and place (300 feet within specified places). 

Yet the Manchester, Missouri ordinance was declared unconstitutional earlier this month by the Eighth Circuit in Phelps-Roper v. City of Manchester. 

The Sixth Circuit held the Ohio statute constitutional in Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008).

The Eighth Circuit's per curiam opinion is exceedingly cursory; the First Amendment analysis is two paragraphs.  The first paragraph disagrees with the district court that the ordinance was a content based regulation.  As for the second paragraph, it concludes that the district court was required to follow the Eighth Circuit precedent of Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008), another funeral protest statute case, this one involving the Missouri statute.

Judge Murphy's concurrence in the per curiam opinion - - - a concurrence that often reads like a dissent - - - makes clear how misguided it was for the panel to have been bound by the earlier Eighth Circuit case.  Murphy writes that in Nixon, the earlier case, "a panel of our court analyzed a quite different funeral protest statute and concluded that Phelps-Roper was "likely to prove any interest the state has in protecting funeral mourners from unwanted speech is outweighed by the First Amendment right to free speech.""

Indeed, the Missouri statute in Nixon did not have a "300 feet" provision, the kind of "zone" or "bubble" familiar in anti-abortion protest laws that have been upheld as constitutional.  Moreover, the procedural posture in Nixon was that of a preliminary injunction; the panel specifically stated it did not reach the merits of the claim. 

Judge Murphy "respectfully" suggests that the United States Supreme Court opinion in Snyder v. Phelps "provides the proper method of analysis for deciding whether the Manchester ordinance is constitutional."

It would certainly seem so.  And it would certainly seem that the certiorari petition is likely, especially given that the US had filed an amicus brief in the Eighth Circuit on behalf of the City of Manchester.

RR
[image: Phelps-Roper protest at funeral of Vice President Joe Biden's mother, via]